UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE ENCYCLOPEDIA OF UNITED STATES SUPREME COURT REPORTS be:ing a' Complete Encyclopedia of All the Case Law of the Federal Supreme Court up to and including Volume 225 U. S. Supreme Court Reports (Book 56 Lawyers' Edition) UNDER the; editorial supervision oe THOMAS JOHNSON MICHIE VQlume XII---Supplement THE MICHIE COMPANY, LAW PUBLISHERS CHARLOTTESVILLE, VA. 1913 Copyright, 1913 BY The ]\IiCHiE Company n-^^ry HOW TO USE THE SUPPLEMENT. Having first consulted the original work, refer to the same title in the Sup- plement and the same page and note number. The first number in the notes re- fers to the page of the original work where the additional matter belongs. The second numbjer refers to the note on that page. New matter is placed in the Supplement where it would have been placed in the original work if it had been then available and the notes for such new matter are distinguished by the ad- dition of letters. Thus 3 4- 7a indicates that new matter has been inserted on page 34 between notes 7 and 8. In the Supplement the analysis of the original work has been preserved. TABLES OF TITLES AND WORDS AND PHRASES. I. TITLES. Italics indicate cross-references. Abandoned and Captnred Property, 1. Abatement, 1. Abatement, Revival axd Survival, 1. Abduction and Kidnapping, ?,. Abiding the Event, 3. Abode, 3. Abolition, 3. Absconding, 4. Absentees, 4. Abutting Ozcners, i. (Accession. Accretion and Reliction, 4. Accident Insurance, 5. Accommodation Paper, o. Accomplices and Accessories, 5. Accord and Satisfaction, 5. Accounting, 5. Accounts and Accounting, 6. Accretion, 6. Accrual of Action. 6. Accrued Interest, 6. Accusation, 6. Acknozvledge, 6. Acknowledgments, 7. Acquiescence, 7. Acquit, 7. Action of Deceit, 7. Actions, 7. Act of God, 8. Acts of Bankruptcy, 8. Act of Congress, 8. Actual Controversy. 8. Additional Costs, 8. Additional Punishment, 8. Additional Security on Appeal, 8. Additional Servitude, 8. Adequate Remedy at Lazv, 8. Adjoining Landozvners, 8. Adjourned Session, 8. Adjournments, 9. Adjudication, 9. Administration. 9. Administrators, 9. Administratrix, 9. Admiralty. 10. Admissions, 14. Admissions in Evidence, 14. Admissions in Pleading, 14. Adultery, Fornication and Lewdness, 15. Advancements, 15. Adverse Interest, 15. Adverse Possession, 15. Affidavits, 16. Affirmance, 16. Affreightment. 16. Against the State, 16. ^4^(7»cv, 16. Aggregation, 16. Aggrieved Party, 16. Agistment, 16. Agreed Case, 17. Agreement, 17. Alcoholic Liquors, 17. Aliens, 18. Alimony, 25. Allegata and Probata, 25. Allegiance, 25. Allotment, 25. Allozvance, 25. Alluvion, 25. Alteration of Instruments, 25. Alternative JVrits, 25. Ambassadors and Consuls, 25. Ambiguity, 25. Amendments, 26. Americans, 26. Amicus Curia, 26. Amount in Controversy, 27. Ancestor, 27. Anchored Vessels, 27. Ancient Documents, 27. Ancillary Jurisdiction, 27. Animals. 27. Animals Ferce Naturce, 31. Annexation of Territory, 31. Annuity, 31. Another Suit Pending. 31. Anszver, 31. Anticipation, 31. Anti-Trust Lazvs, 31. ^/>^:t:, 33. Appeal and Error. 34. Appeal Bonds, 143. Appearance Bail, 143. Appearances, 144. Arbitrary Classification, 147. Arbitration and Award, 148. Argentine Confederation. 148. Argument of Counsel. 149. Army and Navy, 150. Arrest, 152. Arrestment, 152. Arrest of Judgment, 152. .4rf.y, 153. Assault and Battery, 153. ^4.y.y^.f.y;nf;!/.y. 153. Assignments, 153. Assignments for Benefit of Creditors, 154. Assistance, Writ of, 154. Associations, 155. Assumpsit, 155. Assumption of Risks, 155. Attachment and Garnishment, 156. Attempts and Solicitations to Commit Crime, 157. VI TABLE OF TITLES. Attestation, 157. Attorney and Client, 158. Attorney General, 160. Auctions and Auctioneers, 160. Audita Querela, 160. Autrefois, Acquit and Convict, 161. Avulsion, 165. Azvard, 165. Badges of Fraud, 165. Bail and Recognizance, 166. Bailments, 167. Bank Bill— Bank Kates, 167. Banker's Lien, 167. Bank Examiner, 167. Bank Guaranty Fund, 167. Bankruptcy, 168. Banks and Banking, 184. Barratry, 200. Bastardy, 201. Beneficial and Benevolent Associations, 201. Beneficiaries, 201. Bequest, 201. Best and Secondary Evidence, 202. Beyond a Reasonable Doubt, 202. Bigamv and Polygamy, 202. Bill of Exceptions, 202. Bill of Exchange, 202. Bill of Lading, 202. Bill of Particulars, 202. Bill oe Review, 203. Bill of Revivor, 203. Bill of Rights, 203. Bill of Sale, 203. Bills, Notes and Checks, 204. Bill to Quiet Title, 205. Blasting Powder, 205. Blockade, 205. Bloodstains, 205. Board of Directors, 205. Boats, 205. Bona Fide, 205. 5on^.y, 205. Bottomry and Respondentia, 205. Boundaries, 206. Bounties, 210. Boxing and Cutting Timber, 210. Boycott, 210. Brakeman, 210. Branch Road, 210. Branding, 210. Breach of Contract, 210. Breach of the Peace, 211. Bribery, 211. Bridges, 211. 5nV/.y, 212. Brokers, 212. Building and Loan Associations, 214. Building Contracts, 214. Building Restrictions and Restrictive Agree- ments, 214. Burden of Proof, 214. Cfl//j, 214. Canals. 214. Cancellation, 214. Capture, 215. Carriers, 216. Car Trust Associations, 227. Cn.r<' Agreed, 227. Caj^ Certified, 227. i CoJ^ 5;a/^rf, 227. Cashier, 227. Cause of Action, 227. Caveat— Caveator, 227. Ceded Territory, 227. Cemeteries, 227. Certificate of Acknowledgment, 227. Certificate of Deposit, 227. Certificate of Division of Opinion, 227. Certificate of Stock, 228. Certified Check, 228. Certified Copies, 228. Certiorari, 228. Cession, 228. Challenge, 228. Chambers and Vacation, 228. Champerty and Maintenance, 228. Chancery^ 228. Change 'of Venue, 228. Charities, 229. Charter, 229. Charter Party, 229. Chattel Mortgages, 230. Checks, 231. Cherokee Children, 232. Chinese Exclusion Acts, 232. Choctaw Treaty, 234. C hoses in Action, 234. ♦ Church, 234. Circumstantial Evidence, 234. Citizenship, 235. Civil Rights, 236. C/t'// Service, 240. C/t'// fi^ar, 240. Claims, 241. C/a.y.y Legislation, 241. Clerks of Court, 241. C/2>H^ 242. Closed Season, 242. Cloud on Title, 242. Coa/ Lands, 242. Coc?^ Pleading, 242. Coemployees, 242. Co/«, 242. Collateral Attack, 242. Collateral Security, 242. Collections, 242. Colleges and Universities, 242. Collision. 243. Co/or o/ Tj7/c, 244. Combinations, 244. Combinations in Restraint of Trade, 244. Comity, 244. Commercial Agreements and Conventions, 244. Commercial Paper. 244. Commercial Treaties, 244. Commitment and Preliminary Examination of Accused, 245. Common Carriers, 245. Common Law, 245. Common Property, 246. Common Stock, 246. Community Estate, 246. Community Property, 246. Commutation of Sentence, 246. Compacts, 246. Comparative Negligence, 247. Compromise and Settlement, 247. TABLE OF TITLES. VII Comptroller of Currency, 247. Computation of Pay of Officers, 24:7. Concealment, 247. Conclusions of Law, 247. Concurrent Jurisdiction, 247. Concurring Xegligcnce, 247. Condemnation of Prise, 247. Condemnatio)i of Property, 247. Condemnation Proceeding, 247. Conditional Sales, 247. Conditions, 248. Confession of Judgment, 248. Confessions, 249. Confidential Communications, 249. Confirmation of Land Claims, 249. Confiscation of Property, 249. Conflicting Jurisdiction, 249. Conflict of Laws, 250. Conformity Act, 254. Confusion of Goods, 254. Congress, 254. Connecting Carriers, 254. Conquered Territory, 254. Conquest, 254. Consent Judgments and Decrees, 255. Consideration, 255. Consignee, 255. Consolidation of Actions, 256. Conspiracy, 256. Constitution, 263. Constitutional Law, 264. Construction, 366. Consuls, 366. Contemporaneous Construction, 366. Contempt, 367. Contest, 371. Contingent Remainder, 371. Continuances, 371. Contract Labor Law, 372. Contractors, 373. Contractor's Bond, 373. Contracts, 373. Contracts of Affreightment, 375. Contracts of Guaranty, 375. Contracts of Hire, 375. Contribution and Exoneration, 375. Contributory Negligence, 375. Conversion and Reconz'crsion, 376. Copies, 376. Copyright, 377. Coram Nobis, 381. Cor^, 381. Coroners, 381. Corporation Commission, 381. Corporations, 381. Corporation Tax, 395. Costs, 396. Cotenants, 396. Counterclaim, 396. Counties, 397. Coin; fo^" 397. Counts, 397. Coupons, 397. Court of Claims, 397. Court of Inquiry, 397. Courts, 398. Courts-Martial, 433. Covenant, Action of, 433. Covenants, 433. Coverture, 433. Cr£7rf!f, 433. Creditors' Suits, 434. Crimes, 434. Criminal Conspiracy, 434. Criminal Law, 434. Cross Bills. 453. Cr OSS-Examination, 454. Crossings, 454. O'ift?/ and Unusual Punishment, 455. Cuba, 455. Cuban Laze, 455. Cumulative Evidence, 455. C/n-^cjv, 455. Custodia Legis, 455. Custody of Prisoner, 455. Custom Duties, 455. Custom Laws, 455. Customs, 455. Cutting Timber on Public Lands, 455. Damages, 455. Damnum Absque Injuria, 456. Dams, 456. Da/^, 456. Da/j Work, 456. Dealing in Futures, 456. Death, 456. Death by Wrongful Act, 456. D^flf/t Dm/j', 457. Z?(? Bonis Non, 457. Debt. The Action of, 457. !)£•&?.?, 458. D^i'/.y o/ Decedents, 458. Decedents, 458. Deceit, 458. Decision, 458. Declaration, 459. Declarations and Admissions, 459. Decrees, 459. Decrees Pro Confesso, 459. Dedication, 459. Deeds, 459. Deeds of Trust, 459. D(? Far^o Corporations, 459. De Facto Officers, 460. F't' Fac^o Sovereign, 460. Defalcation, 460. Defa)nation, 460. Default, 460. Default in Pleading, 460. Default Judgments, 460. Definitions, 460. Z?^ /j/re Officers, 460. Dr/rtv. 460. Delaying Creditors, 461. Delegation, 461. Delinquents, 461. Delivery, 461. Demand, 461. Demurrer to the Evidence, 461. Demurrers, 461. Denial, 462. Deportation, 462. Deposit, 462. Depositions, 462. Depositor, 462. Deposito/s Guaranty, 462. Depreciated Currency, 462. Deputies, 462. VIII TABLE OF TITLES. Descent and Distribution, 463. Desertion, 463. Desert Land, 463. Destruction, 463. Detinue, 463. Devise, 464. Diligence, 464. Diplomatic and Consular Officers, 464. Directing Verdict, 464. Directors, 464. Direct Tax, 464. Disbursing Officers and .Igents, 464. Discontinuance, 464. Discontinue, 464. Discount, 464. Discovery, 465. Discretional Duties, 465. Discrimination, 465. Discrimination on Account of Color, 465. Dijc Sound Records, 465. Disfranchisement, 465. Dishonor, 465. DisMiss.\L, Discontinu.\nce and Nonsuit, 466. Dissolution, 467. Dissolution of Trusts,. 467. Distance, 467. Distiller's Bond, 467. Distress, 467. Distribution, 467. District and Prosecuting Attorneys, 467. District Court, 467. District of Columbia, 46S. Diverse Citizenship, 468. Divestiture of Jurisdiction, 468. Division of Opinion, 468. Division of Territory, 468. Divorce and Alimony, 468. Docket, 469. Documentary Evidence, 469. Documents, 471. Domestic Relations, 472. Domicile, 472. Dominion, 472. Double Taxation, 472. Dower, 472. Dra/f, 472. Drainage, 472. Drains and Sewers, 472. Drawback, 474. Drawbridge, 474. Drawer, 474. Drummers, 474. Drunkenness, 474. Dm^? Diligence, 474. Due Process of Law, 475. Duress, 533. Duties and Imposts, 533. Dying Declarations, 533. Easements, 534. £&t fl»rf F/ow, 534. Eight-Hour Lazv, 534. Ejectment, 535. Ejusdeni Generis, 535. Election of Remedies, 535. Elections, 535. Electricity, 536. Elements, 536. Embargo and Xonintercourse Laws, 536. Embezzlement, 536. Emergency, 536. Emigration, 536. Eminent Domain, 537. Employers and Employees, 549. Employers' Liability Act, 549. Endorsement, 549. Engrossing, 549. Enjoin, 549. Entirety, Estates by, 549. Entrymen, 549. Equal Protection of Law', 549. Equitable Defenses, 550. Equitable Estate, 550. Equitable Estoppel, 550. Equitable Relief against Judgment, 550. Equitable Set-Off, 550. Equity, 550. E,quity of Redemption, 552. Equivalents, 552. Error, Writ of, 552. Escape, 552. Escheat, 552. Escrozv, 553. Estate, 552. Estates, 552. Estates of Absentees, 552. Estates of Decedents, 552. Estoppel, 553. Estoppel by Record, 557. Estoppel in Pais, 557. Evidence, 558. Examination of Witnesses, 558. Exceptions and Objections, 558. Exceptions, Bill of, and Statement of- Facts on Appeal, 559. Excessive Damages, 562. ' Excessive Taxation, 562. Exchange, Bill of, 562. Exchange of Property, 562. Exchanges, 562. Excise Tax, 562. Exclusive Rights, 562. Excusable Homicide, 562. Executed Contracts, 562. Executed Trusts, 562. Execution against the Body and Arrest in Civil Cases, 562. Execution and Proof of Documents, 562. Execution of Wills, 522. Executions, 563. Executors and Administrators, 564. Executory Interest, 568. Exemplification, 568. Exemptions, 568. Exoneration, 568. Expatriation, 568. Experiments in Evidence, 568. Expert and Opinion Evidence, 569. Expert Witnesses, 569. Explosions and Explosives, 569. Ha- Po.yf Fac^o Laws, 570. Express Companies, 570. Expressio Unius, 570. Express Alalice, '570. Express Trust, 570. Extension, 570. Extortion, 570. £.r/ra Allowance, 570. TABLE OF TITLES. IX Extra Compensation, 570. Extradition, 571. Extraordinary Remedies, 577. Extra Pay, 577. Extraterritorial, 557. Factors and Commission Merchants, 577. Failure of Comideration, 578. Faith, 578. Faith and Credit, 578. False Entry, 578. False Imprisonment, 578. /'"a/.s-c Pretenses and Cheats, 578. /'o/.?L" Representations, 578 Falsification of Public Documents, 578. Falsifying Records, 578. Family Settlements, 578. Favored Nation Clause, 578. Federal Constitution, 578. Federal Courts, 578. Federal Employers' Liability Act, 578. Federal Question, 578. /^^^.y fl»rf Emoluments, 579. Fellow Serv.\nts, 579. Felony, 582. Feme Covert or Feme Sole, 582. Fence Lazv. 582. Fences. 582. i^^rff Naturcc, 582. Ferries, 582. Fidelity and Guaranty Insurance, 582. F;VrJ Facias, 582. Final Judgments or Decrees, 583. Findings of Court, 583. Fines, 583. F/r^ Insurance, 583. f iV^5, 583. Fish and Fisheries, 583. Fixtures, 583. f/a^, 583. F/a^ Lieut enani, 583. /^o/fo Charge, 583. Foods and Drugs, 584. Forcible Entry and Detainer, 584. Foreclosure, 584. Foreign Commerce, 584. Foreign Corpor.\tions, 584. Foreign Executors and Administrators, 591. Foreign Extradition, 591. Foreign Judgments, Records and Judicial Proceedings, 592. Foreign Laws, 595. Foreign Ministers, 596. Forest Reserve. 596. Forfeiture, 596. Forged, 596. Forgery and Counterfeiting, 596. Former Acquittal and Conviction, 596. Former Recovery, 596. Forthcoming and Delivery Bonds, 590. Fourteenth Amendment, 597. Franchise, 597. Fraud and Deceit, 597. Frauds, Statute of, 600. Fraudulent .\nd Voluntary Conveyances, 600. Fraudulent Representations, 604. Friend of the Court, 604. Frivolous Appeals, 604. Fugitive from Justice, 604. /^?(// Cr^zc .r^t-/, 604. Fh// Fa;7A fl«d Credit Clause, 604. Future Earnings, 605. Gambling Contracts, 605. Game and Game L.-\ws, 605. Gaining, 607. Garnishment, 607. Gas, 607. General Agent, 607. General Appearance, 607. General Average, 608. General Custom, 608. General Deposit, 608. Giyf.y, 608. GooJ FojV/!, 608. Goo(/ fF///, 608. Government, 608. Governor, 608. Grand Jury, 309. Grantee, 611. Grants, 611. Grants for Parks, 611. Grants in Prcesenti, 611. Gross Negligence, 611. Ground Rents, 611. Guaranty, 611. Guaranty Insurance, 611. Guardian Ad Litem, 611. Guardian and Ward, 611. Habeas Corpus, 612. Habitual Criminals, 617. Handzvriting, 617. Harmless Error, 617. Harter Act, 617. Hawkers and Peddlers, 617. Heads of Departments, 617. Health, 617. Hearing, 617. Hearsay Evidence, 618. //(?/r, Heirs and the Like, 618. Highivaxs, 618. HiV^, 618. Homestead, 618. Homestead Claim. 019. Homestead Exemptions, 619. Homestead Law, 019. Homicide, 619. Hospitals and Asylums, 619. Husband and Wife, 620. /Jr;/t Sonans, 621. Identical, 621. Identification, G21. Identity, 621. Identity of Parties, 621. I dent it V of Suits, 621. Mo/.y,'022. Illegal Contracts. 022. ////ViV Gratuities— Graft, 622. Immigration, 023. Immunity, 623. Immunity from Suit, 023. Inununity from Trial, 623. Impairment of Obmg.\tion of Contracts, 624. Impeachment, 639. Impeachment of Witness, 639.- Implied Contracts. 639. Implied Trusts, 639. Implied Warranty, 639. TABLE OF TITLES. Imports — Imported, 639. Impost, 639. Imprisonment for Debt, 639. Improvements, 640. Imputable Negligence, 640. Imputed Knozvledge, 640. Inadequate Consideration, 640. Incidental and Implied Pozvers, 640. Income Tax, 640. Incorporation, 640. In Cnstodia Lcgis, 641. Indemnity, 641. Indemnity Lands, 641. Indemnity Limit, 641. Independent Contractors, 641. Index, 641. Indian Agent, 641. Indian Commerce, 641. Indian Country, 641. Indian Depredation Act, 641. Indian Lands, 641. Indians, 641. Indictments, Informations, Presentments AND Complaints, 652. Indorsements, 655. Indorser, 655. Infants, 655. Inferior Courts, 656. Informations, 656. Informers, 656. Infringement, 656. Inhabitant, 656. Inheritance Tax, 656. Initials, 656. Initiative and Referendum, 656. Injunctions, 657. Innocent Purchaser, 668. /n«j ajid Innkeepers, 668. /» Pari Materia, 668. Inquests and Inquiries, 668. Insanity, 669. Inscription, 669. Insolvency, 669. Inspection and Physical Examination, 669. Inspection Laws, 670. Inspection of Ships, 672. Instructions, 672. Insurable Interest, 673. Insurance, 674. Insurance Adjusters, 685. Insurrection, 685. Intent, 685. Interest, 685. Interlocutory Injunction, 686. Interlocutoiry Judgments, etc., 686. Infernal Commerce, 686. Internal Revenue, 686. Internal Revenue License, 686. International Law, 686. Interpleader, 687. Interpretation and Construction, 688. Interpreters, 689. Interrogatories, 689. Interstate and Foreign Commerce, 689. Interstate Extradition, 803. Intervention, 803. Intestate, 803. Intoxicating Liquors, 803. Invention, 805. Inventory, 805. Irreparable Injury, 805. Irrigation, 805. Irrigation Corporation, 805. Islands, 805. Issue, 805. Issues to Jury, 805. Jeopardy, 805. Joinder, 805. Joinder of Parties, 805. /o/«f Stock Companies, 805. Joint Tenants and Tenants in Co.mmon, 806. Journal Entries, 806. Judges, 806. Judgments and Decrees, 807. Judicial Admissions, 810. Judcial Notice, 810. Judicial Records, 811. Judicial Sales, 812. Judiciary Act, 812. Jurisdiction, 812. Jurisdictional Facts, 813. /wror, 813. Jury, 813. /M.yto Prescription, 815. Justice, Department of, 815. Justices of the Peace, 815. Justifiable Homicide, 815. /jgroc.y, 923. Neutrality, 923. N ewly-Discovered Evidence, 923. Nezvspapers, 923. New Trial, 923. Ninety-Fourth Equity Rule, 924. Nominal Party, 924. Nonjoinder, 924. Non-Maritime Torts, 924. Nonsuit, 924. Nonuser, 924. Notary Public, 924. Notes, 924. Notice, 924. Notice of Pendency, 924. Novation, 924. Novelty, 924. Nuisances, 924. Ort//z, 924. OfeZ/cr D/c/a, 924. Obstructing Justice, 924. XII TABLE OF TITLES. Occupation Tax. 924. Offenses against Civil Service, 924. Officers, 924. Officers and Agents of Private Corpora- tions, 925. Oil, 927. Once in Jeopardy, 927. Onus Probandi, 927. Open and Close, 927. Opening Judgments, 927. Opinion Evidence, 927. Opinions of Courts, 927. Orders of Court, 927. Ordinances, 928. Ordinary Care, 928. Ordinary Negligence, 928. Ore, 928. Oregon Donation Act, 928. Organic Lazv, 928. Organized Labor, 928. Original Bill, 928. Original Jurisdiction, 928. Outlazvry, 930. Overflozved Lands, 930. Oysters, 930. Fa/m Oj7, 930. Paw^/, 930. Pardon, 930. Par£?;jf a»rf C/n/rf, 930. Pari Delicto, 931. Par^.j, 931. Paroi, Evidence, 931. Parties, 932. Parties by Representation, 933. Partition^ 933. Partnership, 933. Part Ozvners, 935. Farfy Walls, 935. Pa.y.y 5oo^, 935. Passenger, 935. Pasturage, 935. Patents, 936. Patent to Land, 945. Paupers, 945. Pawn, 945. Paj, 945. Payment, 945. Pavment into Court, 945. Peddler, 945. Pedigree, 945. Penalties and Forfeitures, 945. Pendente Lite, 946. Pensions, 946. Peremptory Instruction, 947. Perjury, 948. Perpetuities, 948. Personal Actions, 949. Personal Property. 949. Personal Service, 949. Petition, 949. Philippine Islands, 949. Photographs, 949. Physicians and Surc.eons, 949. Pilots, 950. Fm^ LoMt?, 953. Piracy, 953. Place of Trial, 953. Placer Mines, 953. Pleading, 953. P/ra in Abatement, 953. Pledge and Collateral Security, 954. Police Power, 955. Policy of Insurance, 995. Political Contributions, 995. Por/o i?/co, 995. Possession, 995. Possession, Writ of, 995. Postal Laws, 996. Postmaster General, 998. Po.f^ Roads, 998. Pozver of Attorney, 998. Powers, 998. Practice Conformity Act, 999. Practice of Lazu, 999. Prc-Emption, 999. Preference, 999. Preferential Transfer, 999. Premature Suits, 999. Prescription, 999. Presentment, 1000. President of the United States, 1000. Presumptio Juris, 1000. Presumption of Innocence, 1000. Presumptions and Burden of Proof, 1000,. Prima Facie, 1001. Primary Evidence, 1001. Primary Limits, 1001. Principal and Agent, 1001. Principal and Surety, 1003. Priorities, 1005. Prisons and Prisoners, 1005. Private Corporations, 1005. Private Entries, 1005. Private Land Claims, 1005. Private Ways, 1005. Private Wharves, 1005. Privilege, 1006. Privileged Communications, 1006. Privileges and Immunities, 1007. Prize, 1007. Probable Cause, 1007. Probate, 1007. Probate Court, 1007. Probate of Wills, 1007. Probate Proceedings, 1008. Process, 1008. Pro Confesso. 1008. Production of Documents, 1008. Profert and Oyer, 1010. Prohibition, 1010. Promissory Notes, 1010. Proprietor, 1011. Protest, 1011. Provable Claims and Debts, 1011. Province of Court and Jury, 1011. Proving a Will, 1011. Provisional Courts. 1011. Proximate Cause, 1011. Publication of Libel. 1011. Public Documents, 1011. Public Domain, 1011. Pj(fo/jc Health, 1011. Public Improvements, 1011. Public Lands, 1012. Public Ministers, 1035. Public Officers, 1035. Pj/!? o/ Fishery, 1084. Riparian Ozuners, 1084. Riparian Rights, 1084. /?rcrr.y, 1084. 7?oad.y, 1084. Robbery, 1084. Roman Catholic Church, 1084. 7?;//c /» Shelley's Case, 1085. /^m/c o/ Reason, 1085. Rules of Court, 1085. .Sac a»(i Fo;ir Annuities, 1085. Sacrifice, 1085. 5a/^^v Appliance Act, 1085. Sailing Vessels, 1085. Sailors, 1085. .^a/^ o/ Land, 1085. Sales, 1086. .^a/mc Lands, 1088. Salvage, 1088. S'ajne Offense, 1089. Satisfaction, 1089. Savings Banks, 1089. Schedule. 1089. .S'c/too/ A, 1150. 5ji27.y against United States, 1150. 5!n7.s- /or Accounting, 1150 Summary Proceeding, 1150. Summary Seizure, 1150. Summons and Process, 1151. Sundays and Holidays, 1154. Supersedeas and Stay of Proceedings, 1154. Supplemental Bill, 1155. Supreme Court, 1155. Sureties, 1155. Suretyship, 1155. Surface Boundaries, 1155. Surgeons, 1155. 5»rt'^j, 1155. Survival of Actions, 1155. Survivor, 1155. Suspension, 1155. Szxjanip and OvcriiozL'ed Lands, 1155. Szvearing, 1155. Talesmen, 1155. Ta ;-/■#, 1155. Taxation, 1156. Taxation of Costs, 1195. Ta.r Collector, 1195. TflA- D^^c?, 1196. TcfA-cy, 1196. Ta.r Lct/j, 1196. Tff.r 5a /^, 1196. Telegrams, 1196. Telegraphs and Telephones, 1196. Telephones, 1200. Temporary Injunction, 1200. Tenant, 1200. Tenants in Coj>iinon, 1200. Tc/irf, 1200. Tender, 1201. Ten-Hour Labor Lazv, 1201, Terminal Facilities, 1201. r^ir;;? /mo'. 1211. rrifli !?£• Novo, 1211. rWfcfli Citizenship, 1211. Tribal Government, 1211. Tn^a/ Property, 1211. Trover and Conversion. 1212. Tnaf Z)row Condition, 1223. Usages and Customs, 1224. ^'.jMrv, 1224. Vaca'nt Lands, 1224. Vacation, 1224. Validation of Land Claims, 1224. Variance, 1224. Venditioni Exponas, 1225. Vendor and Purchaser, 1225. Vendor's Liens, 1226. Venire Facias, 1226. Venue, 1226. Verbal Agreements, 1229. Verbal Contracts, 1229. Verdict, 1229. Vessel, 1231. Vested Renminders, 1231. Fe.yfrrf Rights, 1231. Vexatious Litigation, 1231. J'oluntary Bankruptcy, 1231. J'oluntary Confessions, 1231. J'oluntary Conveyances, 1231. Voting Trusts, 1231. Fojog£?5, 1231. Waiver and Abandonment, 1231. War, 1232. fFarrf, 1233. Warehouses and Warehousemen, 1233. Warrants, 1233. Warranty, 1233. ff'or Revenue Act, 1233. fFa.yfe, 1233. Waste-Wasting, 1233. Water Commissioners, 1233. Water Companies and Waterworks, 1233. Watercourse, 1236. PFa^er i?(7H/.y, 1236. Waters and Watercourses, 1237. Waterworks, 1239. f-Faj'.y, 1239. Weapons, 1239. Weights and Measures, 1239. Whar\-es and Wharfingers. 1240. White Sla*\-e Traffic, 1240. Wholesale, 1240. Widow's Commuiiitv, 1240. Wills, 1241. Witnesses, 1243. Women Employees, 1245. Working Contracts, 1246. f^^or^5 o/ /4;-f, 1261. Wrecks, 1261. PFWf of G^o Warranto, 1261. H^n^ o"/ i?!>/;/^, 1261. PFrj7.y, 1261. Written Contracts. 1261. Wyandotte Cession, 1261. II. \\ORDS AND PHRASES. Italics indicate cross-references. ABAXDONMnxT. 1. About, 3. Abrogate, 4. Accounts Receivable, 6. Adequate Facilities, 8. Administrati\'E, 9. Adulteration, 14. After. 16. Aid, 17. All, 25. Among, 26. Annul. 31. Another Country. 31. Any, 32. Anything Else, 33. Apparatus, 33. Appraisement. 147. Appropriate, 147. Arise, 149. Arraign, 1.52. Article, 152. Artificial Coloration, 152. Assigns, 154. At, 155. Between, 202. Bookkeeping. 205. Booty of War, 205. Braids, 210. Bringing, 212. Brought, 214. Business, 214. Calculated, 214. Capital — Capital Stock. 214. Capital Crime. 215. Carbonate of Lead, 215. Carried Out, 215. Case, 227. Channel, 228. Charge, 229. Chartreuse, 229. Child — Children. 232. Ciz'il Action, Case, Suit, etc., 235. Civil Officers. 235. Claim, 240. Combination, 244. Commerce, 244. Commodity, 245. Compensation, 247. Compliance, 247. Concrete. 247. confirm.ation, ' 249. CoNSECUTl\-E, 254. Consent, 255. Consideration, 255. Contingent Rights. 371. Continuous — -Continuously, 372. Contributory Infringement, 375. Controversy. 375. Conveyance, 376. Copy. 376. Country, 397. Creditors, 433. Current, 455. Dealer, 456. Debt, 457. Debtor and Creditor. 458. Defraud, 460. Descendants. 462. Description, 463. Deviation. 463. Device, 463. Different, 464. Doing Business, 471. Double Insurance. 472. dram.a.tization. 474. Drugs, 474. Dry Dock. 474. Duties, 533. Edition, 534. Either, 534. Employee, 548. Enemy. 549. Enemy Property. 54!). Enforce. 549. Enter — Entry. 549. Equal — Equally, 549. Especial Privileges, 552. E\-ERY, 557. Excise, 562. Exercise, 5G8. Exigency, 568. Exports and Imports, 570. Extraordinary, 577. Failure. 577. Fair, 578. Federal Corporation-, 578. Fees. 578. ^ Fishing Bill, 583. Foreigner, 591. Forwarding Agent, 596. Freight. 604. From. 604. Function, 604. Gas Check, 607. Gift Enterprise. 608. Grant, 611. Hereafter, 618. HUNYADI. 610. If, 622. Imitation Horsehair, 622. Immoral, 623. Immovable Property, 623. Imposed, 639. Inchoate Liens, 640. Including, 640. Indirect Tax. 655. Innocence. 668. Insidious Machinations. 669. Interlocking Plant, 686. Inter\t:ne, 803. Involved, 805. Judicial, LEGiSLATrnt and Ministerial. 810. XV HI TABLE OF WORDS ASD PHRASES. Just, 815. Labor Associations, 817. Land, 820. Lateral Branch Line, 822. Law, 822. Liability — Liable, 823. Life, 828. Locate — Location, 835. Machine, 837. Magistrate, 837. Manufacture — Manufactures, 850. Mature, 861. Measured in Place, 861. Merchant — Mercantile — Merchandise, 861. Mineral, 864. Misbranded, 873. Mitigation of Sentence, 873. Money, 874. Moot Questions, 891. Nation, 911. Natural State, 913. Of, 924. Office, 924. Or, 927. Original, 928. Osteopath, 928. Other, 928. Otherwise, 929. Out, 930. Passage of Act, 935. Peonage, 947. Perils of the Sea, 947. Person, 948. Polariscopic Test, 954. Political Community, 995. Powder, 998. Practicing Medicine, 999. Private Property, 1005. Privy-Privity, 1007. Proceedings in Rem and in Personam, 1008. Process of Law, 1008. Profits, 1010. Propiedad, 1010. Prosecuted — Prosecution, 1011. Prostitution, 1011. Publication, 1011. Public Taxes, 1039. Public Works, 1039. Purchase, 1040. Pure Colors, 1040. Purpose or Intent, 1040. Putative Criminals, 1040. Qui, Serius, etc., 1044. Real Estate, 1049. Regulate — Regulation, 1054. Repair, 1063. Retail, 1070. Right of Way, 1084. Rubberoid, 1084. Schemes, 1089. Sea Beach, 1089. Sold, 1109. Sole Rights, 1109. Solicit, 1109. Sounding in Tort, llio. Statuary, 1122. Sued, 1150. Suppress, 1155. Take— Taking— Taken, 1155. Their, 1202. Thereafter, 1202. TiTULO, 1203. Trade Rights, 1207. Transport — Transportation, 1207. Treaty Fund, 1210. Unfair — Unfairly, 1216. Union, 1216. Unmanufactured Tobacco, 1223. Verbal Acts, 1229. Vested, 1231. Women, 1245. Would, 1261. Encyclopedia of United States Supreme Court Reports. ABANDONED AND CAPTURED PROPERTY.— See the title Abandoned AND Capture;d Property, vol. 1, p. 1, and references there given. In addition, see post, ^^^\R. ABANDONMENT.— See note 1. ABATEMENT. — As to abatement of suits, see post, Abatement, Revival AND Survival. As to destroying unwholesome food as a public nuisance, see post, Due Process oe Law. ABATEMENT, REVIVAL AND SURVIVAL I. Grounds of Abatement, 2. B. Another Suit Pending, 2. 1. Statement of Rule, 2. 2. Essentials of Defense, 2. b. Identity of Suits or Actions, 2. (1) Test of Identity, 2. c. Necessity for Action to Be Pending in Courts of Same State, 2. (2) Action in State Court as Barring Action in Federal Court, 2. (a) In General, 2. D. Termination, Change or Transfer of Interest, 2. 1. Termination of Official Authority, 2. ll-L Abandonment or forfeiture of min- tioii to give up and relinquish tlie right ing claims. — There may l)e a distinc- claimed.' Saxlehner v. Eisner, etc., Co., tion between the abandonment of a claim 179 U. S. 19, 31, 45 L. Ed. 60. And this and its forfeiture, but no distinction was court in referring in Singer Mfg. Co. v. intended in § 3241, Rev. Stat. Arizona, June Mfg. Co., 163 U. S. 169, 186, 41 L. Ed. providing for "the relocation of for- 118, to the loss of the right of property feited or abandoned lode claims." Clason in a name 'like the right to an arbitrary V. Matko, 223 U. S. 646, 653, 56 L. Ed. 588, mark' by dedication or abandonment, 32 S. Ct. 392. See post, MINES AND quoted with approval the definition of De MINERALS. Marag3\ in his International Dictionary "The loss of the right of property in of Industrial Property as follows: trademarks upon the ground of abandon- 'Abandonment in industrial property is an ment is not to be viewed as a penalty act by which the public domain originally either for nonuser or for the creation and enters or re-enters into the possession of use of new devices. There must be the thing (commercial name, mark or found an intent to abandon, or the prop- sign) by the will of the legitimate owner, erty is not lost; and while, of course, as The essential condition to constitute in other cases, intent may be inferred abandonment is that the one having a when the facts are shown, yet the facts right should consent to the dispossession, must be adequate to support the finding. Outside of this there can be no dedica- 'To establish the defense of abandon- tion of the right, because there can not ment it is necessary to show not onlj' acts be abandonment in the juridical sense indicating a practical abandonment, but of the word." " Baglin v. Cusenier Co., an actual intent to abandon. Acts which 221 U. S. 580, 597, 55 L. Ed. 863, 81 S. Ct. unexplained v.-ould be sufficient to cstab- 669. See post, TR.A.DEMARKS, TRADE- lish an abandonment may be answered by NAMES AND UNFAIR COMPETI- showing that there never was an inten- TION. 15-26 ABATBMBNT, REVIVAL AND SURVIVAL. Vol. I. b. Actions or Suits against Officers or Boards, 2. (1) Suits Involving Personal Delinquency of Officer, 2. (2) Suits Involving Continuing Duty of Officer or Board, 3. II. Raising and Waiving Grounds of Abatement, 3. A. Raising Grounds of Abatement, 3. 1. Dilatory Plea, 3. a. Pleas in Abatement, 3. (2) In Criminal Cases, 3. (b) Time of Filing, 3. (c) Form and Sufficiency, 3. III. Revival or Continuance of Suits or Actions, 3. H. Proceedings Subsequent to Revival, 3. CROSS REFERENCES. See the title Abatement, Revival and Survival, vol. 1, p. 12. As to effect of death of party pending appeal or error, and revival of such proceedings, see post. Appeal and Error. As to judgments and decrees, see post. Judgments and Decrees. I. Grounds of Abatement. B. Another Suit Pending — 1. Statement oe Rule. — See note 2. 2. Essentials oe Defense — b. Identity of Suits or Actions — (1) Test of Identity. — See note 5. c. Necessity for Action to Be Pending in Courts of Same State — (2) Action in State Court as Barring Action in Federal Court — (a) In General. — See note 12. D. Termination, Change or Transfer of Interest — 1. Termination oe Oeeicial Authority — b. Actions or Suits against Officers or Boards — (1) Suits Involving Personal Delinquency of Officer. — See note 65. After his official au- 15-2. Another suit pending — Libel pro- of the ship, as authorized by § 4285, Rev. ceedings. — All further proceedings on a Stat., is fully supported by the leading case libel instituted by salvage .claimants who of Providence, etc.. Steamship Co. v. Hill towed to port a vessel disabled in a colli- Mfg. Co., 109 U. S. 578, 607, 27 L. Ed. 1038, sion must stop upon pleading the pend- 3 S. Ct. 379, 617; The San Pedro, 223- ency in the same court of a separate pro- U. S. 365, 56 L. Ed. 473, 32 vS. Ct. 275. ceeding by the owners of the vessel, 16-5. Test of identity. — See Helm v. claiming the benefits of the limited lia- Zarecor, 222 U. S. 32. 56 L. Ed. 77, 32 S. bility provisions of U. S. Rev. Stat., §§ Ct. 10. See post. LIS PENDENS; RES 4283-4285, U. S. Comp. Stat. 1901, pp. AD JUDICATA. 2943, 2944, as amended by the act of June 18-12. Action in state court as barring 26, 1884 (23 Stat, at L. 57, chap. 121, U. S. action in federal court.— "The rule is well Comp. Stat. 1901, p. 2945), § 18, in which, recognized that the pendency of an ac- conformabl}^ to admiralty rule 54, there tion in the state court is no bar to pro- has been an appraisement of the vessel ceedings concerning the same matter in and her pending freight, and a stipula- the federal court having jurisdiction, for tion entered into for the payment of the Ijoth the state and federal courts have appraised value into court, and a moni- certain concurrent jurisdiction over such tion duly issued, requiring all persons to controversies, and when they arise be- present their claims and make proof. tween citizens of different states the fed- The San Pedro, 223 U. S. 365, 56 L. Ed. eral jurisdiction may be invoked and the 473. 32 S. Ct. 275. See post, ADMI- cause carried to judgment, notwithstand- RALTY; SALVAGE; SHIPS AND ing a state court may also have taken ju- SHIPPING. risdiction of the same case." McClellan The view the federal supreme court t'. Carland. 217 U. S. 268, 54 L. Ed. 762, takes of the statutory injunction declared 30 S. Ct. 501. by § 4285, Rev. Stat., and of its applica- 26-65. Personal delinquency of officer, tion to cases where the vessel has been —Richardson v. McChesney, 218 U S. surrendered and a stipulation entered 487, 54 L. Ed. 1121, 31 S. Ct. 43. See, also, mto, as provided by admiralty rule 54, as Duffield v. Ashurst, 225 U. S. 697, 56 L- a proceeding tantamount to a "transfer" Ed. 1262, 32 S. Ct. 838. Vol. I. ABOUT. ' 26-47 thority terminates, the case, as far as it seeks to accomplish the object of the bill, is at an end, there being no statute providing for the substitution of his suc- cessor in a suit of this character.^-^^ (2) Suits Involving Continuing Duty of Officer or Board. — See note 66. II. Raising and Waiving Grounds of Abatement. A. Raising Grounds of Abatement — 1. Dilatory Plea — a. Pleas in Abatement — (2) In Criminal Cases — (b) Time of Filing. — A plea in abatement on account of irregularities in selecting and impaneling the grand jury must be filed at the first opportunity.^* (c) Form and Sufficiency. — Pleas in abatement on account of irregularities in selecting and impaneling the grand jury which do not relate to the competency of the individual jurors must be pleaded with strict exactness.'''* III. Revival or Continuance of Suits or Actions. H. Proceedings Subsequent to Revival. — Where a suit, originally against a nonresident, is revived after his death, the revivor operates only against the personal representative in the state wherein the suit is brought, the executors and residuary legatees in the other state not being parties, under the elementary rule that service of process outside of the limitation of the state is not operative to bring the parties served within the jurisdiction of the court ordering the process, ^^* ABDUCTION AND KIDNAPPING.— See the title Abduction and Kid- napping, vol. 1, p. 48, and references there given. ABIDING THE EVENT. — See cross references under Abiding the; EvKnt, vol. 1, p. 49. ABODE. — See post, Domicile. ABOLITION. — See post. Slavery and Involuntary Servitude. ABOUT. — About is a relative and frequently ambiguous term, and its pre- cise meaning is affected by circumstances existing when the word is used in a contract, and known to and recognized by the parties. Hence where there was 26-65a. Termination of official author- 34-6a. At first opportunity. — Hyde v. ity. — Richardson v. McChesney, 218 U. United States, 225 U. S. 347, 56 L. Ed. S. 487, 54 L. Ed. 1121, 32 S. Ct. 43. This 1114, 32 S. Ct. 793, citing Agnew V. United case is governed by United States v. Bout- States. 165 U. S. 36, 41 L. Ed. 624. well, 17 Wall. 604, 21 L- Ed. 721; Ber- Under Code of District of Columbia.— nardin v. Butterworth, 169 U. S. 600, 42 The defendants contest the application of L. Ed. 873, and Caledonian Coal Co. ^'. the case on the ground that under the Baker, 196 U. S. 432, 441, 49 L. Ed. 540, District Code a plea in abatement comes which are cited as sustaining the above properly after a demurrer to the indict- proposition in vol. 1, U. S. E., pages 27, 28. ment and before pleas to the matter of The expiration of the term of office of the indictment, such as not guilty or spe- 3. state official, and the induction of his cial pleas. The proposition may be form- successor into office, abates a suit to re- ally correct, but does not preclude the quire him, when certifying the names of court from itself noticing an unreason- nominees for congress to the clerks of able delay or treating the demurrer as the various county courts, to proceed un- raising that objection. Hyde v. United der a specified apportionment act rather States, 225 U. S. 347, 373, 56 L. Ed. 1114, than under a later one, attacked as in- 32 S. Ct. 793. valid, there being no statutory authority 34-7a. Form and sufficiency — Strict ex- for the substitution of his successor in a actness. — Hyde v. Unted States, 225 U. S. suit of this character. Richardson v. Mc- 347. 5G L. Ed. 1114, 32 S. Ct. 793. citing Ag- Chesney, 218 U. S. 487, 54 L. Ed. 1121, 31 new v. United States, 165 U. S. 36. 41 L. S. Ct. 43. Ed; 624, which will be found cited in 1 U. 27-66. Suits involving continuing duty. S. E. 31. And see post. JURY. — Richardson z'. McChesney, 218 U. S. 47-86a. Revivor operating against per- 487, 54 L. Ed. 1121, 31 S. Ct. 43. See, also, sonal representative.— Brown z: Fletcher, Duffield V. Ashurst. 225 U. S. 697, 56 L. 210 U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702. Ed. 1262, 32 S. Ct. 838. 49-52 ACCESSION, ACCRETION AND RELICTION. Vol. I. ambigiiity as to the meaning of the term in a contract, parol evidence was prop- erly adm'issible. The oral evidence identified the premises and gave point and certainty to the meaning of the word.-^'' ABROGATE.— See note la. ABSCONDING.— See post, Attachment and Garnishment. ABSENTEES. — As to distributing estate of absentee, see post, Exe;cutors AND Administrators. ABUTTING OWNERS.— See post. Due Process of Law; Special, Assess- ments; Streets and Highv^^ays. ACCESSION, ACCRETION AND RELICTION. I. Definitions and Distinctions, 4. XL Property Rights, 4. A. Accretion and Reliction, 4. 1. Gradual Accretions, 4. a. Statement of the Rule, 4. b. Application of the Rule, 3. (4) As Affected by Character of the Stream or Body of Water, 5. (GYi) x\ccretions under Civil Law, 5. B. Avulsion, 5. in. Determination of Property Rights, 5. D>^. Pleading, 5. CROSS REFERENCES. See the title Accession, Accretion and Reliction, vol. 1, p. 51, and references there given. In addition, see post, Boundaries. As to refusal of court to reverse decision of court o,f Hawaii in regard to ap- portionment of accretions, see post, Appeal and Error. As to effect of accre- tion on boundaries between states, see post, Boundaries. I. Definitions and Distinctions. See note 5. n. Property Rights. A. Accretion and Reliction — 1. Gradual Accretions — a. Statement of the Rule. — See note 6. 49-3a. "About" a relative term. — Har- by a stream, the banks of which are ten V. Loftier, 212 U. S. 397, 404, 53 L- changed by the gradual and impercepti- Ed. 568, 29 S. Ct. 351. See post, PAROL ble process of accretion or erosion, con- EVIDENCE. tinues to hold to the stream as his bound- 50-la. Abrogation of statutes and de- ary; if his land is increased he is not struction of rights acquired. — There is a accountable for the gain, and if it is dimin- broad distinction between tlie power to ished he has no recourse for the loss." abrogate a statute and the authority to Philadelphia Co. v. Stimson. 223 U. S. 605, destroy rights acquired under such law. 624, 56 L. Ed. 570, 32 S. Ct. 340. See post, Choate v. Trapp, 224 U. S. 665, 56 L. Ed. BOUNDARIES. 941, ,32 S. Ct. 565. See post, CONST!- The loss of land, caused by its wash- TUTIONAL LAW; STATUTES. ing away from time to time, by heavy _ 52-5. Test as to what is gradual and floods and freshets in a rapidly flowing imperceptible.— Philadelphia Co. v. Stim- stream, during the course of years, falls f^on, 223 U. S. 605, 624, 56 L. Ed. 570, 32 upon the riparian owner, so as to preclude S. Ct. 340. him from reclaiming land thus submerged _ 52-6. General rule as to property rights inside the former line of high water. m accretion.— "It is the established rule Philadelphia Co. v. Stimson, 223 U. S. that a riparian proprietor of land bounded 605, 56 L. Ed. 570, 32 S. Ct. 340. Vol. I. ACCOUNTING. 54-57 d. Application of the Rule — (4) As Affected by Character of the Stream or Body of Water. — See notes 17, 18, 19. (6^) Accretions under Civil Laze. — Lands formed gradually in the Philippine Islands by the action of the sea belong to the sovereign. ^^^^ B. Avulsion. — See note 25. III. Determination of Property Rights. DJ. Pleading. — Allegations as to Avulsion. — An allegation that land was washed away from time to time by heavy floods and freshets and that a large part of the land became slightly submerged during a course of years is insuffi- cient to show that there was at any particular time such a sudden, violent and forcible change in the channel of the stream as to entitle the riparian owner to retain the boundary to the original line.^^^ ACCIDENT INSURANCE.— See the title Accident Insurance, vol. 1, p. 58, and references there given. ACCOMMODATION PAPER.— See post, Biels, Notes and Checks. ACCOMPLICES AND ACCESSORIES.— See the title Accomplices and Accessories, vol. 1, p. 63, and references there given. ACCORD AND SATISFACTION.— See the title Accord and Satisfaction, vol. 1, p. 69, and references there given. ACCOUNTING. — See post, Partnership; Principal and Agent; United States. 54-17. As affected by height of banks. — Philadelphia Co. v. Stimson. 223 U. S. G05, 624, 56 L. Ed. 570, 32 S. Ct. 340. 54-18. As affected by rapidity of cur- rent and nature of soil. — ^Philadelphia Co. z'. Stimson, 223 U. S. 605, 624, 56 L. Ed. 570, 32 S. Ct. 340. 54-19. As affected by size of stream. — "For example, the general principle of ac- cretion, which has that of diminution as its correlative, applies to such rivers as the Mississippi and the Missouri, not- withstanding the extent and rapidity of the changes constantly effected." Phila- delphia Co. V. Stimson, 223 U. S. 605, 625, 56 L. Ed. 570. 32 S. Ct. 340. 55-23a. Land added to the shore in the Philippine Islands. — Land formed gradu- ally in the Philippine Islands since 1811, by the action of the sea must be deemed to belong to the sovereign, and not to the owner of the uplands, in view of the declaration of the Spanish law of waters of 1866, efifective in the Philippine Is- lands in 1871, that lands added to the shores by the accession and accretions caused by the sea shall belong to the pub- lic domain unless the government shall declare otherwise, which must be re- garded as expressing the imderstanding of the codifiers as to what the earlier law had been. This is especially true in view of the fact that other leading civil law countries have adopted the same doc- trine. It is plain that the law includes and principally means additions that turn the shore to drv land. Ker & Co. v. Couden, 223 U. S. 268, 278, 56 L. Ed. 432, 32 S. Ct. 284. That the question of accretion and al- luvion to the shore is a vexed one is shown not only by the different views of Spanish commentators but by the con- trary provisions of modern codes and by the occasional intimations of the doctors of the Roman law. Ker & Co. v. Couden, 223 U. S. 268, 275, 56 L. Ed. 432, 32 S. Ct. 284. 55-25. Avulsion. — Philadelphia Co. z/. Stimson, 223 U. S. 605. 624, 56 L. Ed. 570, 32 S. Ct. 340. "It is when the change in the stream is sudden, or violent, and visible, that the title remains the satne. It is not enough that the change may be discerned by comparison at two distinct points of time. It must be perceptible when it takes place." Philadelphia Co. v. Stimson, 223 U. S. 605, 624, 56 L. Ed. 570, 32 S. Ct. 340. 57-35a. Allegations as to avulsion. — ■ Philadelphia Co. r. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. 74 ACKNOWLEDGE. Vol. I. ACCOUNTS AND ACCOUNTING. in. Jurisdiction, 6. IV. Limitations and Laches, 6. CROSS REFERENCES. See the title Accounts and Accounting, vol. 1, p. 70, and references there given. In addition, see post, Appeal and Error ; Limitation op Actions and Ad- ve;rse; Possession. As to liability of estate for an attorney to account for fees under an agree- ment of division of fees, see post, Attorne^y and CuEnt. As to suits for ac- counting by policy holders, see post. Insurance. As to accounts between partners, see post, Partnership. As to accounting between principal and agent, see post. Principal and Agent. As to accounting by trustees, see post, Trusts and Trustees. III. Jurisdiction. Rights of Creditors. — A mere creditor, as such, has no right to compel his debtor to account in equity, in the absence of any trust relation between them.2<5a VI. Limitations and Laches. Suit on Agreement as to Division of Attorney's Fees. — Failure to bring suit for an accounting under an agreement to divide the net attorneys' fees re- ceived in the prosecution of French spoliation claims until two years after the enactment of Appropriation Act March 3, 1899, c. 426, 30 Stat. 1161, 1191, [U. vS. Comp. St. 1901, p. 751], from which payment might be made, is not such laches as defeats a recovery.^^^ ACCOUNTS RECEIVABLE.— See note a. ACCRETION. — See ante. Accession, Accretion and Reliction, p. 4. ACCRUAL OF ACTION.— See post, Actions; Bail and Recognizance; Banks and Banking; Limitation op Actions and Adverse Possession. ACCRUED INTEREST.— See post. Interest; Mortgages and Deeds of Trust. ACCUSATION. — See post, Indictments, Informations, Presentments and Complaints. ACKNOWLEDGE.— See post, Acknowledgments. 74-26a. Rights of creditors.— Decree 86, 28 S. Ct. 86. See post, LIMITATION (1907) Brown v. Equitable Life Assur. OI- ACTIONS AND ADVERSE POS- Society of United States, 151 Fed. 1, 81 SESSION. C. C. A. 1, reversed. Equitable Life 74-a. "Accounts receivable of the Assur. Soc. 7'. Brown, 213 U. S. 2.5, 53 L- debtor, that is, the amounts owing to Ed. G82, 29 S. Ct. 404. him on open account, are of course as _74-30a. Suit on agreement as to di- susceptible of preferential disposition as vision of attorney's fees. — Judgment, other property." National Bank v. Na- Waggaman v. Earle (1905), 25 App. D. tional, etc.. County Bank, 225 U. S. 178, C. 582; Earle z'. Waggaman, Id., reversed. 184, 56 L. Ed. 1042, 32 S. Ct. 633. See Earle i: Myers, 207 U. S. 244, 52 L. Ed. post, BANKRUPTCY. Vol. I. ACTIONS. 77-101 ACKNOWLEDGMENTS. II. Necessity for Acknowledgment, 7. A. In General, 7. 1. Of Deed, 7. CROSS REFERENCES. See the title Acknowle:dgme:nts, vol. 1, p. 76, and references there given. In addition, see post, Re^cgrding Acts. II. Necessity for Acknowledgment. A. In General — 1. Of Dee^d. — See note 4. ACQUIESCENCE.— See post, Lachks. ACQUIT. — See post, Autrefois, Acquit and Convict. ACTION OF DECEIT.— See post. Banks and Banking. ACTIONS. I. Definitions, Distinctions and General Consideration, 7. L. Kinds of Actions Generally, 7. III. Statutory Remedies, 8. C. Statute Creating New Right or Offense and Prescribing a Specific Remedy or Punishment, 8. CROSS REFERENCES. See the title Actions, vol. 1, p. 96, and references there given. In addition, see post. Conflict of Laws. As to judgment in criminal action as bar to civil action, see post, Rfs Adju- DICATA. I. Definitions, Distinctions and General Consideration. L. Kinds of Actions Generally. — See note 21. 77-4. Deed. — Acknowledgment by the An action by an individual to recover grantor before a proper officer is made as damages for a personal injury alleged to much a prerequisite to the validity of a have been caused by the negligence of a deed as the signing, by Rev. St. Ariz. corporation, is a strictly civil proceeding. 1901, par. 725, providing that "every deed Chicago, etc., R. Co. v. United States, 220 or conveyance of real estate must be U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612. duly acknowledged by some officer au- See post, DAMAGES, thorized to take acknowledgments, and An action by the United States to re- properly certified to by him for registra- cover from a carrier the penalty pre- tion." Judgment (Ariz. 1906), 85 P. 245, scribed for violations of the safety ap- affirmed. Lewis v. Herrera, 208 U. S. pliance acts of March 2, 1893, April 1. 309, :)2 L. F.d. 506. 28 S. Ct. 412. 1896, and March 2, 1903, is a civil, and 101-21. Civil action. — An action of debt not a criminal, action. Chicago, etc.. R. brought by the United States to recover Co. v. United States. 220 U. S. 559, 55 L. a penalty under the statute of congress Ed. 582, 31 S. Ct. 612. See post. IN- of March 3, 1903. regulating the immigra- TERSTATE AND FOREIGN COM- tion of aliens into this country. 32 Stat. MERGE: PENALTIES AND FOR- 1213, 1214, c. 1012, is in all substantial FEITURES. respects, a civil action as distinguished It is settled law that a certain sum. or from a strictly criminal case or criminal a sum which can readily be reduced to a prosecution. Hepner z\ United States, certainty, prescribed in a statute as a 213 U. S. 103. 104. 53 L. Ed. 720. 29 S. penalty for the violation of law, may be Ct. 474. See, also, post. DEBT. THE AC- recovered by civil action, even if it mav TION OF: PENALTIES AND FOR- also be recovered in a proceeding which FEITURES. is technically criminal. Chicago, etc., R. 107-116 ADJOURXED S ESS I OX. Vol. L III. Statutory Remedies. C. Statute Creating New Right or Offense and Prescribing a Specific Remedy or Punishment. — See note 58. ACT OP GOD. — See post, Carrie:rs; Ships and Shipping. ACTS OF BANKRUPTCY.— See post, Bankruptcy. ACTS OF CONGRESS.— See post, Statutes. ACTUAL CONTROVERSY. — See post. Appeal and Error; Courts. ADDITIONAL COSTS.— See post, Costs. ADDITIONAL PUNISHMENT.— See post, Sentence and Punishment. ADDITIONAL SECURITY ON APPEAL.— See post, Appeae and Error. ADDITIONAL SERVITUDE.— See post, Eminent Domain. ADEQUATE FACILITIES.— See note 3a. ADEQUATE REMEDY AT LAW.— See post, Appeal and Error ; Equity ; Injunctions; Judgments and Decrees; Mandamus; Multiplicity of Suits; Prohibition ; Quieting Title. ADJOINING'^LANDOWNERS.— See the title Adjoining Landowners, vol. 1, p. 117, and references there given. ADJOURNED SESSION.— See Adjourned Session, vol. 1, p. 117. See post, Adjournments; Courts. Co. V. United States, 220 U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612; Hepner v. United States, 213 U. S. 103, 108, 53 L. Ed. 720, 29 S. Ct. 474. 107-58. Statute providing particular or special remedy. — "The rule which ex- cludes other remedies where a statute creates a right and provides a special remedy for its enforcement rests upon the presumed prohibition of all other remedies. If such prohibition is intended to reach the government in the use of known rights and remedies, the language must be clear and specific to that effect." United States v. Stevenson, 215 U. S. 190, 200, 54 L. Ed. 153, 30 S. Ct. 35. Congress, by providing in the immigra- tion act of February 20, 1907 (34 Stat, at L. 898, chap. 1134, U. S. Comp. Stat. Supp. 1907, p. 389), § 5, a civil action for the recovery of a penalty in case of a violation of § 4 of that act, making it a misdemeanor to assist or encourage the importation of alien contract laborers, did not preclude a prosecution by indict- ment to enforce such penalty. United States V. Stevenson, 215 U. S. 190, 54 L. Ed. 153. 30 S. Ct. 35. See post, PEN- ALTIES AND FORFEITURES. 116-3a. The term "adequate or reason- able facilities," in relation to the opera- tion of trains, is not in its nature capable of the exact definition. It is a relative expression and is to be considered as calling for such facilities as might be fairly demanded, regard being had, among other things, to the size of the place, the extent of the demand for trans- portation, the cost of furnishing the ad- ditional accommodations asked for, and to all other facts which would have a bearing upon the question of convenience and cost. Atlantic, etc., R. Co. v. Whar- ton, 207 U. S. 328, 52 L. Ed. 230, 28 S. Ct. 121. See post. INTERSTATE AND FOREIGN COMMERCE. Vol. I. ADMIXISTRATRIX. 118 ADJOURNMENTS. CROSS REFERENCES. See the title Adjournments, vol. 1. p. 118. and references there given. Adjournment of Circuit Court by Written Order of Circuit Judge. — By § 672 of the United States Revised Statutes, it is provided that if neither of the judges of the circuit court be present to open and adjourn any regular or ad- journed special session, either of them may, by a written order, directed al- ternatively to the marshal, and in his absence, to the clerk, adjourn the court from time to time as the case may require, to any time before the next regular term.-^ ADJUDICATION. — See post. Courts. As to former adjudication, see post. Res Adjudicata. ADMINISTRATION.— See post. Bankruptcy: Wills. As to administra- tion of decedents' estates, see post, Executors -and Administrators. As to administration of trust estates, see post, Trusts and Trustees. ADMINISTRATIVE.— See note 3a. ADMINISTRATORS.— See post, Executors and Administrators. ADMINISTRATRIX. — See post. Admiralty; Executors and Adminis- trators ; Parties. 118-2a. Adjournment of circuit court by written order of either judge. — Harlan f. :McGourin, 218 U. S. 442. 54 L. Ed. 1101, 31 S. Ct. 44. See, also, post. COURTS. 118-3a. Administrative provisions in War Revenue Act. — The War Revenue Act of June 13, 1898, itself provides that payment may be enforced by acti('.4, 54 L. vessel undergoing repairs in a dry dock Ed. 1039, 31 S. Ct. 17; Erie R. Co. v. from which all the water had been Western Transp. Co., 204 U. S. 220, 51 L. emptied. Decree, The Jefferson (D. C. Ed. 450. See the title ADMIRALTY, vol. 1908), 158 F. 358, reversed. The Steam- 1, p. 142. 10 Vol. I. ADMIRALTY. 144-145 favor of the charterer of the other vessel at fault, who has paid a judgment recovered against him in a suit at common law, founded upon the wrong, to which the other wrongdoer was not made a party.^^^ (e) Injuries on Land Caused by Ships or Vessels. — Whether a tort be mari- time or nonmaritime must be determined by the character and locality of the injured thing at the time the tort was committed, and subsequent facts as to^ location furnish no criterion.-^ The true meaning of the rule of locality in cases of maritime torts is that the wrong must be committed wholly on navi- gable waters, or, at least, the substance and consummation of the same must take place upon waters within the admiralty jurisdiction. A substantial cause of action arising out of the wrong must be complete within the locality on which the jurisdiction depended. ^"^ Where a vessel by its own fault collides with and injures a structure which is essentially a land structure and which is maintained and used as an aid to commerce or other business on land, the tort is nonmaritime.-*^ 144-98b. The Ira M. Hedges, 218 U. S. 264, 54 L. Ed. 1039, 31 S. Ct. 17, revers- ing Decree The Ira M. Hedges (D. C.) 163 Fed. .587. See, also, post, COL- LISION. 145-2a. Injuries on land caused by ves- sel. — Johnson v. Chicago, etc., Elevator Co., 119 U. S. 388, 30 L. Ed. 447, 7 S. Ct. 254; Martin v. West, 223 U. S. 191, 56 L. Ed. 159, 32 S. Ct. 42. A collision between a vessel and a sup- porting pier of a bridge over a navigable waterway of the United States, caused by the negligent management of the ves- sel, and resulting in the collapse of a span of the bridge, and its fall into the stream, is a nonmaritime tort, and a cause of action arising thereon is there- fore not within the exclusive admiralty jurisdiction of the federal courts, but the owner of the bridge may pursue the remedy afforded by a state statute, even though that law gives a lien on the ves- sel. Martin v. West, 222 U. S. 191, 56 L. Ed. 159, 32 S. Ct. 42, affirming judg- ment. West V. Martin, 97 P. 1102, 51 Wash, 85, 21 L. R. A. (N. S.) 324. It may be that the damage ensuing from the collision was aggravated by the fact that the span fell into the stream and was subjected to the force of the cur- rent and submerged in the water, but, if that be so, it furnishes no criterion for determining whether the tort was mari- time or nonmaritime, because that ques- tion must be resolved according to the locality and character of the injured thing — the bridge with its spans and sup- porting piers — at the time of the col- lision. It was then that the causal in- fluence of the negligent management of the vessel took effect injuriously and gave rise to a cause of action, and what followed is important only as bearing upon the extent of the injury and result- ing liability. Martin v. West, 222 U. S. 191, 197, 5fi L. Ed. 159, 32 S. Ct. 42. 145-2b. Rule construed and explained. — Ex parte Phenix Ins. Co., 118 U. S. filO, 30 L. Ed. 274, 7 S. Ct. 25; Cleveland, etc., R. Co. V. Cleveland Steamship Co., 208 U. S. 316, 319, 52 L. Ed. 508, 28 S. Ct. 414, citing The Plymouth, 3 Wall. 20, 18 L. Ed. 125. "The rule stated has been accepted generally by bench and bar, and has never been overruled, though counsel ex- press the hope that it may be because of our decision in The Blackheath, 195 U. S. 361, 49 L. Ed. 236. In that case Mr. justice Brown, in concurring, announced the view that the effect of the decision was to overrule what had previously been laid down in the cases we have cited. But the court held that the opinion was not opposed to the prior adjudications, and, without entering into the elements of distinction between that case and The Plymouth, 3 Wall. 20, 37, 18 L. Ed. 125, said: 'It is enough to say that we are now dealing with an injury to a government aid to navigation from ancient times subject to the admiralty, a beacon emerging from the water, injured by the motion of the vessel, by a con- tinuous act beginning and consummated upon navigable water, and giving char- acter to the effects upon a point which is only technically land, through a connec- tion at the bottom of the sea.' " Cleve- land, etc., R. Co. z'. Cleveland Steamship Co., 208 U. S. 316, 321, 52 L. Ed. 508, 28 S. Ct. 414. 145-2C. Land structure. — Martin v. West, 222 U. S. 191, 56 L. Ed. 159, 32 S. Ct. 42; The Blackheath, 195 U. S. 361, 49 L. Ed. 236; Cleveland, etc.. R. Co. v. Cleveland Steamship Co.. 208 U. S. 316, 52 L. Ed. 508, 28 S. Ct. 414; The Troy. 208 U. S. 321, 52 L. Ed. 512, 28 S. Ct. 416; Johnson ■:'. Chicago, etc.. Ele- vator Co., 119 U. S. 388, 30 L. Ed. 447, 7 S. Ct. 254; Knapp, etc., Co. v. Mc- Caffrey, 177 U. S. 638, 44 L. Ed. 921; The Winnebago, 205 U. S. 354. 51 L. Ed. 836: Martin v. West, 222 U. S. 191, 197, 56 L. Ed. 159, 32 S. Ct. 42; The Plymouth, 3 Wall. 20. 18 L. Ed. 125; The Troy, 208 1 1 156 ADMIRALTY. Vol. I. II. Maritime Law. The power of congress to legislate upon the subject of maritime law has been derived both from the power to regulate commerce and from the clause in the constitution extending the judicial power to "all cases of admiralty and maritime jurisdiction/'^s^ In the absence of congressional legislation, a state mav legislate in regard to the duties and liabilities of its citizens and corpora- tions while on the high seas and not within the territory of any other sov- creign.ss" Accordingly, it has been held that a statute giving damages for U. S. 321, 52 L. Ed. 512. 28 S. Ct. 416; Richardson z: Harmon, 222 U. S. 96, 101, 56 L. Ed. 110, 32 S. Ct. 27. See, also, post, COLLISION. "Prior to the 18th section of the act oi June 26, 1884, 23 Stat, at L., pp. 53, 57, (chap. 121 U. S. Comp. Stat. 1901, pp. 2804, 2945), it had been the settled law that the district court, sitting as a court of admiralt^^ had no jurisdiction to try an action for damages against a ship- owner, arising from a fire on land, com- municated by the ship, or from a col- lision between the ship and a structure on land, such as a bridge or pier. The tort in both cases would have been a non- maritime tort, and, as such, not within the cognizance of an admiralty court. The Plymouth. 3 Wall. 20, 18 L. Ed. 125; The Troy, 208 U. S. 321, 52 L. Ed. 512. 28 S. Ct. 416." Richardson v. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. Abutment to bridge. — A court of ad- miralty has no jurisdiction of a libel in rem against a vessel, based on injuries inflicted to the piers or abutments of a railroad bridge spanning a navigable stream, to the piling placed around the center abutment in order to protect ves- sels from injury, and to a shore dock or wharf. Cleveland, etc.. R. Co. v. Cleve- land Steamship Co.. 208 U. S. 316. 52 L- Ed. 508. 28 S. Ct. 414. Drawbridge. — Redress can not be af- forded in admiralty for injuries inflicted by a colliding A-essel upon the drav.f^ of a bridge over a navigable stream, and to its center pier protection. The Troy. 208 U. S. 321. 52 L. Ed. 512, 28 S. Ct. 416. Surface borings. — A collision in a navigable river between vessels and the surface part of borings made to lo- cate an aqueduct under the bed of the river for municipal purposes is not in any sense maritime, and a suit to recover dam- ages for injury to such borings is not within the admiralty jurisdiction. De- cree, The Poughkeepsie CD. C). 162 F. 494; The Homer Ramsdell. Id., affirmed. Phoenix Const. Co. v. Steamer Pough- keensie. 212 U. S. 558. 53 L. Ed. 651. " Warehouse. — This is well illustrated in Johnson z'. Chicago. etc., Eleva- tor Co., 119 U. S. 388, 30 L. Ed. 447. 7 S. Ct. 254. There, the jib bootn of a schooner, in the Chicago River, was neg- ligently driven through the wall of a ware- house on adjacent land, whereby a large quantity of shelled corn, stored in the warehouse, ran out into the river and was lost. It was held that the substance and consummation of the wrong took place on land and that the tort was nonmari- time, although the damage inflicted con- sisted chiefly of the loss of the corn. Other applications of the same principle are shown in The Strabo, 90 Fed. Rep. 110, and The Haxby, 95 Fed. Rep. 170. Sec Martin v. West, 222 U. S. 191, 197, 56 L. Ed. 159, 32 S. Ct. 42; Cleveland, etc., R. Co. f. Cleveland Steamship Co.. 208 U. S 316, 319, 52 L. Ed. 508, 28 S. Ct. 414. 156-58a. The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133, citing Butler v. Boston, etc.. Steamship Co., 130 U. S. 527, 558, 32 L. Ed. 1017, 9 S. Ct. 612. 156-58b. Power of state to legislate. — The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133. And as the state courts in their de- cisions would follow their own notions about the law and might change them from time to time, it would be strange if the state might not make changes by its other mouthpiece, the legislature. The same argument that deduces the legisla- tive power of congress from the juris- diction of the national courts, tends to establish the legislative power of the state where congress has not acted. The Hamilton, 207 U. S. 398, 404, 52 L. Ed. 264, 28 S. Ct. 133. So far as the objection to the state law is founded on the admiralty clause in the constitution, it would seem not to mat- ter whether the accident happened near shore or in mid-ogean. notwithstanding^ some expressions of doubt. The same conclusion was reached in McDonald z'. Mallory. 77 N. Y. 546, where the death occurred on the high seas. Sherlock v. Ailing, 93 U. S. 99, 23 L. Ed. 819, rein- forces Chase's case, and answers any argument based on the power of con- gress over commerce, as to which we hardly need refer also to Coolcy tj. Board of Wardens, 12 How. 299, 13 L. Ed. 096; Ex parte McNeil, 13 Wall. 236, 20 L. Ed. 624; Wilson z: McNamee. 102 U. S. 572. 26 L. Ed. 234, and Homer RamsdelT Transp. Co. ta La Compagnie Generale Transatlantique, 182 U. S. 406, 45 L. Ed. 1155. concerning state pilotage laws. The Hamilton, 207 ""U. S. 398, 404. 52 L. Ed- 264. 28 S. Ct. 133. 12 Vol. I. ADMIRALTY 156-163 death caused by a tort might be enforced in a state court, although the tort was committed at sea.^^*^ III. Procedure. E. Appearance, -Process and Attachment — 3. Attachment — h. Irreg- ular Writ as Protecting Ojficer. — Although a writ in the usual form of a monition and warrant of arrest in a suit in rem, the court having power to issue it in a proper case, may have been irregularly issued, a marshal is' au- thorized and bound to act thereunder if it comes into his hands as an appar- ently valid writ.'^^ If process in rem is apparently valid and it does not appear 156-58C. Statute giving damages for death by wrongful act. — The Hamilton, 307 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133, citing American Steamboat Co. :•. Chase, 16 Wall. 522, 21 L. Ed. 369. Applying to a claim for a death on the high seas, due to a tortious collision of two vessels belonging to Delaware cor- porations, the provision of Del. act of January 26, 1886, as amended by the act of ^larch 9, 1901, authorizing per- sonal representatives to maintain an ac- tion and recover damages for a death occasioned bj^ unlawful violence or neg- ligence, does not render such provision repugnant to either the commerce or admiralty clauses of the federal constitu- tion, where congress has not legislated upon the subject. The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133. A state law, being valid, will be ap- plied in the admiralty. Being valid, it creates an obligate, a personal liability. This, of course, the admiralty will not disregard, but will respect the right when brought before it in any legitimate \\'3.y. Ex parte McNiel. 13 Wall. 2"36, 243. 20 L. Ed. 624: The Hamilton, 207 U. S. 398. 405. 52 L. Ed. 264, 28 S. Ct. 133. 163-6a. Irregular writ as protecting of- ficer. — Bryan v. Ker, 222 U. S. 107, 56 L. Ed. 114, 32 S. Ct. 26. See, also, post, SUMMONS AXD PROCESS. A writ in the usual form of a monition and warrant of arrest in a suit in rem, issued from the office of the clerk of a federal district court, and bearing the seal of that court, will protect the mar- shal in seizing and detaining a vessel in conformity to the command of the wit, although the purported signature of the deputy clerk was affixed under an at- tempted but ineffectual delegation of au- thority, and although the case stated in the libel upon which the writ issued was not cognizable as a suit in rem in :id- miralty, but only as a personal action for damages. Bryan 7". Ker, 222 U. S. 107. 56 L. Ed. 114, 32 S. Ct. 26. reversing judgment, 163 F. 233. 90 C. C. A. 179. Although the attempted delegation of authority may have been ineffectual to clothe the person signing a writ with power to do so, the marshal is protected in executing it, if it is in the usual form and bears the seal of the court; such an irregularity can be cured by amendment substituting the signature of the person properly authorized. Bryan v. Ker, 222 L'. S. 107, 56 L. Ed. 114, 32 S. Ct. 26. "In short, although thus irregularly is- sued, it came into the hands of the mar- shal as an apparently valid writ. Be- sides, this irregularity did not render the writ void, but voidable merely, for it could have been amended by substituting the true for the purported signature of the deputy. Rev. Stat., § 948; Texas, etc., R. Co. V. Kirk, 111 U. S. 486, 28 L. Ed. 481; Miller v. Texas, 153 U. S. 535, 38 L. Ed. 812; Semmes v. United States, 91 U. S. 21, 23 L. Ed. 193; Cotter v. Ala- bama G. S. Railroad Co., 61 Fed. Rep. 747; Long v. Farmers' State Bank, 147 Fed. Rep. 360; Ambler v. Leach, 15 W. Va. 677." Bryan v. Ker, 222 U. S. 107, 56 L. Ed. 114, 32 S. Ct. 26. The process that shall protect an of- ficer niust, to use the customary legal ex- pression, be fair on its face. See Conner T. Long, 104 U. S. 228, 237. 26 L. Ed. 723; Matthews v. Densmore, 109 U. S. 216. 27 L. Ed. 912; Harding v. Wood- cock, 137 U. S. 43. 34 L. Ed. 580; Stuts- man County V. Wallace, 142 U. S. 293, 309, 35 L. Ed. 1018; Marks v. Shoup, 181 U. S. 562, 45 L. Ed. 1002; Erskine v. Hohnbach. 14 Wall. 613. 20 L. Ed. 745; Haffin V. Mason, 15 Wall. 67], 21 L. Ed. 196; Bragg v. Thomson. 19 So. Car. 572; Goodgion v. Gilreath, 32 So. Car. 388; Clarke v. May. 2 Gray (Mass.). 410; People t'. Rix. 6 Michigan, 144; Henline V. Reese. 54 Oh. St. 599; Savacool v. Boughton. 5 Wend. (N. Y.) 170. Brvan r. Ker, 222 U. S. 107, 113. 56 L. Ed. 114. 32 S. Ct. 26. See, generally, the title SUMMONS AND PROCESS. Liable of collection of port for detention of vessel. — While a vessel was in the custody of a marshal, the defendant, as collector of the port, acting under direc- tions from the secretary of the treasury, placed an inspector on board the vessel and thereby assumed a qualified control over her. The custody of the marshal was not disturbed or questioned, or in- tended to be, the defendant's purpose be- ing only to make sure that the vessel would be detained, according to the di- 13 163-194 ADULTERATION. Vol. I. on the face thereof that the Hbel on which it is issued discloses only a personal action for damages, the marshal is protected in executing it.*"' H. Intervention and Claim— 1. Intervention.— Intervention to Claim Proceeds of Sale.— See post, "Disposition of Proceeds of Sale," III, P. P. Disposition of Proceeds of Sale— 1. Right to Share in Proceeds oe SAI.E.— \\'here the statutes of the United States have enabled the shipowner to transfer liability to a fund and to the exclusive jurisdiction of the admiralty, ixW claims to which the admiralty does not deny existence must be recognized, vhether admiralty liens or not.°''^ R. Reviev/ — 2. Jurisdiction — a. Courts — (4) Supreme Court. — It is settled that, under the act of 1891, in order to entitle to a direct appeal from the de- cree' of a district or circuit court dismissing a cause for want of jurisdiction, the decree which is sought to be reviewed must have involved the jurisdiction of the court below as a federal court.^s^ So where the decree of the lower court is founded on denial of jurisdiction of the admiralty court, the supreme court has jurisdiction of the appeal. ^^'' c. Appealable Decisions. — See cross reference, vol. 1, p. 185. 9. Trial and Hearing — c. Effect Where Evidence Is Conflicting — (2) Ef- fect of Concurring Decisions of District and Circuit Courts on Question of fact. — See note 28. ADMISSIONS. — See post. Declarations and .\dmissions ; Demurrer to THE Evidence; Legal Conclusions. As to admissions by demurrer, see post. Demurrers. As to admissions in pleading by failure to deny or traverse, see post. Pleading. ADMISSIONS IN EVIDENCE.— See post, Declarations and Admissions. ADMISSIONS IN PLEADING.— See post, Demurrers; Pleading. ADULTERATION.— See note a. rections of the secretary of the treasury, in the event that the custody of the mar- shal should be terminated. The secretary of the treasury abandoned the purpose to detain the vessel, and the defendant there- upon withdrew the inspector, the mar- shal still retaining his custody. Held, that the collector could not be held respon- sible for the destruction of the vessel. Bryan v. Ker, 222 U. S. 107, 111, 56 L. Ed. 114, 32 S. Ct. 26. 163-6b. Process in rem apparently valid.— Bryan v. Ker. 222 U. S. 107. 56 L. Ed. 114, 32 S. Ct. 26. 180-57a. Right to share in proceeds.— The Hamilton, 207 U. S. 398, 52 L. Ed. 264. 28 S. Ct. 133. See, also, post, SHIPS AND SHIPPING. This is not only a general principle, Andrews v. Wall, 3 How. 567. 573. 11 L- Ed. 729. The J. E. Rumbell, 148 U. S. 1. 15, 37 L. Ed. 345; Admiralty Rule, 43; Cargo Ex Galam. 2 Moore P. C. (N. S.) 216_. 236, but is the result of the statute, Avhich provides for, as well as limits the liability, and allows it to be proved against the fund. The Albert Dumois, 177 U. S. 240. 260. 44 L. Ed. 751. See Workman v. New York. 179 U. S. 552, 563, 45 L. Ed. 314; The Hamilton. 207 U S. 398, 406, 52 L. Ed. 264, 28 S. Ct. 133. 184-88a. Review — Jurisdiction of su- preme court. — Louisville Trust Co. v. Comingor, 184 U. S. 18, 46 L. Ed. 413; Schweer v. Brown, 195 U. S. 171, 49 L. Ed. 144, citing in The Steamship Jeffer- son. 215 U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54. See, also, post, APPEAL AND ERROR. 184-88b. Decree founded on denial of jurisdiction. — The Ira M. Hedges, 218 U. S. 264, 54 L. Ed. 1039, 31 S. Ct. 17. 192-28. Concurring decisions. — Con- current findings of both the courts below as tC' the density of a fog and the rate of the speed of a steamship at the time of collision will not be disturbed by the fed- eral supreme court on appeal, unless such findings are so unwarranted by the evi- dence as clearly to be erroneous. Judg- ment, La Bourgogne, 144 F. 781, 75 C, C. A. 647. affirmed. La Bourgogne, 210 U. S. 95, 32 L. Ed. 973, 28 S. Ct. 664. 194-a. Adulteration or misbranding. — "As is well known, products may be sold, and, in the case of so-called propriety articles, frequently are sold, under trade names which do not reveal the ingredients of the composition and the proprietors refrain from revealing them. ^Moreover, in defining what shall be adulteration or misbranding for the purpose of the fed- 14 Vol. I. AD] ^ ERSE POSSESSION. 195-198 ADULTERY, FORNICATION AND LEWDNESS. I. Definitions, 15. III. Unlawful Cohabitation, 15. B. AMiat Constitutes Cohabitation. 15. V. Prosecution and Punishment, 15. D. Punishment, 15. 3. For Keeping House of Prostitution. 15. CROSS REFERENCES. See the title Adultery, Fornication and Lewdness, vol. 1, p. 195, and ref- erences there given. In addition, see post, White Slave Traffic. I. Definitions. Concubinage has been defined to be a living in a state of illicit sexual inter- course, not under the sanction of a valid or legal marriage.-'' III. Unlawful Cohabitation. B. What Constitutes Cohabitation. — Living in State of Concubinage. — It has been held that a person living in a state of concubinage is leading an immoral life.^^ V. Prosecution and Punishment. D. Punishment — 3. For Keeping House of Prostitutiox. — It has been said that congress is without jurisdiction to pass laws prescribing punishment for keeping a house of prostitution within the boundary of a state.^^^ ADVANCEMENTS.— See the title Advancements, vol. 1. p. 198, and ref- erences there given. ADVERSE INTEREST.— See Adverse Interest, vol. 1, p. 199. See post, Parties. ADVERSE POSSESSION.— See post, Limitation of Actions and Ad- verse Possession. eral act (Food and Drugs Act of June lations which may rightfully, from the 30, 1906), it is provided that mixtures or standpoint of morahty, exist between compounds known as articles of food un- man and woman in the matter of sexual der their own distinctive names, not tak- intercourse." United States v. Bitty, 208 ing or imitating the distinctive name of U. S. 393, 402, 52 L. Ed. 543, 28 S. Ct. another article, which do not contain 396. 'any added poisonous or deleterious in- 198-16a. Punishment for keeping house gredients,' shall not be deemed to be of prostitution. — Keller v. United States, adulterated or misbranded if the name be 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. accompanied on the same label or brand "While the keeping of a house of ill- with a statement of the place of manu- fame is offensive to the moral sense yet facture. C§ SV' Savage -v. Jones, 225 U. that fact must not close the eye to the S. 501, 532, 56 L. Ed. 1182. 32 S. Ct. 715. question whether the power to punish See post, FOOD AND DRUGS. therefor is delegated to congress or is 195-2a. United States v. Bitty, 208 U. reserved to the state. Jurisdiction over S. 393. 52 L. Ed. 543, 28 S. Ct. 396. such an oflfense comes within the ac- 197-8a. Status of party living in con- cepted definition of the police power. cubinage. — "The prostitute may. in the Speaking generally, that power is re- popular sense, be more degraded in char- served to the states, for there is, in the acter than the concubine, but the latter constitution, no grant thereof to con- none the less must be held to lead an gress." Keller v. United States, 213 U. immoral life, if any regard whatever be S. 138, 144, 53 L. Ed. 737, 29 S. Ct. 470. had to the views that are almost univer- See, also, post, POLICE POWER. sally held in this country as to the re- 15 202-203 AGISTMENT. \'o\. I. AFFIDAVITS. VII. Use in Evidence, 16. A. Admissibility, 16. CROSS REFERENCES. See the title Affidavits, vol. 1, p. 200, and references there given. In addition, see post, AppFal and Error; Courts. VII. Use in Evidence. A. Admissibility. — Ex Parte Affidavits. — Counsel may agree that the ef- fect of a deposition shall be given to an ex parte affidavit and thereby bind the court to admit it in evidence, unless, perhaps, as against the United States. Such depositions forming exhibits in departmental reports printed as congres- sional documents were not made evidence in a suit in the court of claims brought under the act of March 1, 1907 (34 Stat, at L. 1055, 2290) by the provisions of that act that such reports shall be evidence, to be given such weight as the court may determine for them.^'^ AFFIRMANCE.— See post. Appeal and Error. AFFREIGHTMENT.— See post, Carriers; Ships and Shipping. AFTER.— See note 2. AGAINST THE STATE.— As to suits against the state, see post, Courts; States. AGENCY. — See post. Principal and Agent ; Public Lands. AGGREGATION. — See post, Patents. As to aggregation of claims to pro- A'ide jurisdictional amount, see post. Appeal and Error; Courts. AGGRIEVED PARTY.— See post. Appeal and Error. AGISTMENT.— See post, Animals. 202-3a. Ex parte affidavit. — Sac & Fox Indians v. Sac & Fox Indians, 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. See post. COURTS. 203-2. "After that" synonymous with "thereafter." — A charter granted to a raih-oad companj^ by the state of Geor- gia provided: "The stock of the said company and its branches shall be ex- empt from taxation for and during the term of seven years from and after the completion of the said railroads, or anj^ of them;" and after that shall be subject to a tax not exceeding one-half of one per cent, per annum, on the net proceeds of their investments. The words "after that," which immediately follow the ex- emption clause, was construed as synony- mous with "thereafter," and as fixing the time when that property which was theretofore exempt should be subject to the sj'^stem of taxation provided by the succeeding clause. The thirty-six year limitation is one obviously applicable only to the grant of an exclusive right, within a defined territory, to construct and operate railroads. This was intended to protect this pioneer railroad from be- ing paralleled within that time. Wright z\ Georgia R., etc.. Co., 216 U. S. 420, 422, 54 L. Kd. 544, 30 S. Ct. 242. See post, TAXATION. 16 A''ol. I. ALCOHOLIC LIOUORS. 207-209 AGREED CASE. VII. Submission of Controversy, 17. A. Definition and What Constitutes, 17. CROSS REFERENCES. See the title Agreed Case, vol. 1, p. 204, and references there given. VII. Submission of Controversy. A. Definition and What Constitutes. — See note 15. t AGREEMENT. — As to agreement for admission of affidavits, see ante, As- EiDAviTs, p. 16. See, also, post, Contracts; Monopolies and Corporate Trusts. AID. — See note 1. ALCOHOLIC LIQUORS.— See post. Interstate and Foreign Commerce; Intoxicating Liquors. 207-15. Requesting court to instruct verdict. — "It was settled in Beuttell v. Magone, 157 U. S. 154, 39 L. Ed. 654, that where both parties request a per- emptory instruction and do nothing more, they thereby assume the facts to be un- disputed and in effect submit to the trial judge the determination of the inferences proper to be drawn from them." Empire State Cattle Co. v. Atchison, etc., R. Co., 210 U. S. 1, 8, 52 L. Ed. 931, 28 S. Ct. 607. "But nothing in that ruling sustains the view that a party may not request a peremptory instruction, and j'et, upon the refusal of the court to give it, insist, by appropriate requests, upon the submis- sion of the case to the jury, where the evidence is conflicting or the inferences to be drawn from the testimonj' are di- vergent.'' Empire State Cattle Co. v. Atchison, etc., R. Co.. 210 U. S. 1, S, 52 L. Ed. 931, 28 S. Ct. 607. See, also, post, INSTRUCTIONS; VERDICT. "The distinction between a case like the one before us and that which was under consideration in Beuttell i\ Mangone. 157 U. S. 154, 39 L. Ed. 654, has been pointed out in several recent decisions of cir- cuit courts of appeals. It was accu- 12 U S Enc— 2 17 rately noted in an opinion deliv- ered by Circuit Judge Severens, speak- ing for the circuit court of appeals for the sixth circuit, in Minahan v. Grand Trunk Ry. Co., 138 Fed. Rep. 37, 41, and was also lucidly stated in the concurring opinion of Shelby, circuit judge, iii Mc- Cormack v. National City Bank of Waco, 142 Fed. Rep. 132, where, referring to Beuttell V. Magone." Empire State Cat- tle Co. V. Atchison, etc., R. Co., 210 U. S. 1. 8, 52 L. Ed. 931, 28 S. Ct. C07. 209-1. Flag lieutenant on personal staff of rear-admiral. — Where a lieutenant in the navj- served as flag lieutenant on the personal staff of a rear-admiral, he is to all intents and purposes an aid to the rear-admiral, though not technically designated as such; and is entitled to the extra pay due such officer. United States r. Miller. 208 U. S. 32, 52 L. Ed. 376, 28 S. Ct. 199. See post, ARMY AND NAVY. A to municipal aid, see post, MU- NICIPAL. COUNTY. STATE AND FEDERAL AID. As to land grants in aid of railroads, see post. PUBLIC LANDS. ALIENS. Vol. I. ALIENS. I. Definition and Status, 18. II. What Determines Relation, 19. A. Birth, Domicile or Marriage, 19. 3. Marriage, 19. B. Annexation, 19. C. Conquest, 19. III. Duties, Rights and Powers, 19. • C^. Admission to Practice Law, 19. D. Suing and Being Sued, 19. y2. In General, 19. 2. Suits between Aliens and Citizens, 19. a. In General, 19. 3. Personalty, 19. a. Rights under Copyright Law, 19. 6. Treaty Rights, 19. e. Treaty with Prussia, 19. f. Treaty with Italy, 19. IV. Pleading and Practice, 20. A. Declaration or Bill, 20. 1. Averments as to Alienage or Citizenship, 20. V. Admission or Exclusion of Aliens or Immigrants, 20. A. Power of Congress and States, 20. 1. In General, 20. 8. Importation of Prostitutes, 20. B. Classes Excluded, 20. 1. Paupers, Criminals and Diseased Persons, 20. 5. Prostitutes, 20. C. Procedure, 21. 1. Delegation to Inspector and Other Officers, or a Department, 21. c. Finality of Decisions and Court Review, 21. 3. Detention and Expulsion or Deportation, 21. a. Delegation to Executive Officials, 21. (1) Power ard Finality of Decisions, 21. (2) Departmental Regulations, 21. 5. Due Process of Law, 21. D. Liability of Person Bringing in Immigrants Not Permitted to Land, 22. 1. Liability for Failure to Adopt Precautions to Prevent Landing, 22. 2. Penalty for Bringing in Diseased Aliens, 23. 3. Importation, Keeping or Harboring Alien Women for Purpose of Prostitution or Concubinage, 23. 4. Charge for Return Passage, 24. CROSS REFERENCES. See the title Ai^iEns, vol. 1, p. 210, and references there given. In addition, see post. Executors and Administrators; International I,AW. I. Definition and Status. An alien has been defined to be "one born out of the jurisdiction of the 18 Vol. I. ALIENS. 212-239 United States, and who has not been naturahzed under their constitution and laws."^^ II. What Determines Relation. A. Birth, Domicile or Marriage — 3. jNIarriage;. — See post, Citizenship. B. Annexation. — See post. International Law. C. Conquest. — See post, International Law. III. Duties, Rights and Powers. C^. Admission to Practice Law. — An alien may be denied admission to practice law on the ground that he does not possess the political cjualifications required by law.^"^^ D. Suing and Being Sued-*-J<. In General. — Alien citizens, by the poHcy find practice of the courts of this country, are ordinarily permitted to resort to the courts for the redress of wrongs and protection of their rights.-"'' 2. Suits between Aliens and Citizens — a. In General. — What property may be removed from a state and subjected to the claims of alien creditors is a matter of comity and not a matter of absolute right in favor of creditors of other sovereignty, when citizens of a local state or country are asserting rights against property within the local jurisdiction.^^a 3. Personalty. — a. Rights under Copyright Laiv. — See post, Copyright. 6. Treaty Rights — e. Treaty with Prussia. — Rights of Creditors Citizens of Prussia. — The right of citizens of Prussia under the treaty of May 1st, 1828 (8 Stat, at L. 378), art. 1, to attend to their affairs in the United States, and for that purpose to enjoy the same security and protection as natives in the country wherein they reside, is not violated by the refusal of a state court, on grounds of public policy, to apply the doctrine of comity so as to subject by ^i.ttachment, to the payment of an indebtedness due a German corporation from a German subject, a fund within the state to which one of its own citizens as- serts a claim, where the efifect of judgment in favor of the corporation would be to remove the fund to a foreign country, there to be administered in favor of the foreign creditors. ^^^ f. Treaty ivith Italy. — Death by Wrongful Act. — Stipulations securing equal- ity with the natives to the citizens of each of the contracting parties in respect of protection and security of person and property, contained in treaty Nov. 18, 212-la. Definition. — Low Wah Suey v. ratior. is not deprived of its property Backus, 22o U. S. 460, 56 L. Ed. 1165, 33 without due process of law, contrary to S. Ct. 734. United States Constitution, Fourteenth 220-27a. Admission to practice law. — Amendment, bj' the refusal of a state Bosque v. United States, 209 U. S. 91, 52 court, on grounds of public policy, to L. Ed. 698, 28 S. Ct. 501. See post, AT- apply the doctrine of comity so as to sub- TORNEY AND CLIENT; CITIZEN- ject by attachment, to the payment of an SHIP; PUBLIC OFFICERS. mdebtedness due the corporation from a 220-27b. Right of aliens to sue. — German subject, a fund within the state Disconto Gesellschaft v. Umbreit, 208 U. to which one of its own citizens asserts S. 570, 52 L Ed. 625, 28 S. Ct. 337. a claim, where the effect of judgment in At common law an alien enemy can not favor of the corporation would be to re- maintain a suit in his own name, but the move the fund to aforeign country, there court would have jurisdiction to enquire to be administered in favor of the foreign whether such disability in fact existed creditors. Disconto Gesellschaft v. Um- and the case would not be dismissed on breit. 208 U. S. 570, 52 L Ed. 625, 28 S. motion for want of jurisdiction. Venner Ct. 337. See post, DUE PROCESS OF V. Great Northern R. Co., 209 U. S. 24, 52 LAW. L. Ed. 666, 28 S. Ct. 328. 239-89a. Rights of creditors citizens of 221-32a. Disconto Gesellschaft v. Um- Prussia.— Disconto Gesellschaft v. Um- breit, 208 U. S. 570, 52 L Ed. 625. 28 S. breit, 208 U. S. 570, 52 L Ed. 625, 28 S- Ct. 337. Ct. 337. Due process of law. — A German corpo- 19 239-250 ALIENS. Vol. I. 1871, 17 Stat. 845, between the United States and Italy, do not require a state to give nonresident alien relatives of an Italian subject a right of action for damages for his death, although such action is afiforded to native resident rela- tives and though the existence of such, an action may indirectly promote his safety. 89b IV. Pleading and Practice. A. Declaration or Bill — 1. Averments as to Alienage or Citizenship. — A declaration averring that plaintiffs are aliens and the defendant a citizen of Alaryland is a sufficient averment of alienage and citizenship to give juris- diction.^^'' V. Admission or Exclusion of Aliens or Immigrants. A. Power of Congress and States — 1. In GENERAE.^Congress has the power to exclude aliens from the United States ; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to com- mit the enforcement of such conditions and regulations to executive officers. ^•^•'' 8. Importation of Prostitutes. — See post, "Importation, Keeping or Har-. boring Alien Women for Prostitution or Concubinage," Vl, D, 3. B. Classes Excluded — 1. Paupers, Criminals and Diseased Persons. — See note '26. 5. Prostitutes. — Congress can forbid the entry and order the subsequent deportation of professional prostitutes. -^^ Wife of Citizen.— A foreign-born Chinese woman, though married to a Chinaman of American birth, is an alien, within the meaning of the provisions of the act of February 20, 1907, as amended by the act of March 26, 1910, for the deportation of any alien found as an inmate of a house of prostitution within three years subsequent to her entry into the United States. -'^^ 239-89b. Treaty with Italy. — Maiorano V. Baltimore, etc., R. Co., 213 U. S. 268, 53 L. Ed. 792, 29 S. Ct. 424, affirming 65 Atl. 1077, 216 Pa. 402, 116 Am. St. Rep. 778. 241-94a. Allegation of alienage. — Wa- ters T'. Barrill, j31 U. S., appx., Ixxxiv, 18 L. Ed. 878. 245-13a. Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470, cit- ing Turner v. Williams, 194 U. S. 279, 289, 48 L. Ed. 979, 983, 24 S. Ct. 719. See, also, Fong Yue Ting v. United States, 149 U. S. G98, 708, 37 L. Ed. 905, 911, 13 S. Ct. 1016; Head Money Cases, 112 U. S. 580, 591, 28 'L. Ed. 798, 5 S. Ct. 247; Lees V. United States, 150 U. S. 476, 480, 37 L. Ed. 1150, 14 S. Ct. 163; United States V. Bitty, 208 U. S. 393, 52 L. Ed. 543, 28 S. Ct. 396. "That Congress may pass laws forbid- ding aliens or classes of aliens from coming within the United States, and may provide for the expulsion of aliens or classes of aliens from its territory, and may devolve upon the executive depart- ment or subordinate officials the right and duty of identifying and arresting such persons, is settled by previous decisions of this court. Wong Wing v. United States, 163 U. S. 228, 237, 41 L. Ed. 140, 16 S Ct. 977." Low Wah Suey v. Backus, 225 U. S. 460, 56 L. Ed. 1165, 32 S. Ct. 735. 249-26. Exclusion of diseased. — Con- gress, in the exercise of its authority over foreign commerce and of its power to regulate immigration, could lawfully en- act the provisions of Act March .3, 1903, c. 1012, § 9, 32 Stat. 1215, which make it unlawful to bring into the United States any alien afiflicted with a loathsome, or dangerous contagious disease, provide for the exacting of a penalty for bringing in an alien so afflicted, and authorize the refusal of clearance papers to a vessel while any such fine imposed upon it remains un- paid. Judgment, International Mercantile Marine Co. t. Stranahan (C. C. 1907) 155 F. 428, affirmed. Oceanic Steam Nav. Co. V. Stranahan, 214 U. S. 320, 53 L. Ed. 1013. 29 S. Ct. 671; International, etc.. Marine Co. V. Stranahan, 214 U. S. 344, 53 L. Ed. 1024. 29 S. Ct. 678. 250-28a. Prostitutes.— Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470; Low Wah Suey v. Backus, 225 U. S. 460, 56 L. Ed. 1165, 32 S. Ct. 734. See post, "Detention and Expulsion or Deportation.'' V, C, 3; "Due Process of Law," V, C, 5; "Importation, Keeping or Harboring Alien Women for Purpose of Prostitution," V, D, 3. 250-28b. Wife of citizen. — Low Wah Suey V. Backus, 225 U. S. 460, 56 L. Ed. 1165, 32 S. Ct. 734; Yeung How v. North, 223 U. S. 705, 56 L. Ed. 621, 32 S. Ct. 517. 20 \'ol. I. ALIEXS. 2 53-256 C. Procedure — 1. Delegatiox to Ixspector and Other Officers, or a Department — c. Finality of Decisions and Court RevienK — Congress may de- volve upon the executive department or subordinate officers the right and duty of identifying and arresting such ahens as have entered the United States in violation of law, and such hearings before executive officers may be made con- clusive when fairly conducted. In order to successfully attack by judicial pro- ceedings the conclusions and orders made upon such hearings it must be shown that the proceedings were manifestly unfair, that the action of the executive officers was such as to prevent a fair investigation, or that there was a man- ifest abuse of the discretion committed to them by the statute. In other cases the order of the executive officers within the arithority of the statute is final.^^^ 3. Detention and Expulsion or Deportation — a. Delegation to Executive Officials — (1) Pozuer and Finality of Decisions. — See ante, "Finality of De- cisions and Court Review," V, C, 1, c. (2) Depiartmental Regulations. — The rules of the secretary of commerce and labor governing the deportation of aliens found as inmates of houses of prosti- tution within three years subsequent to their entry into the United States are not so arbitrary as to be beyond his power, under the act of February 20, 1907, as amended by the act of March 26, 1910, because provision is thereby made for an examination in the absence of counsel, where they also provide for a hearing at which the alien shall have opportunity to show cause why she should not be deported, and for her apprisal at such stage of the proceedings as the person before whom the hearing was held shall deem proper that she may there- after be represented by counsel, and for the forwarding to the department of all papers, including the minutes and any written argument, submitted by counsel.^^'^ 5. Due Process of Law. — An alien who lawfully comes into the United States may be deported under the act of Feb. 20, 1907, as amended March 26, 1910, without a hearing of a judicial character.-* ^^ Assistance of Counsel. — Proceedings resulting in the deportation of an alien found as an inmate of a house of prostitution within three years subse- quent to her entry into the United States are not wanting in due process of law because she had no counsel when first under examination, where such an examination is within the authority of the act of Feb. 20, 1907, as amended by act of March, 1910, and at subsequent stages in the proceeding, and before the hearing was closed or the orders for deportation made, she had the as- sistance and advice of counsel.'*^*' Attendance of Witnesses. — The immigration officer's lack of power to issue process to compel the attendance of witnesses does not render invalid, as denying due process of law, the proceedings had conformably to the act of February 20, 1907, as amended by the act of March 26, 1910, resulting in the deportation of an alien found as an inmate of a house of prostitution within three years subsequent to her entry into the United States.'*^'^ 253-35a. Finality of decision. — Low How v. North, 223 U. S. 705, 56 L. Ed. Wah Suey v. Backus, 225 U. S. 460, 56 L. 621. 32 S. Ct. '517. Ed. 1165, 32 S. Ct. 734; United Slates v. 256-44b. Assistance of counsel. — Low Bitty. 208 U. S. 393, 52 L. Ed. 543, 28 S Wah Suey v. Backus, 225 U. S. 460, 56 L. Ct. 396; Tang Tun v. Edsell, 223 U. S. 673, Ed. 1165. 32 S. Ct. 734. Act of Feb. 56 L. Ed. 606, 32 S. Ct. 359. 20, 1907 (34 Stat, at L. 898, chap. 1134, U. 255-40a. Departmental regulations. — S. Comp. Stat. 1911, p. 499) as amended Tr AAyr; x.eF-""--c.x .c^uxcxuuix:,.— ^ ^^ j^ ^6. 1910 (36 Stat, at L ^fiT ^H i?^'^o-c?rh'"';a ' ^- ' 263, chap. 128, U. S. Comp. Stat. Supp. .,6 L. bd. 110,., .3„ b. Lt. ,..4. jgjj_ p gQj^_ g^^ p^g^^ ^^^ PROCESS 256-44a. Due process of law. — Low OF LAW. Wah Suey v. Backus, 225 U. S. 460, 56 L. 256-44c. Attendance of witnesses. — Ed. 1165, 32 S. Ct. 734; following Yeung Low Wah Suey r. Backus, 225 U. S. 460, 21 256 ALIENS. Vol. 1. Punishment of Perjured Witness. — The fact that the statute makes no provision for the punishment of a witness giving false testimony against the detained person is not an infraction of constitutional right-^^*^ D. Liability of Person Bringing in Immigrants Not Permitted to Land — 1. Liability for Failure to Adopt Precautions to Prevent Land- lAjG — Liability of Vessel, Owner, or Master. — The provisions of Act March 3, 1903, c. 1012, § 18, 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283], requiring officers of any vessel bringing an alien to the United States to '"adopt due precautions" to prevent the landing of any such alien at any time or place other than that designated by the immigration officers, and making any person in charge of a vessel liable to prosecution if he shall "land or per- mit to land" any alien except at such designated time and place, are to be construed together, and the master of a ship cannot be held liable for the un- lawful landing of an alien from his vessel, if he adopted due precautions to prevent it.^^'* Of course it is possible for a master unlawfully to permit an alien to land, even if the alien is a sailor ;^-^'' but the ordinary case of a sailor 56 L. Ed. 1165, 32 S. Ct. 734, following Yeung How v. North, 223 U. S. 705, 56 L Ed. 621, 32 S. Cl. 517. See post, DUE PROCESS OF LAW; WITNESSES. 256-44d. Punishment of perjured wit- ness.— Low Wall Suey v. Backus. 225 U. S. 460. 56 L. Ed. 1165, 32 S. Ct. 734; Yeung How V. North. 223 U. S. 705, 56 L. Ed. C2], 32 S. Ct. 517. 256-45a. Liability of vessel, owner or master. — Taylor v. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53. "Bringing to the United States," in the phrase "bringing an alien to the United States," taken literally and nicely, means, as a similar phrase in § 8 plainly means, transporting with intent to leave in the United States and for the sake of trans- port — not transporting with intent to carry back, and merely as an incident to employment on the instrument of trans- port. Taylor v. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53. Literally, the words "to land" means to go ashore. To avoid certain inconven- iences the government and the courts say that sailors do not land unless they per- manently leave the ship. "Landing from such vessel" takes place and is complete the moment the vessel is left and the shore reached. Taylor v. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53. 256-45b. Unlawful landing — Even of sailor.— Taylor v. United States. 207 U. S. 120, 52 L Ed. 130, 28 S. Ct. 53. In Immigration Act March 3, 1903, c. 1012, § 18. 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283], which requires officers of vessels to take due precautions to pre- vent aliens from landing therefrom, ex- cept at the time and place designated by the immigration officers, the word "aliens" is used in its broad and full meaning and is not restricted to alien immigrants, but includes as well aliens who are members of the ship's crew. While the master of a vessel is not required to prevent officers or members of his crew who are aliens from going on shore in a port of the United States in every case, such section requires him to take reasonable precau- tions suited to the nature of the case to prevent them from deserting and remain- ing in this country. Taylor v. United States, 152 F. 1, 81 C. C. A. 197, judgment affirmed in Taylor v. United States, 207 U. S. 120. 52 L. Ed. 130, 28 S. Ct. 53. Deserting seaman a stowaway. — The fact that an alien seaman deserting while on shore leave was a stowaway under or- der of deportation does not bring the case within the provisions of Immigra- tion Act March 3, 1903, c. 1012, § 18, 32 Stat. 1213, 1217, making it the duty of any officer in charge of any vessel bringing an alien to the United States to adopt precautions to prevent the landing of such alien at any time or place other than that designated by the immigration officers, and punishing him if he lands or permits to land any alien at any other time or place. Judgment (C. C. A.), 152 F. 1, af- firmed. Taylor v. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53; Schrot- ter V. United States (C. C. A. 1908), 157 F. 1005. Criminal prosecutions under immigra- tion laws — Cross-examination. — The mas- ter of a vessel on trial for permitting an alien member of his crew to leave his ves- sel in New York, in Aaolation of Act March 3, 1903, c. 1012, § 18, 32 Stat. 1217 [U. S. Comp. St. Supp. 1905, p. 283], was prop- erly allowed to be asked on his cross-ex- amination as a witness whether a number of other alien members of his crew did not also desert in that port, as material to the question whether or not he took due precautions to prevent aliens from leaving the vessel, as required by the stat- ute. Taylor v. United States, 152 F. 1, 81 C. C. A. 197, judgment affirmed in Taylor V. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53. 22 Vol. I. ALIENS. 256 deserting while on shore leave is not comprehended by said act, notwithstand- ing the omission from this section of the word "immigrants," which had fol- lowed the word "alien," in the earlier acts.^^*" 2. Penalty for Bringing in Diseased i\LiENS. — Empowering the secre- tary of commerce and labor to exact a money penalty for bringing into the United States an alien afflicted with a loathsome or dangerous contagious dis- ease, in violation of the act of March 3, 1903, § 9, when the official medical examination at the port of arrival shows^ that the alien was suffering from the disease at the time of embarkation, the existence of which might have been detected by a competent medical examination made as the statute requires, does not render such statute open to the objection that it defines a crirninal offense, and authorizes a purely administrative officer to determine whether the defined crime has been committed, and, if so, to inflict a punishment.'* ^"^ In such case congress could constitutionally empower the secretary of com- merce and labor to enforce, without invoking the judicial power, the penalty imposed by the act.^°® The enforcement of such penalty is not necessarily controlled by the rules which govern criminal prosecutions ;^^^ and the fact that no notice or hearing is provided for does not render the act void as taking property without due process of law.'*^^ 3. Importation, Keeping or Harboring Alien Women for Purpose op Prostitution or Concubinage. — Power of Congress. — Congress has the power to prohibit the importation of alien women for purposes of prostitution and to punish those who assist in their importation.-*-^'^ But Congress had no power to enact Act Feb. 20, 1907, c. 1134, § 3, 34 Stat. 899 (U. S. Comp. Stat. Supp. 1907, p. 392), for the criminal punishment of the mere keeping, main- taining, supporting, or harboring, for the purpose of prostitution, any alien woman within three years after she shall have entered the United States. The power of congress to punish those who assist in the importation of a prostitute is not involved.'*^* 256-45C. Sailor deserting. — Judgment (C. C. A.) 152 F. 1, affirmed. Taylor v. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53; Schrotter v. United States (C. C. A. 1908) 157 F. 1005. 256-45d. Bringing in diseased aliens — Oceanic Steam Nav. Co. z'. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671. 256-45e. Enforcement of penalty. — Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671. 256-45f. Not controlled merely by rules of criminal prosecutions. — The enforce- ment of the exaction of $100 which the secretary of commerce and labor is au- thorized by Act March 3, 1903, c. 1012, § 9, 32 Stat. 1215, to impose for violations of its provisions against bringing into the United States aliens afflicted with loath- some or dangerous contagious diseases, is not necessarily governed by the rules controlling in criminal prosecutions merely because such exaction is a penalty. Judg- ment, International Mercantile Marine Co. V. Stranahan (C. C. 1907) 155 F. 428, affirmed. Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671; International, etc., Marine Co. V. Stranahan, 214 U. S. 344, 53 L. Ed. 1024, 29 S. Ct._678. 256-45g. Notice or hearing — Due proc- ess of law. — Making the official medical examination at the port of arrival con- clusive for the purpose of imposing the penalty, enforceable by refusing clearance papers until paid, which is authorized by the act of March 3, 1903, § 9, for violating its provisions by bringing into the United States an alien afflicted with a loathsome or contagious disease from which he was suffering at the time of embarkation, the existence of which might have been de- tected by means of a competent medical examination then made, does not render such statute repugnant to U. S. Const., 5th Amend., as taking property without due process of law. Oceanic Steam Nav. Co. V. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 071. 256-45h. Importation for prostitution. —Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470; United States V. Bitty, 208 U. S. 393, 52 L. Ed. 543, 28 S. Ct. 396. 256-45i. Harboring, etc., alien women. —Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. Jurisdiction over such an ofTense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the- Constitution no grant thereof to Congress. Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. 23 256 ALIENS. Yo\. I. Importation for Concubinage. — The importation of an alien woman into the United States in order that she may live with the person importing her as his concubine is for an immoral purpose, within the meaning of the act of Feb. 20, 1907, (34 Stat, at L., 898, chap. 1134; U. S. Comp. Stat. Supp. 1907, p. 389), making it a crime against the United States to import alien women for the purpose of prostitution or for any other immoral purpose.^ ^^j in ac- cordance with the rule of ejusdem generis the immoral purpose must_ be one of the same general class or kind as the particular purpose of "prostitution" speci- fied in the same class. Concubinage is of the same general class or kind as prostitution."*"'" 4. Charge for Return Passage. — A foreign steamship company which law- fully collected in Germany the return passage money from emigrants embarking fnr New York violates the prohibition of the immigration act of Feb. 20, 1907 (34 Stat, at L., 898, chap. 1134, U. S. Comp. Stat. Supp. 1909, p. 447), § 19. against makmg any charge for the return of aliens unlawfully brought into the United States, or taking security therefor, wdiere, after the deportation of such emigrants had been ordered, the steamship company "retained the money with intent to make charge and secure payment for their return passage.^^* 256-45J. Importation for concubinage. —United States v. Bitty, 208 U. S. 393, 52 L. Ed. 543, 28 S. Ct. 396, reversing 155 Fed. 938. 256-45k. United States v. Bitty, 208 U. S. 393, 52 L. Ed. 543, 28 S. Ct. 396. The statute was intended to keep out of the country immigrants whose per- manent residence here would not be desirable or for the common good, and it can not be supposed either that Congress intended to exempt from the operation of the statute the importation of an alien woman brought here only that she might live in a state of concubinage with the man importing her, or that it did not re- gard such an importation as being for an immoral purpose. United States v. Bitty, 208 U. S. 393, 403, 52 L. Ed. 543, 28 S. Ct. 396. The earlier statutes were directed against the importation into this country of alien women for the purpose of prosti- tution. But the statute, on which the amendment rests, is directed against the importation of an alien woman "for the purpose of prostitution or for any other immoral purpose;" and the indictment distinctly charges that the defendant im- ported the alien woman in question "that she should live with him as his concubine," that is, "in illicit intercourse, not under the sanction of a valid or legal marriage." United States v. Bitty, 208 U. S. 393, 400, 52 L. Ed. 543, 28 S. Ct. 396. 256-451. Charge for return passage. — United States v. Nord Deutscher Lloyd, 223 U. S. 512, 56 L. Ed. 531, 32 S. Ct. 244. "Section 19 of the immigration act of 1907 (34 Stat, at L. 898, 904, chap. 1134, U. S. Comp. Stat. Supp. 1909, pp. 447, 458) is not aimed at the aliens of the excluded class, l)ut at the owners of vessels un- lawfully bringing thein into this country. The government might in large measure protect itself by inspection, rejection, and order of deportation, but it is purposed, also, as far as possible, to protect the alien. He might be ignorant of our laws, and ought to be deterred from incurring the expense of making a passage which could only end in his being returned to the country from whence he came. This policy could best be subserved by secur- ing the co-operation of the transportation companies, and to this end the statute required that they should not only main- tain the aliens unlawfully brought by them into this country, but should take them back free of charge." United States V. Nord Deutscher Lloyd, 223 U. S. 512, 56 L. Ed. 531, 32 S. Ct. 244. "The statute, of course, has no extra- territorial operation, and the defendant can not be indicted here for what he did in a foreign country. American Banana Co. V. United Fruit Co., 213 U. S. 347, 53 L. Ed. 826, 29 S. Ct. 511. But the parties in Germany could make a contract which would be of force in the United States. When, therefore, in Bremen the alien paid and the defendant received the 150 rubles for a return passage, they created a con- dition which was operative in New York. If, in that city, the company had refused to honor the ticket, the alien could there have enforced his rights. In like man- ner, if by reason of facts occurring in New York the statute operated to rescind the contract, the rights and duties of the parties could there be determined, and acts of commission or omission, which, as a result of the rescission, were there unlawful. could there be punished." United States v. Nord Deutscher Lloyd, 223 U. S. 512, 56 L. Ed. 531, 32 S. Ct. 244. 24 Vol. I. AMBIGUITY. 2 56 ALIMONY. — See post, Divorce; and Alimony. ALL. — See note 1. ALLEGATA AND PROBATA.— See post. Pleading; Variance. And see post, Specific Performance. ALLEGIANCE.— See Allegiance, vol. 1, p. 258. See ante, Aliens, p. 18; post, Citizenship. ALLOTMENT.— See post, Indians; Public Lands. ALLOWANCE. — See Allovv^ — ^Allowance, vol. 1, p. 259. See post, Army and Navy. As to allowance of interest as damages, see post, Interest. ALLUVION. — See Alluvion, vol. 1, p. 260. See ante. Accession, Accre- tion AND Reliction, p. 4; post, Boundaries. ALTERATION OF INSTRUMENTS.— See the title Alteration of Instru- ments, vol. 1, p. 261. ALTERNATIVE WRITS.— See post. Mandamus. AMBASSADORS AND CONSULS.— See the title Ambassadors and Con- suls, vol. 1, p. 273, and references there given. As to right of a consul to ad- minister the estate of a deceased national, under terms of a treaty, see post. Executors and Administrators. AMBIGUITY. — See post. Interpretation and Construction; Parol Evi- dence. 256-1. All cases. — As to judicial power Privileges meaning all the privileges. of the United States as to all cases in — A charter for a toll road provided, law and equity arising under the con- that "The privileges granted in this stitution, laws and treaties, see post, charter shall continue for fifty years;" APPEAL AND ERROR: COURTS. with a provision that the county courts Power of congress as to rules and of designated counties might, at the ex- regulations as to United States prop- piration of twenty years, or any time erty and territory. — Section 3, art. -4, of thereafter, purchase said road, at the ac- the constitution, declares that "congress tual cost of construction, and make it a shall have power to dispose of and make free road. "The privileges granted in all the needful rules and regulations re- this charter" means all the privileges, in- specting the territorj^ and the property eluding the privilege of taking toll. The belonging to the United States." The full limitation of fifty years would be almost scope of this paragraph has never been meaningless if tolls were not embraced, definitely settled. Primarily, at least, it Scott County, etc.. Road Co. v. Hines, 21.5 is a grant of power to the United States U. S. 3.36, 339, 54 L. Ed. 221. 30 S. Ct. to control over its property. Light v. 110. See post, CORPORATIONS; United States, 220 U. S. .523, 55 L. Ed. TURNPIKES AND TOLLROADS. 570, 31 S. Ct. 485. 25 296-312 AMONG. Vol. I. AMENDMENTS. n. Amendment of Pleadings in Civil Cases, 26. C. In What Particulars Amendable, 26. 1. In Equity, 26. b. Bill 26. (2) Amendments Changing Case Alade by Original Bill, 26. 2. Pleadings at Law, 26. c. Declaration, Petition or Complaint, 26. (1) Proper Scope of Amendments, 26. (d) To Conform to Facts Proved, 26. CROSS REFERENCES. See the title AmendmiJnts, vol. 1, p. 288, and references there given. II. Amendment of Pleading's in Civil Cases. C. In What Particulars Amendable — 1. In Equity — b. Bill — (2) Amend- Clients Changing Case Made by Original Bill. — See note 39. 2. Pleadings at Law — c. Declaration, Petition or Complaint — (1) Proper Scope of Amendments — (d) To Conform to Pacts Proved. — See note 47. AMERICANS. — See Americans, vol. 1, p. 311. See ante. Aliens, p. 18; post, International Law. AMICUS CURI.ffi.— See post. Appeal and Error. AMONG.— See note 4. 296-39. Amendment held germane to original cause of action. — A proposed amendment to the bill in a suit by the federal government to enjoin railway car- riers from interstate transportation of commodities with which tliey are associ- ated, or in which they are interested is germane to the original cause of action, where its allegations tend to show such an exercise by the carrier of its power as a stockholder in the corporation manu- facturing, mining, producing, or owning the commodity carried, as to deprive the latter of all independent existence, and to make it virtually but an agency, or dependenc3% or department of the carrier. United States v. Lehigh Valley R.' Co., 220 U. S. 257. .55 L. Ed. 458. 31 S. Ct. 387. 300-47. Increasing ad damnum in re- plevin to conform declaration to evi- dence as to value. — Increasing the ad damnum of a suit in replevin to an amount within the penalty of the bond by amend- ments to make the declaration conform to the evidence as to value, does not in- troduce a new cause of action. Bierce v. Waterhouse, 219 U. S. 320, 55 L. Ed. 237. 31 S. Ct. 241. Amendment of declaration seeking re- covery of entire amount on contract so as to claim only for goods shown to have been delivered. — Allowing amendment after full trial of a declaration seeking recoverj'- of the entire amount due on a contract for purchase of cattle and feed, so as to claim recovery for the portion shown to have been delivered, should not be denied on the ground of surprise. Judgment, Snyder v. Stribling, 89 P. 222, 18 Okl. 168, affirmed. Snyder v. Rosen- baum, 215 U. S. 261. 54 L. Ed. ]86. 30 S. Ct. 73. 312-4. Commerce among the states. — Commerce among the states is not a technical legal conception but a practical one, drawn from the course of business. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. 715. See post, INTER- STATE AND FOREIGN COMMERCE. In the constitutional provision con- ferring upon congress the power "to regulate commerce * * * among the sev- eral states," the phrase "among the several states" marks the distinction, for the pur- pose of governmental regulation, between coinmerce which concerns two or more states and commerce which is confined to a single state and does not affect other states, the power to regulate the former being conferred upon congress and the regulation of the latter remaining with the states severally. Second Employers' Liability Cases, 223 U. S. 1, 46, 56 L. Ed. 327, 32 S. Ct. 169. See post, INTER- STATE AND FOREIGN COMMERCE. 26 Vol. I. ANIMALS. 320-321 AMOUNT IN CONTROVERSY.— See post, Appeal and Error; Courts; Removal oe Causes. ANCESTOR. — See post. Descent and Distribution. ANCHORED VESSELS.— See ante, Admiralty, p. 10; post, Collision. ANCIENT DOCUMENTS.— See the title Ancient Documents, vol. 1, p. 313, and references there given. ANCILLARY JURISDICTION.— See post, Courts; Injunctions. ANIMALS. III. Injuries from Animals, 27. B. From Animals Grazing upon Unenclosed Lands, 27. 1. At Common Law, 27. 3. Upon Lands of the United States, 27. 5. Driving Cattle upon Another's Land, 28. VII. Health and Sanitary Regulations Regarding Animals, 29. A. Power to Prescribe Sanitary Regulations, 29. 2. Of State Government, 29. d. Effect of Animal Industry Act on State Regulations, 30. e. What Constitutes Violation of Quarantine Laws, 30. CROSS REFERENCES. See the title Animals, vol. 1, p. 316, and references there given. In addition, see post. Interstate and Foreign Commerce. III. Injuries from Animals. B. From Animals Grazing upon Unenclosed Lands — 1. At Common Law. — See note 16. 3. Upon Lands of the United States. — See note 18. Right to Graze Cattle on Forest Reservation. — The United States has by statutory enactment provided that the president may set apart from time to time portions of the public land as a public forest reservation. And these stat- utes provide that the right to graze cattle upon the forest reservation shall be subject to such rules and regulations as the secretary of agriculture shall pre- scribe.^^^ These statutes modify the rule previously laid down that there is an implied license that all persons have a right to graze cattle upon the public land of the United States, in so far as it limits its application to land not set apart as 320-16. Owner's duty at common law. sort of implied license that these lands, — At common law, the owner was re- thus left open, might be used so long as quired to confine his live stock, or else the government did not cancel its tucit was held liable for any damage done by consent. Buford z'. Houtz, 133 U. S. them upon the land of third persons. 820, 33 L. Ed. 618, 10 S. Ct. 305. Its fail- Light z'. United States, 220 U. S. 523, 55 ure to object, however, did not confer L. Ed. 570. 31 S. Ct. 485. any vested right on the complainant, nor 321-18. License implied from continuous did it deprive the United States of the practice. — The common-law rule which power of recalling any implied license required an owner to confine his stock under which the land had been used for was not adapted to the situation of those private purposes. Light v. United States, states where there were great plains and 220 U. S. 523, 535, 55 L. Ed. 570. 31 S. vast tracts of unenclosed land, suitable Ct. 485, citing Steele v. United States, 113 for pasture. And so, without passing a U. S. 128, 130, 28 L. Ed. 952; Wilcox v. statute, or taking any affirmative action Jackson, 13 Pet. 498, 513, 10 L. Ed. 264. on the subject, the United States suf- 321-18a. Grazing on forest reservation. fered its publi:: domain to be used for — United States z'. Grimaud, 220 U. S. such purposes. There thus grew up a 506, 55 L. Ed. 563, 31 S. Ct. 480. 27 321-322 ANIMALS. Vol. I. a forest reservation. ^^'^ Under these laws the secretary of agriculture may make ■a regulation providing that no person shall graze cattle upon any of the lands of the forest reservation without first obtaining a necessary_ permit.^^" And a fail- ure to obey such regulations may be punished as a criminal offense. ^'^"^ Injunction to Restrain Grazing on Forest Reserve. — An injunction will lie to restrain an owner from pasturing his cattle upon lands belonging to the forest reserve of the United States, without obtaining the permit required by law.^^^ Failure to Comply with Fence Laws. — And the failure of the United States to comply with the fence laws of the state in which the lands of the re- serve are located will not affect the right to relief. i^' 5. Driving Cattle: upon Another's Land. — See note 20. 321-18b. Relative to implied license.— United States v. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480; Light V. United States, 220 U. S. 523, 55 L. Ed. 570, 31 S. Ct. 485. "The implied license under which the United States had suffered its public do- main to be used as a pasture for sheep and cattle, mentioned in Buford v. Houtz. 133 U. S. 320, 33 U. Ed. 618, 10 S. Ct. 305, was curtailed and qualified by con- gress, to the extent that such privilege should not be exercised in contravention of the rules and regulations. Wilcox v. Jackson, 13 Pet. 498, 513, 10 L- Ed. 264." United States v. Grimaud, 220 U. S. 506, 521. 55 L. Ed. 563, 31 S. Ct. 480. 321-180. Regulations by secretary of agriculture. — United States v. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480. A regulation by the secretary of agri- culture, forbidding stock grazing on a forest reservation without securing a per- mit, must be regarded as within the au- thority conferred upon him by congress in the forest reserve acts (Act June 4, 1897, c. 2, 30 Stat., 35 [U. S. Comp. St. 1901, p. 1539]; Act February 1, 1905, c. 288, § 5. 33 Stat. 628 [U. S. Comp. St. Supp. 1909, p. 577]), to make rules and regulations governing occupancy and use, and for the preservation of the forests, al- though a fee is charged for such' permits, especially in view of the provisions in the later of the two statutes and in sub- sequent acts respecting the disposition of forest reservation revenue. United States 7>. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480, reversing judgment in 170 Fed. 205. 321-18d. Disobedience rendered criminal. —United States v. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480. Grazing stock upon a forest reserva- tion without the permit required by a rule made and promulgated by the secretary of agriculture under the authority con- ferred upon him by forest reserve acts (.\ct June 4, 1897. c. 2, 30 Stat. 35 [U. S. Comp. St. 1901, p. 1539]; Act February 1, 1905, c. 288, § 5, 33 Stat. 628 [U. S. Comp. St. Supp. 1909, p. 577]), is made an ofTense against the United States by the provisions of those acts that viola- tions of such rules and regulations shall be criminally punishable. United States V. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480, reversing judgment in 170 Fed. 205. 321-18e. Injoining grazing on forest reservations. — Light v. United States, 220 U. S. 523, 55 L. Ed. 570, 31 S. Ct. 485. As to forest reservations, see post, PUB- LIC LANDS. "It appears that the defendant turned out his cattle under circumstances which show that he expected and intended that they would go upon the reserve to graze thereon. Under the facts the court prop- erly granted an injunction. The judg- ment was right on the meriJs, wholly re- gardless of the question as to whether the government had enclosed its prop- erty." Light V. United States, 220 U. S. 523, 538. 55 L. Ed. 570, 31 S. Ct. 485. 321-18f. Failure to comply with fence laws. — Light v. United States, 220 U. S. 523, 55 L. Ed. 570, 31 S. Ct. 485. See, also, post, FENCES. The United States is entitled to in- junctive relief where a cattle owner who has not secured the requisite stock-graz- ing permit from the secretary of agricul- ture turns out his cattle under circum- stances which show that he expected and intended that they v/ould graze on a forest reservation, although the govern- ment may not have complied with the local fence laws, even assuming that such laws can apply to the United States. Light V. United States, 220 U. S. 523, 55 L. Ed. 570, 31 S. Ct. 485. 322-20. Driving cattle upon another's land. — "Fence laws do not authorize wanton and willful trespass, nor do they afford immunity to those who, in disre- gard of property rights, turn loose their cattle under circumstances showing that they were intended to graze upon the lands of another." Light r. United States, 220 U. S. 523, 537, 55 L. Ed. 570, 31 S. Ct. 485. "Even a private owner would be en- titled to Drotection against willful tres- passes, and statutes providing that dam- age done by animals can not be rccov- 28 A'ol. I. ANIMALS. 325 VII. Health and Sanitary Regulations Regarding Animals. A. Power to Prescribe Sanitary Regulations — 2. Of State Govern- ment. — See note oZ. erecl, unless the land had been enclosed with a fence of the size and material re- quired, do not give permission to the owner of cattle to use his neighbor's land as a pasture. They are intended to con- done trespasses by straying cattle; Vaty have no application to cases where they are driven upon unfenced land in order that they may feed there." Light v. United States, 220 U. S. 523, 537, 55 L. Ed. 570, 31 S. Ct. 485, citing Lazarus v. Phelps, 152 U. S. 81, 38 L. Ed. 303; Mon- roe V. Cannon, 24 Montana. 316; Si. Louis Cattle Co. z'. Vaught, 1 Tex. Cr. App. 388; The Union Pacific t. Rollins. 5 Kansas, 165, 176. 325-32. State enactments. — Until there is a congressional enactment upon the subject a state may, in the exercise of its police powers, pass laws providing for the inspection of cattle transported into it from other states. Asbell v. Kansas, 209 U. S. 251, 52 L. Ed. 778. 28 _S. Ct. 485. There is no federal legislation which takes from a state the right to provide for the inspection of cattle and to prohibit the transportation into the state of cattle which have not been declared to be healthy after a proper inspection, cither by the proper state or federal officials. Asbell V. Kansas, 209 U. S. 251, 52 L. Ed. 778, 28 S. Ct. 485. Cattle subject to inspection. — "Cattle, while in the course of transportation from one state to another, and in that respect under the exclusive control of the law of the national government, may at the same time be the conveyance by which disease is brought within the state to which they are destined, and in that re- spect subject to the power of the state exercised in good faith to protect the health of its own animals and its own people. In the execution of that power the state may enact laws for the inspec- tion of animals coming from other states Avith the purpose of excluding those which are diseased and admitting those which are healthy." Asbell v. Kansas. 209 U. S. 251, 256, 52 L. Ed. 778, 28 S. Ct. 485, citing Reid v. Colorado, 187 U. S. 137, 47 L. Ed. 108. No application to interstate shipments. — ''The state may not, however, for this purpose exclude all animals, whether dis- eased or not, coming from other states ("Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527), nor under the pretense of pro- tecting the public health, employ inspec- tion laws to exclude from its borders the products or merchandise of other states; and this court will assume the duty of determining for itself whether the statute before it is genuine exercise of an ac- knowledged state power, or whether, on the other hand, under the guise of an inspection law it is really and substan- tially a regulation of foreign or interstate commerce which the constitution has conferred exclusively upon the congress.'' Asbell V. Kansas, 209 U. S. 251, 256, 52 L. Ed. 778, 28 S. Ct. 485. And see post, INTERSTATE AND FOREIGN COM- MERCE. Police power — Interstate commerce.^ A statute of the state of Kansas makes it a misdemeanor, punishable by fine or im- prisonment or both, for any 'person to transport into the state cattle from any point south of the south line of the state, except for immediate slaughter, without having first caused them to be inspected and passed as healthy by the proper state officials or by the Bureau of Animal In- dustry of the interior department of the United States. See § 27, chap. 494, Laws of Kansas 1905. It has been held that, this statute, it is a proper police regu- lation within the power of the state and is not in conflict with the act of congress of February 2, 1903, 32 Stat. 791, or the act of March 3, 1905, 33 Stat. 1204, relat- ing to the inspection of cattle and that it is not in contravention of the United States constitution as a direct regulation of interstate commerce. Asbell v. Kan- sas. 209 U. S. 251, 52 L. Ed. 778. 28 S. Ct. 485. Interstate commerce is not unlawfully regulated, in the absence of controlling federal legislation, by Laws Kan. 1905, p. 823, c. 495, § 27, making it a misde- meanor for any person to transport into the state cattle from any point south, ex- cept for immediate slaughter, without having first caused them to be inspected and passed as healthy by the proper state officials, or by the Bureau of Animal In- dustry of the Interior Department of the United States. Judgment, State v. Asbell (1906), 86 P. 457, 74 Kan. 397, affirmed. Asbell V. Kansas. 209 U. S. 251. 52 L. Ed. 778, 28 S. Ct. 485. "The obvious purpose of the law was to guard against the introduction into the state of cattle infected with a communi- cable disease. It undoubtedly restricts the absolute freedom of interstate com- merce in cattle, but only to the extent that all cattle coming across the guarded boundary are subjected to inspection to ascertain whether or not they are dis- eased. If healthy thc}^ are admitted, if diseased they are excluded. The validity of such a restriction for such purposes has been frequently considered by this 29 327 ANIMALS. Vol. I. d. Uffect of Animal Industry Act on State Regulations.— S&q note 39. e. What Constitutes Violation of Quarantine Laws. — A carrier who receives cattle from another carrier at a point within a state to be transported to another court, and the principles applicable to the settlement of the question have been clearly defined. The governmental power over the commerce which is interstate is vested exclusively in the congress by the commerce clause of the constitution, and therefore is withdrawn from the states. It is not now necessary to cite the many cases supporting this proposition, or to consider some expressions in the books somewhat qualifying its generality, be- cause in carefully chosen words it has recently been affirmed by us. At this term, Mr. Justice Peckham, speaking for the court, said: 'That any exercise ,of state authority, in whatever form mani- fested, which directly regulates interstate commerce, is repugnant to the commerce clause of the constitution is obvious.' " Asbell V. Kansas, 209 U. S. 251, 254. 52 L. Ed. 778, 28 S. Ct. 485, citing Atlantic Coast Line R. Co. v. Wharton, 207 U. S. 328, 334, 52 L. Ed. 230, 28 S. Ct. 121. 327-39. Effect of animal industry act. — Nothing in the provision of act February 2, 1903, c. 349, 32 Stat. 791 (U. S. Comp. St. Supp. 1907, p. 923), that, when an inspector of the Bureau of Animal In- dustrj'- has issued a certificate that he has inspected animals and found them free from disease, such animals may be intro- duced into any state without further in- spection, or exaction of fees of any kind except such as may be ordered or ex- acted by the secretary of agriculture, pre- cluded the enactment of Laws Kan. 1905, p. 823, c. 495, § 27, making it a misde- meanor for any person to transport into the state cattle from any point south, ex- cept for immediate slaughter, without having first caused them to be inspected and passed as healthy by the proper state officials, or by the Bureau of Animal In- dustry of the Interior Department of the United States. Judgment, State z>. As- bell (1906), 86 P. 457, 74 Kan. 397. af- firmed. Asbell V. Kansas, 209 U. S. 251, 52 L. Ed. 778, 28 S. Ct. 485. A regulation promulgated by the secre- tary of agriculture under the authority of Act February 2, 1903, c. 349, 32 Stat." 791 (U. S. Comp. St. Supp. 1907, p. 923), which is directed to the transportation of cattle from quarantined states, and which in terms recognizes restrictions imposed by the state of destination, does not in- validate — at least, where no quarantined areas are involved — the provision of Laws Kan. 1905, p. 823, c. 495, § 27, mak- ing it a misdemeanor for any person to transport into the state cattle from any point south, except for immediate slaugh- ter, without having first caused them to be inspected and passed as healthy by the proper state officials, or by the Bureau of Animal Industry of the Interior Department of the United States. Judg- ment, State 57. Asbell (1906), 86 P. 457, 74 Kan. 397, aff.rmed. Asbell v. Kansas, 209 U. S. 251, 52 L. Ed. 778, 28 S. Ct. 485. See post, INSPECTION LAWS. "This question was considered and the national legislation carefully ex- amined in Reid v. Colorado, 187 U. S. 137, 47 L. Ed. 108, and the conclusion reached that congress had not then taken any ac- tion which had the effect of destroying the right of the state to act subject. It was there said, p. 148: Tt did not under- take to invest any officer or agent of the department with authority to go into a state, and, without its assent, take charge of the work of suppressing or extirpating contagious, infectious or communicable diseases there prevailing, and which en- dangered the health of domestic animals. Nor did congress give the department au- thority, by its officers or agents, to in- spect cattle within the limits of a state, and give a certificate that should be of superior authority in that or other states, or which should entitle the owner to carry his cattle into or through another state without reference to the reasonable and valid regulations which the latter state may have adopted for the protec- tion of its own domestic animals. It should never be held that congress in- tends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to effect that result is clearly manifested.' There has, however, been later national legislation which needs to be noticed." Asbell v. Kansas, 209 U. S. 251, 257, 52 L. Ed. 778, 28 S. Ct. 485. "Larger powers to control the inter- state movement of cattle liable to be afflicted with a communicable disease have been conferred upon the secretary of agriculture by the act of February 2, 1903, 32 Stat. 791, and the act of March 3, 1905, 33 Stat. 1204. The provisions of these acts need not be fully stated. The only part of them which seems relevant to this case and the question under con- sideration which arises in it is contained in the law of 1903. In that law it is en- acted that when an inspector of the Bureau of Animal Industry has issued a certificate that he has inspected cattle or live stock and found them free from in- fectious, contagious or communicable dis- ease, 'such animals so inspected and certified may be shipped, driven, or trans- ported =•= * * into * * * any state or terri- tory * * * without further inspection or 30 A'ol. I. ANTI-TRUST LAWS. 327-330 point within the same state, does not violate the law forbidding the transporta- tion of cattle from a quarantined state into another state, although the initial carrier may have received the cattle in a quarantined state." ^^ ANIMALS FER^ NATURE.— See post, Gas. ANNEXATION OF TERRITORY.— See post, Foreign Laws; Municipai, Corporations. ANNUITY. — See the title Annuity, vol. 1, p. 329, and references there given. As to granting of annuities to Indians, see post, Indians. ANNUL. — See note a. " ANOTHER COUNTRY.— See note b. ANOTHER SUIT PENDING.— See ante, Abatement, Revival and Sur- vival, p. 1. ANSWER. — See post, Equity; Pleading; Quieting Title. ANTICIPATION.— See post, Patents. ANTI-TRUST LAWS.— See post, AIgngpolies and Corporate Trusts. the exaction of fees of any kind, except such as may at any time be ordered or exacted by the secretary of agriculture.' There can be no doubt that this is the supreme law, and if the state law con- flicts with it the state law must yield. But the law of Kansas now before us recognizes the supremacy of the national law and conforms to it." Asbell v. Kansas, 209 U. S. 251, 257, 52 L. Ed. 778, 28 S. Ct. 485. 327-39a. What constitutes violation of quarantine laws. — United States v. Balti- more, etc., R. Co., 222 U. S. 8, 56 L. Ed. 68, 32 S. Ct. 6. "A sensible, definite meaning is ex- pressed. There must be a delivery for or a receiving for transportation 'from the quarantined portion of any state or terri- tory * * * into any other state or terri- tory * * *' That reception and that trans- portation are the elements of the crime and must exist to constitute it. None of these elements are charged against the defendant. It did not receive the sheep for transportation in Kentuckj^ or trans- port them 'from' Kentucky 'into' Ohio." United States v. Baltimore, etc., R. Co., 222 U. S._8, 14, 56 L. Ed. 68, 32 S. Ct. 6. A carrier does not transport, or de- liver, or receive live stock for transporta- tion, from a quarantined portion of a state, into another state, in violation of the prohibition of Act ]\rarch 3. 1905, c. 1496, § 2, 33 Stat. 1264 (U. S. Comp. St. Supp. 1909, p. 1185), where, being a con- necting carrier, it receives the live stock from the preceding carrier, at a point m a state other than the quarantined state, for delivery to a point in the same state. United States v. Baltimore, etc., R. Co., 222 U. _S. 8. 56 L. Ed. 68, 32 S. Ct. 6. "Section 2 forbids railroad companies and others engaged in transportation to 'receive for transportation or transport * * * from any quarantined portion of any state or territory or the District of Columbia into any other state or terri- tory or the District of Columbia, any cat- tle or other live stock.' The statute also forbids the delivery for transportation, or the driving on foot or transporting by private conveyance, of such stock 'from a quarantined state or territory or the District of Columbia,' or from any por- tion of either, 'into any other state or territory or the District of Columbia.' And these words are repeated in other sections as descriptive of the transporta- tion to which the statute applies." United States V. Baltimore, etc., R. Co., 222 U. S. 8, 13, 56 L. Ed. 68, 32 S. Ct. 6. 330-a. Annul not meaning rescission or avoidance. — In a contract between the United States in a partnership for dredg- ing it was provided that if the parties of the second part should fail to begin on time or should fail to prosecute faith- fully and diligently the work, the part}^ of the first part should be entitled to annul the contract on giving notice in writing to that effect, it was held that the ill-chosen word annul in the contract re- peated in the notice to the contractors and contained in the complaint, can not be taken literally in any of them. It means to refuse to perform further, not to re- scind or avoid. United States v. O'Brien, 220 U. S. 321, 55 L. Ed. 481. 31 S. Ct. 406. See United States v. McMullen, 222 U. S. 460. 56 L. Ed. 269. 32 S. Ct. 128. See, also. post. UNITED STATES. 330-b. Philippine Islands not another country. — The Philippine Islands, notwith- standing their remoteness, are not an- other country within the meaning of the eighth article of the Cuban Treaty, of De- cember 17, 1903, providing that the rates therein granted shall continue "preferen- tial in respect to all like imports from other countries." Eaber v. United States,. 221 U. S. 649. 658. 55 L. Ed. 897. 31 S. Ct.. 659. See post, REVENUE LAWS. 31 330 ANY. Vol. I. ANY.— See note 3. 330-3. Any agent. — Under the pro- visions of § 5209, Rev. Stat., prohibiting associations from making false entries or statements with intent to deceive "any agent appointed to examine the affairs of any such association," a false entry as to the condition of a bank made to the comptroller of the currency under § 5311. Rev. Stat., is within the prohibition. The words "any agent appointed to examine," etc., are all embraced, and can not rea- sonably be held to exclude the comp- troller, the principal agent endowed by the statute with the power to examine national banks. The rule of strict con- struction does not require tliat the nar- rowest technical meaning be given to the words employed in a criminal statute, in disregard of their context and in frustra- tion of the obvious legislative intent. United States v. Corbett. 215 U. S. 233. 54 L. Ed. 173, 30 S. Ct. 81. See post, BANKS AND BANKING. Any employee. — The Employers' Lia- bility x\ct, July 11, 1906. provides that a common carrier engaged in interstate and foreign commerce shall be liable for the death or injury of "any of its employees" which may result from the negligence of "any of its officers, agents or employers." As the word any is unqualified, it follows that liability to the servant is coextensive with the business done by the employers whom the statute embraces; that is, it is in favor of any of the employees of all carriers who engage in interstate com- merce. This also is the rule as to the one who otherwise would be a fellow servant, by whose negligence the injury or death may have been occasioned, since it is provided that the right to recover on the part of any servant will exist, al- though the injury for which carrier is to be held resulted from "the negligence of any of its officers, agents or employees." The act, then, being addressed to all com- mon carriers engaged in interstate com- merce, and imposing a liability upon them in favor of any of their employees, with- out qualification or restriction as to the business in which the carriers or their employees may be engaged at the time of the injury, of necessity includes sub- jects wholly outside of the power of con- gress to regulate commerce. The statute was held repugnant to the constitution and invalid. The Employers' Liabilitv Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141. See El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. See, also, post, INTERSTATE AND FOREIGN COMMERCE. Any immoral purpose. — See post, IM- MORAL. Any part of the trade or commerce. — In the second section of the Anti-Trust Act of July 2, 1890, providing "that every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or com- merce among the several states, or with foreign nations,'" shall be deemed guilty of a misdemeanor, the commerce referred to b}^ the words "any part" construed in the light of the manifest purpose of the statute has both a geographical and 'a. distributive significance, that is, it in- cludes any portion of the United States and any one of the classes of things form- ing a part of interstate or foreign com- merce. Standard Oil Co. z'. United States, 221 U. S. 1, 61, 55 L. Ed. 619, 31 S. Ct. 502. See post, MONOPOLIES AND CORPORATE TRUSTS. Any patent heretofore issued. — A pat- ent from the United States, invalid when made, after five years without attack, must be deemed to have the same effect as against the United States in a suit to remove a cloud on title as though it were valid when issued, in view of the act of March 3, 1891 (26 Stat, at L. 1099, chap. 561), § 8, although this section in form only bars suits to annul the patent. When the statute refers to "any patent hereto- fore issued," it describes the purport and source of the document, not its legal ef- fect. If the act were confined to valid patents it would be almost or quite with- out use. United States v. Chandler- Dunbar, etc., Power Co., 209 U. S. 447. 52 L. Ed. 881, 28 S. Ct. 579. See post, PATENTS. Any person.— See post, PERSON. Any railroad. — Cars used in moving in- trastate traffic on a railway which is a highway of interstate commerce are com- prehended by the Safety Appliance Act of March 2, 1893, declaring, inter alia, that its provisions and requirements shall ap- ply to all trains, locomotives, tenders, cars, and similar vehicles used on, any railroad engaged in interstate commerce, or in the territories and District of Co- lumbia, and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith. Southern R. Co. v. United States, 222 U. S. 20, 56 L. Ed. 72, 32 S. Ct. 2. See post. INTERSTATE AND FOREIGN COMMERCE. Any case. — In § 14 of the Act of March 3, 1891, establishing a court of private land claims, provides that if, in any case it shall appear that the lands or any part thereof decreed to any claimant under the provisions of this act shall have been sold or granted by the United States to any other person, such title from the LTnited States to such other per- son shall remain valid, notwithstanding such decree, with a provision for a judg- 32 Vol. I APPARATUS. 332 ANYTHING ELSE.— See note la. APEX.— See Apex, vol. 1, p. 332. APPARATUS.— See note 2a. See post, Minims and Minerals. ment in favor of the claimant, against the United States. It was contended that the words "if in any case" it shall appear that the lands have been sold by the United States apply as well to the pro- ceeding by the United States as to one where the claimant goes forward. The court held that the words did not require that construction. "If in any case'' means in any case before the court that the act establishes. When the section goes on, "it shall appear that the lands or any part thereof decreed to any claimant un- der the provisions of this act shall have been sold," it is reasonable to suppose that it has reference to those cases in which a claimant is seeking a decree; that is to say, where the claimant is the plain- tiff in the case. Richardson z'. Amsa, ;218 U. S. 289, 54 L. Ed. 1044, 31 S. Ct. 23. See post, COURTS; PUBLIC LANDS. 332-la. Property subject to seizure and forfeiture under revenue laws. — Sub- stances which are not in themselves tax- able under the laws of the United States are not embraced in the words anything else, as used in U. S. Rev. Stat., § 3455. U. S. Comp. Stat. 1901, p. 2279, providing for a seizure, forfeiture, and penalty for selling packages which contain, at the time of sale, anything else than the con- tents when the same were lawfully stamped by a revenue officer, even where there is no intent to defraud, and for a much heavier penalty where there is such fraudulent intent. United States v. Graf Distilling Co., 208 U. S. 198, 52 L. Ed. 452. 28 S. Ct. 264. See post, REVENUE LAWS. 332-2a. Apparatus and process dis- tinguished. — "A process and an apparatus by which it is performed are distinct things. They may be found in one pat- ent; they may be made the subject of different patents." Leeds, etc., Co. v. Victor, etc., Mach. Co., 213 U. S. 301, 318, 53 L. Ed. 805. 29 S. Ct. 495; Expanded Metal Co. r. Bradford. 214 U. S. 366, 385. 53 L. Ed. 1034. 29 S. Ct. 652. See post, PATENTS. 12 U S Enc— 3 33 APPEAL AND ERROR. Vol. I. APPEAL AND ERROR. n. The Various Remedies Considered, 44. B. Appeal and Writ of Error, 44. 2. Writ of Error, 44. b. Proceedings Reviewable by Writ of Error, 44. (1) Common-Law Proceedings, 44. 6. Review of Proceedings in Territorial Courts, 44. •a. In General, 44. D. Mandamus, 44. 1. In General, 44. E. Habeas Corpus, 44. 1. In General, 44. F. Certiorari, 45. 1. In General, 45. III. Appellate Jurisdiction, 45. A. Acquisition and Extent, 45. 3. Source of Appellate Power, 45. C. Jurisdiction in Particular Proceedings, 45. 1. In Criminal Cases, 45. d. Exceptions to General Rule, 45. (4) Habeas Corpus Proceedings, 45. e. Statutory Provisions, 46. D. Appellate Jurisdiction over Particular Courts and Tribunals, 46. 1. Over District Courts, 46. b. Under Circuit Court of Appeals Act, 46. (i^) In General, 46. (1) In Cases in Which the Jurisdiction of the Court Is in Issue, 46. (3) In Cases of Conviction of Infamous Crimes, 47. (4) In Cases Involving the Construction or Application of the Federal Constitution, 47. (5) In Cases Involving the Constitutionality of Any Law of the United States or the Validity or Construction of Treaties, 47. 2. Over Circuit Courts, 47. b. By Direct Appeal, 47. (1) Under Circuit Court of Appeals Act, 47. bb. In \\'hat Cases Allowable, 47. aaa. In Cases in Which the Jurisdiction of the Court Is in Issue, 47. aaaa. In General, 47. bbbb. Jurisdiction of Court as a Federal Court I\Iust Be Involved, 48. eeee. What Are Questions of Jurisdiction. 49. bbbbb. Specific Applications of General Rule. 49. ffff. Necessity for Finality of Judgment, 50. hhhh. The Certificate. 51. ^ bbbbb. Necessity for, 51. ddddd. Form and Requisites, 51. 34 Vol. I. APPEAL AND ERROR. eeeee. Presumptions on Appeal with Re- spect to Certificate, 51. jjjj. Double Appeals, 51. kkkk. Hearing and Determination, 52. 1111. Scope of Review, 52. mmmm. \\'aiver, 53. nnnn. Perfecting Appeal, 53. ccc. In Cases of Conviction of Capital or Infamous Crimes, 53. aaaa. By Act of Alarch 3rd, 1891, 53. aaaaa. In General, 53. ddd. In Cases Involving the Construction or Ap- plication of the Federal Constitution, 53. bbbb. Determination of Question, 53. cccc. Proceedings Reviewable, 56. ffff. Time When Constitutional Question Alust Exist, 56. gggg. Scope of Review, 56. eee. In Cases Involving the Constitutionality of Any Law of the United States or the Va- lidity or Construction of Treaties, 56. aaaa. In General, 56. bbbb. Determination of Question, 57. fff. In Cases Involving the Constitutionality of State Laws and Constitutions, 57. aaaa. In General, 57. dddd. Showing as to Jurisdiction, 57. 3. Over Circuit Court of Appeals, 58. b. By Appeal or Writ of Error, 58. (4) Decisions Reviewable, 58. ee. Cases Dependent upon Citizenship of Parties, 58. gg. Cases Arising under the Criminal Laws, 61. hh. Cases Arising under the Trademark Laws, 61. (7) Reversal or Affirmance, 62. d. By Certiorari, 62. (1) In General, 62. (3) In What Cases the Writ May Issue, 62. aa. In General, 62. (5) Review of Interlocutory Orders, 63. (9) Scope of Review, 63. (9>4) Affirmance, 64. CIO) Rendering and Ordering Final Judgment, 64. 4. Over Courts of the District of Columbia, 64. a. Right to Appellate Review, 64. b. W^hat Law Governs, 65. (1) In General, 65. d. Decisions Reviewable, 65. (2) Necessity for Finality of Judgments and Decrees, 65. (3) Summary and Special Proceedings, 65. 5. Over Court of Claims, 65. a. In General. 65. f. Decisions Reviewable, 66. (3) Jurisdiction as Dependent upon Nature and Form of Judgment, 66. 33 APPEAL AND ERROR. Vol. I. bb. Decision Must Be Judicial in Its Nature, 66. h. Review of Findings on Questions of Fact, 66. (1) In General, 6b. j. Transfer of Cause, 66. (4) The Record, 66. 6. Over Territorial Courts, 66. a. In General, 66. b. Under Circuit Court of iVppeals Act, 67. c. Over the Indian Territory, 67. d. Over Territory of Hawaii, 67. * f. Over Particular Proceedings, 68. (1) In Criminal Cases, 68. h. Assignment of Errors, 68. i. Scope and Extent of Review, 68. (1) In General, 68. (2) Necessity for Finality of Decision, 68. (3) Review of Questions of Fact, 69. •aa. In General, 69. bb. Review of Findings of Fact by Territorial Court, 69. (5) Questions of Practice, 69. j. The Statement of the Facts, 70. 1. Mandate, 71. m. Afifirmance or Reversal, 71. 7. Over State Courts, 71. a. In General, 71. g. Decision Must Be That of "Highest Court" in State, 72. h. What Is the Assertion of "a Right or Immunity," 7c). i. Decisions Reviewable, 74. (2) Necessity for Finality of Judgment or Decree, 74. k. Necessity for Adverse Decision, 74. (3) Under Third Clause of the Statute, 74. 1. Parties, 74. (1) In General, 74. m. Who May Make the Objection, 74. p. Showing as to Jurisdiction, 75. (1) In General, 75. (2) That Federal Question W^as Actually or Necessarily Raised and Decided, 75. aa. In General, 75. (3) Where Decision Is Based on Independent Grounds, 76. (4) Questions Must Be Re.al and Not Fictitious or Friv- olous, 78. (10) Time and Manner of Showing Existence of Federal Question, 79. aa. In General, 79. bb. Must Be "Specially Set Up or Claimed," 79. aaa. In General, 79. ee. Certificate of Presiding Judge of State Court, 80. ddd. Weight and Sufficiency, 80. ff. Time of Claiming Federal Question, 80. aaa. In General, 80. aaa>4. In Assignments of Error in Federal Su- preme Court, 80. iii. On Second Appeal, 81. kkk. In Petition for Writ of Error to This Court, 81. 36 Vol. I. APPEAL AND ERROR. mmm. In Petition for Rehearing, 81. aaaa,. In General, 81. bbbb. Qualifications of General Rule, 81. 000. Raising Federal Question for First Time in This Court, 82.'^ cj. Decisions Reviewable, 82. (2 1/5) Denial of Defenses Claimed under Statutes of Ter- ritories, 82. (2 2/5) Claim of Right under Safety Appliance Act, 82. (2 3/5) Denial of Rights -under the Copyright Laws, 82. (2 4/5) Denial of Rights under Federal Incorporation Act, 83. (4) Denial of Rights under National Bank Act, 83. bb. Showing as to Jurisdiction, 83. (5) Denial of Rights under Bankrupt Act, 83. (6) Denial of Right to Remove Causes to Federal Courts, 84. aa. In General, 84. (7) Denial of Full Faith and Credit of Judgments, Records and Judicial Proceedings of Sister States, 84. (7y2) Denial of Full Faith and Credit to Judgments of Courts of Foreign States and Nations, 85. (17) Denial of Due Process of Law or Equal Protection of the Laws, 85. aa. In General, 85. jj. Showing as to Jurisdiction, 86. (19) Denial of Rights under the Commerce Clause of the Constitution, 86. (24) Claim of Title to Land under United States, 88. aa. In General, 88. bb. Construction of Patents, 88. cc. Titles Claimed under Patents Based upon Spanish or Mexican Grants, 88. ( 39) Questions Arising under Federal Mining Statutes, 89. (46) Questions xA-rising under the Public Land Acts, 89. (50) Federal Statutes Relating to Rivers and Harbors, 89. {S5) Impairment of Obligation of Contract, 89. aa. In General, 89. bb. Prior or Subsequent Legislation, 90. kk. Determination as to Validity. Interpretation and Existence of Contract, 90. 11. Showing as to Jurisdiction, 90. (61) Questions of General Law, 91. aa. In General, 91. bb. Various Specific Applications of the General Rules, 91. dd. General Principles of Equity, 93. ee. Principles of Comity, 93. ff. Res Adjudicata, Laches and Estoppel, 93. gg. Qualifications of General Rules, 94. (62) Where Decision of State Court Depends upon the Con- struction of State Statutes and Constitutions, 94. aa. In General, 94. bb. Various Specific Applications of the General Rules, 94. 37 APPEAL AND ERROR. Vol. I. cc. Enactment of State Statutes, 95. (63) Where Decision of State Court Depends upon Ques- tions of State Practice and Procedure, 95. s. Transfer of Cause, 96. (4) Allowance of Writ of Error, 96. cc. By Whom Allowed, 96. (13) Assignment of Errors, 96. t. The Record, 96. (1) In General, 96. (2) Form and Contents of Record, 96. dd. Petition for Rehearing, 96. hh. Assignment of Errors, 96. u. Scope of Review, 97. (1) In General, 97. (2) Irregularities and Mere Errors, 98. (4) Questions of Fact, 98. aa. In General, 98. bb. Rulings on Questions of Evidence. 99. cc. Findings of Fact by Referee, 100. ee. Rule in Equity Proceedings, 100. V. Affirmance, Reversal or Dismissal, 100. (3) Reversal, 100. aa. In General, 100. (4) Dismissal, 100. aa. Grounds for Dismissal, 100. ddd. Want of Substantiality in Claim, 100. eee. Moot Cases, 101. (5) Hearing and Determination, 101. (6) Modification, 101. y. Mandate, 101. (1) Remand for Further Proceedings, 101. (4) Compliance with Mandate, 101. 8. Over Military Courts and Tribunals, 102. 9. Over Supreme Court of Philippine Islands. 102. a. In General, 102. b. Amount in Controversy, 102. c. Remedies for Transferring Cause, 103. d. Re-Examination of Facts, 103. h. The Record, 103. i. Scope of Review, 104. 11. Over Supreme Court of Porto Rico and United States District Court, 104. a. In General, 104. b. Jurisdiction as Dependent on Amount in Controversy, 104. c. Jurisdiction as Dependent on Claim of Federal Right, 105. e. Necessity for Finality of Judgment, 105. f. Review of Findings of Fact, 106. E. Under Circuit Court of Appeals Act, 106. 3. Purpose or Object of Statute, 106. 9. Appellate Jurisdiction of Circuit Court of Appeals, 106. a. In General, 106. i. Finality of Judgments and Decrees, 106. (2) Interlocutory Orders Granting or Refusing Injunc- tions, 106. j. Limitations upon Appeal, 107. k. Double Appeals, 107. 38 Vol. I. APPEAL AND ERROR. (1>^) Scope of Review, 107. m. Mandate, 107. F. Appellate Jurisdiction as Dependent upon Amount or Value in Con- troversy, 107. 2. What Law Governs, 107. a. In General, 107. 3. Review of Proceedings in Particular Courts, 108. a. Appeals from Territorial Courts, 108. d. Appeals from District of Columbia. 108. 11. Amount Actually in Dispute Controls, 108. a. In General, 108. e. Collateral Efifect of Judgment, 108. 13. Aggregate Amount of Demand, 108. g. Suit to Recover Possession of Land, 108. h. Hearing Causes Together, 109. i. Qualification of General Rule, 109. ( 1 ) Persons Having Common and Undivided Interests, 109. 14. Set-Ofif and Counterclaim, 109. 16. Showing and Determination of Amount, 109. d. Affidavits, 109. o. Determination of Amount in Particular Proceedings, 109. (3) In Probate Proceedings, 109. (5) In Suits to Foreclose Mortgages, 109. (6) In Suit to Compel City to Lew Tax to Pay Its Debt, 110. IV. Decisions Reviewable, 110. B. Nature, Form and Validity of Judgment as Governing Right of Re- view, 110. 1. In General, 110. 2. Decision Must Be Exercise of Judicial Power, 110. C. Finality of Decision as Governing Right of Review, 111. 2. Necessity for Finality, 111. a. In General, 111. b. Under Circuit Court of Appeals Act, 111. 3. Statement of General Rules or Tests, 111. a. In General, 111. 4. Particular Judgments, Orders and Decrees Considered, 112. k. Decisions with Respect to Reference, 112. (1) Decree Ordering a Reference, 112. n. Decisions Affecting Pleadings, 112. (1) Judgments on Demurrers, 112. p. Vacating and Setting Aside Judgment, 112. s. Judgments Reversing and Remanding Causes, 113. (1) In General, 113. t. Orders Made in Progress of Cause, 113. (6) Order Directing Witness to Testify and Produce Doc- uments, 113. D. Discretionary Matters. 113. 2. Amendments, 113. 3. Bail, 113. 8. Continuances, 113. 9. Costs, 114. 13. Evidence, 114. d. Witnesses, 114. 16. Injunctions, 114. 18. Intervention, 114. 39 APPEAL AND ERROR. ^ Vol. I. 25. New Trials, 114. 27. Pleadings, 114. a. Supplemental Pleadings, ll4. e. Withdrawal and Striking Out Pleadings, 115. 27 Yz. Power to Punish for Contempt, 115. 39. Acts of Ofificers of the Various Departments, 115. E. Review of Questions of Fact, 115. I. In General, 115. 3. Concurrent Decisions of Two Inferior Courts, 115. a. In General, 115. 7, Weight and Sufficiency of Evidence, 116. 8. Excessiveness of Damages, 117. 10. Decisions of Land Department, 117. 12. How Findings of Fact by the Court May Be Reviewed, 117. b. Review of Findings of Court, 117. (2) Statutory Rule, 117. bb. To What Courts Applicable, 117. ff. Form and Sufficiency of Findings, 117. bbb. Facts Must Be Found by Circuit Court, 117. kk. Review of Findings upon Questions of Fact, 118. e. Review of Findings by Referees, Arbitrators, etc., 118. V. Certificate of Division of Opinion, 118. A. Under the Acts of 1802 and 1872, 118. II. Affirmance or Reversal, 118. b. Division of Opinion, 118. B. Under Circuit Court of Appeals Act, 118. 1. In General, 118. 5. Questions to Be Brought Up and Considered, 118. e. Discretionary Matters, 118. 6. Form, Contents and Sufficiency of Certificate, 119. a. In General, 119. d. Certificate Must Present a Distinct Point or Proposition of Law, 119. 7. Review of Questions of Fact, 119. 8. Right to CerTify the Whole Case to This Court, 119. 11. Affirmance — Division of Opinion, 119. VI. Parties and Persons Entitled to Appeal, 119. A. Who Entitled to Appeal, 119. 1. In General, 119. 3. Party Aggrieved, 120. 4. Appealable Interest, 120. a. In General, 120. 5. Particular Parties and Persons Considered, 120. k. States, 120. (2) The State or Lmited States in Criminal Cases, 120. (a) Former Rule as to Right of United States to Ap- peal, 120. (b) Statutes Allowing United States an Appeal in Criminal Cases, 120. aa. Right of Appeal and Construction of Statute, 120. bb. Scope of Review, 123. B. Proper and Necessary Parties, 124. 1. Plaintiff in Error, 124. a. In General, 124. 40 Vol. I. APPEAL AND ERROR. c. Parties to Joint Judgments and Decrees, 125. (l)-In General, 125. (3) Summons and Severance or Equivalent Proceedings, 125. (4) Limitations of General Rule, 125. E. Death of Party, 125. 2. Of PlaintiiT in Error, 125. 3. Of Defendant in Error, 125. VII. Waiver of Right, 125. B. Implied Waiver or Release of Errors, 125. 1. In General, 125. VIII. Exceptions and Objections, 126. A. General Principles, 126. 3. Necessity for Exceptions, 126. 4. Time for Perfecting Exceptions, 126. B. Application of Rules to Particular Instances, 126. 1. Form of Action, Modes of Procedure and Irregularities at the Trial, 126. 6. Matters of Defense, 126. 13. Instructions, 126. b. Objections Must Be Made below, 126. d. Form and Sufficiency of Exceptions and Objections, 126. e. Time for Excepting, 126. 17. Jurisdiction and A'enue, 127. a. In General, 127. b. Equity Jurisdiction, 127. (2) Adequate Remedy at Law, 127. 18. Parties, 127. a. For Want of Proper Parties, 127. b. For Misjoinder of Parties, 127. 19. Pleadings, 128. b. Plea or Replication, 128. 30. Criminal Proceedings, 128. IX. Transfer of Cause, 128. C. Prayer for and Allowance of Appeal, 128. 2. The Petition or Application, 128. d. Amendment of Petition, 128. D. Limitations upon Time for Taking, 128. 2. In Particular Proceedings and Courts, 128. h. In Criminal Cases, 128. 3. When Statute Begins to Run, 128. 4. Postponement, Suspension or Interruption, 129. a. When Is an Appeal Taken, 129. b. Motion for New Trial or Petition for Rehearing, 129. E. The Writ of Error, 129. 6. Amendment of Writ, 129. c. Amendable Defects, 129. (6) Defects with Respect to the Parties, 129. F. The Citation, 129. 3. Necessity for, 129. b. Appeals Allowed in Open* Court, 129. (1) In General, 129. G. Appeal Bond, 129. 41 APPEAL AND ERROR. Vol. I. 2. Necessity for, 129. a. In General, 129. 4. Form and Sufficiency, 129. g. Dismissal, 129. 8. Obviating Defects in Bonds and New Bonds, 129. 12. Actions on Bond, 129. a. Liability of Sureties on Appeal Bonds, 129. (4) Liability Fixed by Affirmance of Judgment, 129. (5) Right of Sureties to Reimbursement, 129. H, The Record or Transcript, 130. 4. Errors Not Apparent on Face of Record and Matters to Be Shown by Record, 130. a. In General, 130. h. Evidence, 130. (4) Witnesses, 130. j. Papers and Documentary Evidence, 130. (1) In General, 130. 7. Filing, 130. c. Time of Filing, 130. (7) Docketing and Dismissing Causes, 130. aa. The Rules of Court Stated, 130. 8. Authentication and Certification, 130. a. Necessity for, 130. 12. Impeachment or Contradiction of Record, 130. X. Assignment of Errors, 131. C. Necessity for, 131. 1. In General, 131. E. Form and Sufficiency, 132. 1. In General, 132. XL Briefs, 132. C. Filing, 132. 1. Who May File, 132. XII. Effect of Appeal, 132. B. On Jurisdiction of Trial Court, 132. 1. In General, 132. 4. Effect on Injunctions Below, 132. XIV. Dismissal and Reinstatement, 133. A. Dismissal, 133. 1. Grounds for Dismissal, 133. a. No Actual Controversy Existing, 133. (1) In General, 133. (3) Specific Applications of General Rules, 133. bb. Compromise or Settlement of Controversy, 133. aaa. Controversies between Private Individuals, 133. cc. Criminal Prosecutions, 133. aaa. In General, 133. 6. The Motion, 134. a. Uniting Motion to Affirm with Motion to Dismiss, 134. (1) In General, 134. c. Notice of Motiop, 134. (1) Necessity for, 134. XV. Presumptions on Appeal, 134. A. In Support of Proceedings Below. 134. 42 Vol. I. APPEAL AND ERROR. 1. In General, 134. 5. As to Jurisdiction, 134. a. Of Trial Court, 134. (5) Change of \'enue, 134. 6. As to the Pleadings, 134. e. Waiver or Abandonment of Issues. 134. XVI. Reversible Error, 134. A. Right to Complain of Error, 134. 1. Parties not Appealing, 134. a. In General, 134. 2. Errors Afifecting Co-Party, 135. B. Statement of General Principles, 135. 1. Error Must Be Prejudicial, 135. a. In General, 135. b. Illustrative Cases, 135. (2) Defects and Irregularities in the Pleadings, 135. bb. Striking Out Pleadings, 135. (3) Errors with Respect to the Evidence, 135. bb. Admission of Evidence, 135. aaa. In General, 135. cc. Exclusion of Evidence, 136. aaa. Harmless Error, 136. dd. Witnesses, 136. aaa. In General, 136. ee. Curing Errors, 136. (4) Errors with Respect to the Instructions, 137. aa. In General, 137. bb. Inaccuracies in Expression, 138. dd. Invasion of Province of Jury, 138. aaa. In General, 138. (5) Rule in Criminal Cases, 138. 2. Presumption as to Prejudice, 138. 3. Other Kinds of Harmless Errors Considered, 138. a. Invited Errors, 138. (1) In General, 138. C. Waiver of Error, 139. 2. Implied Waiver, 139. XVII. Hearing and Determination, 139. A^. Determination of Unadjudicated Questions, 139. C. Advancement of Causes, 139. 2. What Causes Advanced, 139. e. Criminal Cases, 139. M. Effect of Change in Law Pending Appeal, 139. 2. Repeal of Statutes, 139. O. Scope of Review, 140. 1. In General, 140. 1^. Matters Not Raised in Court below, 140. 7. Matters Not Decided below, 140. 8. In Particular Cases, 140. g. Review by Supreme Court of Philippine Islands, 140. h. Appeal from Order Granting Preliminarv Injunction. 141. Q. Reversal, 141. 2. Grounds for Reversal, 141. 43 384-399 APPEAL AND ERROR. Vol. I. a. In General, 141. f. Changing Theory of Case on Appeal, 141. 8. Rendition and Entry of Judgment, 141. a. Rendering and Ordering Final Judgment, 141. (1) In General, 141. R. Affirmance, 141. 2. Grounds for Affirmance, 141. aj^. That Contentions Urged for Reversal Are Stare Decisis,. 141. g. Division of Opinion, 142. (1) In General, 142. (4) Force and Effect of Judgment, 142. bb. The Rule of Precedents or Stare Decisis, 142. 5^. Affirmance without Prejudice, 142. S. Modification, 142. U. Force and Effect of Decision, 142. 1. On Second Appeal, 142. a. In General, 142. e. Matters Concluded, 143. (1) Jurisdictional Matters. 143. CROSS REFERENCES. See the title Appe^\l and Error, vol. 1, p. 333, and references there given. In addition, see post. Bankruptcy; Chinese; Exclusion Acts; Contempt; Courts; Exceptions, Bill of, and Statement of Facts on Appeal; Man- HAMUS. As to appeals from commerce court, see post. Interstate and Foreign Commerce. II. The Various Remedies Considered. B. Appeal and Writ of Error — 2. Writ oe Error — b. Proceedings Reviezv- able by Writ of Error — (1) Common-Law Proceedings. — A writ of error is the general method of bringing cases to the federal supreme court ; an appeal the exception, confined to equity in the main.'*-^ 6. Revievv^ of Proceedings in Territorlvl Courts — a. In General. — See note 72. D. Mandamus — 1. In General. — See note 2. E. Habeas Corpus — 1. In General. — See note 26. 384-42a. Writ of error and appeal.— parte Leaf Tobacco Board, 222 U. S. 578, Carino v. Insular Government, 212 U. S. 56 L. Ed. 323, 32 S. Ct. 833. 449, 456, 53 L._ Ed. 594, 29 S. Ct. 334. Mandamus can not be used as a sub- 388-72. Review of proceeding in terri- stitute for an appeal or writ of error to torial courts. — A decree of the supreme correct the error, if any, committed by a court of the territory of Oklahoma, af- federal circuit court in denying a motion firming a decree of the trial court, set- to remand, which presented for decision ting aside a sale made under attachment the question whether there was in the proceedings as a cloud on title, and di- case a controversy wholly between citi- recting the enforcement of a trust deed zens of different states, to the complete by sale, is reviewable in the supreme determination of which the state, though court of the United States only by ap- named as a party plaintiff, was not a peal. Judgment (1906), 85 P. 459, 16 Okl. necessary party. Ex parte Nebraska, 209 131, affirmed. Southern Pine Lumber Co. U. S. 436, 52 L. Ed. 876, 28 S. Ct. 581. r. Ward, 208 U. S. 126, 52 L. Ed. 420, 28 See post, MANDAMUS. S. Ct. 239. 399-26. Habeas corpus can not be made 395-2. Mandamus can not perform of- a substitute for writ of error. Ex parte fice of writ of error.— Ex parte Harding, Glasgow, 223 U. S. 709, 56 L. Ed. 623, 32 219 U. S. 363, 55 L. Ed. 252, 31 S. Ct. 324; S. Ct 519, citing Ex parte Mirzan, 119 Ness V. Fisher, 223 U. S. 683, 56 L. Ed. U. S. 584, 30 L. Ed. 513, 7 S. Ct. 341; 610, 32 S. Ct. 356; In re Riggs, 214 U. Riggins v. United States, 199 U. S. 547, S. 9, 14, 53 L. Ed. 887, 29 S. Ct. 598; Ex 50 L. Ed. 303, 26 S. Ct. 147; In re Lin- 44 Vol. I. APPEAL AXD ERROR. 403-407 F. Certiorari — 1. Ix General. — See note 41. • III. Appellate Jurisdiction. A. Acquisition and Extent — 3. Source of Appellate Power. — See note 71. C. Jurisdiction in Particular Proceedings — 1. Ix Criminal Cases cl. Excepiions to General Rule — [A) Habeas Corpus Proceedings. — Certificate of Probable Cause. — Under the act of March 10, 1908, c. 76, 35 Stat. 40 tio appeal is allowable from a final decision of the court of the United States in coin, 202 U. S. 178, 50 L. Ed. 98-4, 26 S. Ct. 602; Glasgow v. Moyer, 225 U. S. 420, 56 L. Ed. 1147, 32 S. Ct. 753; Wil- liams V. Walsh, 222 U. S. 415, 422, 56 L. Ed. 253. 32 S. Ct. 137; Wise v. Henkel, 220 U. S. 556, 55 L. Ed. 581, 31 S. Ct. 599; •Harlan v. McGourin, 218 U. S. 442, 445, 54 L. Ed. 1101, 31 S. Ct. 44. See post. HABEAS CORPUS. Where a court has jurisdiction, mere errors which have been committed in the course of the proceedings can not be corrected upon a writ of habeas corpus, which may not in this manner usurp the functions of a writ of error. Kaizo v. Henry, 211 U. S. 146. 148. 53 L. Ed. 125. 29 S. Ct. 41. "The principle is not the less appli- cable because the law which was the foundation of the indictment and trial is asserted to be unconstitutional or un- certain in the description of the offense. Those questions, like others, the court is invested with jurisdiction to try if raised, and its decision can be reviewed, like its decisions upon other questions, by writ of error. The principle of the cases is the simple one that if a court has juris- diction of the case, the writ of habeas corpus can not be employed to retry the issues, whether of law, constitutional or other, or of fact." Glasgow v. Moyer, 225 U. S. 420. 56 L. Ed. 1147, 32 S. Ct. 753. Habeas corpus will not issue as a sub- stitute for a writ of error in favor of a person in custody under a conviction in a federal circuit court having jurisdiction of the case, to review its holding that the affidavit of prejudice authorized by the Judicial Code of March 3, 1911 (36 Stat, at L. 1087, chap. 231. U. S. Comp. Stat. Supp. 1911, p. 128). § 21, could not be filed after the case had been tried and verdict rendered, or to test the correct- ness of the court's rulings upon his de- fenses of law or fact, although the lavv' which was the foundation of the indict- ment and trial is asserted to be uncon- stitutional or uncertain in the description of the offense. Glasgow v. Moyer, 225 U. S. 420, 56 L. Ed. 1147, 32 S. Ct. 753. To test jurisdiction of court over In- dians. — Hal)eas corpus will not be issued as a substitute for a writ of error on be- half of one convicted in a federal circuit court under an indictment charging the murder of one Indian by another, upon an Indian reservation, en the ground that such court was without jurisdiction be- cause in fact the accused was a citizen of the United States, and the place of the crime, by reason of allotment and patent, had ceased to be a part of the reservation. Toy Toy v. Hopkins. 2].2 U. S. 542. 53 L. Ed. 644, 29 S. Ct. 416. 403-41. Certiorari can not independently be used to supply the place of a writ of error for the mere correction of errors below, because of the provision of Act September 24, 1789. c. 20, § 14, 1 Stat, 81 (U. S. Comp. St. 1901, p. 580), sub- stantially re-enacted as Rev. St. U. S., § 716 (U. S. Comp. St. 1901, p. 580), giv- ing the federal supreme court power to issue all writs not especially provided for by statute which m.ay be necessary for the exercise of its jurisdiction, and agree- able to the principles and usages of law. United States v. Dickinson, ^213 U. S. 92. 53 L. Ed. 711, 29 S. Ct. 485. See post. CERTIORARI. 407-71. The appellate jurisdiction in the federal system of procedure is purely statutory. Heike v. United States. 217 U. S. 423. 428. 54 L. Ed. 821, 30 S. Ct. 539. In United States v. Dickinson, 213 U. S. 92, 53 L. Ed. 711, 29 S. Ct. 485, Mr. Justice Fuller, in a lengthy opinion in which he rcA-iewed all prior decisions, sums up the rule as follows: "The rule remains that appeal and writ of error, being the proper forms of procedure pro- vided for the mere correction of error, the appellate jurisdiction of this court for that purpose is limited to the cases in which express provision is made for ap- peals or writs of error.'" Except in cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party — in which cases the federal suoreme court may exercise original jurisdiction. the federal supreme court exercises appellate jurisdiction both as to law and fact with such exceptions and with such regula- tions as congress shall make in the other cases to which, by the constitution, the judicial power of the United States ex- tends. Const., art. Ill, § 2. What such ex- ceptions and regulations should be it is for congress in its wisdom to establish, having, of course, due regard for the provision of the constitution. United States V. Bitty. 208 U. S. 393, 52 L. Ed. 543. 28 S. Ct. 396. 45 420-431 APPEAL AND ERROR. Vol. I. habeas corpus proceedings issued from state court, unless the United States court from which the final decision was rendered, or justices of the suprerne court, shall be of opinion that there exists probable cause for an appeal, in which event, on allowing same, the said court or justice shall certify that there is probable cause for such allowance. Where there is no certificate of prob- able cause, the case will be dismissed for want of jurisdiction.^^a e. Statutoyv Provisions. — See note 38. D. Appellate Jurisdiction over Particular Courts and Tribunals — 1. Over District Courts — b. Under Circuit Court of Appeals Act — (^) In General. — A writ of error issues directly from the supreme court to the dis- trict court of the United States under § 5 of the act of March 3, 1891, c. 517, 26 Stat. 827, as amended by the act of July 20, 1897, c. 68, 29 Stat. 492, and can not be maintained unless a case of "conviction of a capital crime," or a case involving "the construction or application of the constitution of the United States," or a case in which "the constitutionality of any law of the United States is drawn in question. "^^^ Assertions of errors of construction of federal statutes furnish no basis for jurisdiction on constitutional grounds under Act March 3, 1891, c. 517, § 5, 26 Stat. 827, as amended by Act Jan. 20, 1897, c. 68, 29 Stat. 492 (U. S. Comp. St. 1901, p. 549), of a writ of error from the federal supreme court to a district court. '^^'' (I) In Cases in Which the Jurisdiction of the Court Is in Issue. — See note 96. 420-26a. Act of March 10, 1908. — Bilik V. Strassheini, 212 U. S. 551, 53 L. Ed. 649, 29 S. Ct. 684; Ex parte Patrick, 212 U. S. 555, 53 L. Ed. 650, 29 L. Ed. 686. 422-38. By circuit court of appeals act. — For many years appellate jurisdiction did not exist in criminal cases in the fed- eral system. It has been granted by statute in certain cases; and criminal cases in which are involved a deprivation of constitutional rights, may be brought to the supreme court by writ of error under § 5 of the court of appeals act. Heike t'. United States, 217 U. S. 423, 428, 54 L. Ed. 821, 30 S. Ct. 539. At the time when the circuit court of appeals act was passed the only existing method by which a decision of the su- preme court could be obtained on a ques- tion of law arising in a criminal case not capital was upon certificate of difiference of opinion by the judges of the circuit court, under §§ 651 and 697 of the Rev. Stat. In capital cases, by the act of February 6, 1889 (25 Stat, at L. 656, chap. 113, § 6, U. S. Comp. Stat. 1901. p. 569), the defendant was gi^-en the right to ob- tain a review in federal supreme court by writ of error. The act of 1891 super- seded the existing statutory provisions as to a certificate of difference of opinion. United States z\ Rider, 163 U. S. 132, 41 L. Ed. 101, 16 S. Ct. 983; The Paquete Habana, 175 U. S. 677, 44 L. Ed. 320, 20 S. Ct. 290; United States z\ Dickinson, 213 U. S. 92. 53 L. Ed. 711. 717, 29 S. Ct. 485. 430-95a. When writ of error issues di- rectly.— Rakes z'. United States. 212 U. S. 55, 53 L. Ed. 401, 29 S. Ct. 244. 430-95b. Assertions of errors of con- struction. — Rakes t'. United States, 212 U. S. 55. 53 L. Ed. 401, 29 S. Ct. 244. 431-96. Where jurisdiction is in issue. — The jurisdiction of the federal supreme court of a direct appeal from a decree of a federal district court sitting as a court of admiralty, which dismissed a libel for contribution in favor of a joint wrongdoer who had paid a judgment re- covered against him in a suit at common law, founded on the wrong, to which the other wrongdoer was not made a party, can not be defeated on the theory that the dismissal, although expressed to be for want of jurisdiction, is really upon the merits, because payment of a judg- ment at common law is not a ground for contribution from a wrongdoer not a party to the suit. The Ira M. Hedges, 218 U. S. 264, 54 L. Ed. 1039, 31 S. Ct. 17, re- versing decree The Ira M. Hedges, 163 Fed. 587. "The first question is whether this court has jurisdiction of the appeal. It is said that the dismissal of the libel, al- though expressed to be for want of ju- risdiction, really is on the merits. * * * There sometimes is difficulty in distin- guishing between matters going to the jurisdiction and those determining the merits. * * * g^t perhaps it may be said that the two considerations coalesce here. The admiralty has a limited juris- diction. If there are no merits in the claim it is of a kind that the admiralty not only ought not to enforce but has no power to enforce. At all events, the form of the decree must be taken to express the meaning of the judge. If the decree v/as founded, as it purports to be. on a denial of jurisdiction in the court, this court has 46 \'ol. I. APPEAL AXD ERROR. 431-434 (3) In Cases of Conviction of Infamous Crimes. — A conviction in a federal district court of murder in the second degree, punishable only by imprisonment, is not reviewable in the supreme court under Act March 3, 1891, c. 517, § 5, 26 Stat. 827, as amended by Act Jan. 20, 1897, c. 68, 29 Stat. 492 (U. S. Comp. St. 1901, p. 549), as a case of "conviction of capital crime," although accused could have been convicted of a capital ofifense.^"'' (4) In Cases Involving the Construction or Application of the Federal Con- stitution. — The question of the accused's constitutional right to a speedy trial is not so involved as to give the federal supreme court jurisdiction of a v^^rit of error to a district court, where the latter court has permitted the entry of a nolle prosequi. 9"^ (5) In Cases Involving the Constitutionality of Any Law of the United States or the Validity or Construction of Treaties. — Constitutionality of Enabling Acts.— An order of a federal district court denying relief by habeas corpus to a person convicted in a United States court for the Indian Territory is not reviewable in the federal supreme court as involving the construction of the federal constitution, where the allegation in the petition that the accused was deprived of his liberty without due process of law was based entirely upon the supposed want of jurisdiction in the court where the conviction was had over an offense committed during the interim between the passage of the Oklahoma en- abling act (Act June 16, 1906, c. ZZii, 34 Stat. 267), and the admission of the state into the Union, which is a question involving the construction, and not the constitutionality, of the enabling act.^^^ Frivolous Appeals. — The constitutionality of the provision of Rev. St. U. S. § 5509 (U. S. Comp. St. 1901, § 3712), for such punishment of persons com- mitting any other felony or misdemeanor, when conspiring contrary' to the pre- ceding section, as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed is too well settled to permit the ques- tion as to such constitutionality to serve as the basis of a writ of error from the federal supreme court to a district court. ^^'^ 2. Over Circuit Courts — b. By Direct Appeal — (1) Under Circuit Court of Appeals Act — bb. In What Cases Allowable — aaa. In Cases in Which the Jurisdiction of the Court Is in Issue — aaaa. In General. — See note 11. jurisdiction of the appeal."' The Ira ^I. 431-98a. Constitutionality of enabling Hedges, 218 U. S. 261, 270, 54 L. Ed. 1039. act.— Childers z: McClaughry, 216 U. S. 31 S. Ct. 17. 139, 54 L. Ed. 420, 30 S. Ct. 370. Dismissal of information under revenue 431-98b. Frivolous appeals. — Rakes v. laws. — A judgment of a federal district United States. 212 U. S. 55, 53 L. Ed. 401. court, dismissing, for want of a lawful 29 S. Ct. 244. seizure in the district, an information for 434-11. Where jurisdiction is in issue, the forfeiture of certain jewels ^lleged to — Repeated decisions cf the supreme have been sm.uggled into the United court hold that the jurisdiction of a cir- States, does not present a question re- cuit or district court is in issiie in the specting the jurisdiction of that court as sense intended whenever the power of a federal court, which is essential to sus- the court to hear and determine the tain the direct writ of error from the su- cause, as defined or limited by the con- preme court of the United States stitution or statutes of the United States, authorized by Act March 3. 1891, c. 517, is in controversy. United States v. Con- § 5. 26 Stat. 827 (U. S. Comp. St. 1901, p. gress Constr. Co.. 222 U. S. 199, 56 L. 549), when the jurisdiction of the lower Ed. 163. 32 S. Ct. 44. court is in issue. United States v. Lar- Jurisdiction of admiralty court. — The kin, 208 U. S. 333. 52 L. Ed. 517, 28 S. Ct. jurisdiction of a federal district court of 417. the United States was in issue so as to 431-97a. Conviction of murder in second sustain a direct appeal to the federal su- degree. — Rakes :■. United States. 212 U. preme court, where the exceptions to a S. ."..■,. 53 L. Ed. 401, 20 S. Ct. 244. libel and intervening petition claiming 431-97b. Where nolle prosequi entered. salvage for services rendered to a vessel — Lewis f. United States. 216 U. S. 611, on fire in a dry dock challenged the ju- 54 L. Ed. 637, 30 S. Ct. 438. risdiction because, from the situation of 47 434 APPEAL AND ERROR. Vol. I. bbbb. Jurisdiction of Court as a Federal Court Must Be Involved. — In Gen- eral. — See note 13. the vessel, the place where the services were rendered, and their nature and char- acter, they afforded no basis for the ju- risdiction of the court as a court of admiralty of the United States, and this was the conception upon which that court acted in dismissing such libel and inter- vening petition. The Steamship Jeffer- son, 215 U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54. Action for damages for infringement of copyright. — A judgment of a federal cir- cuit court in favor of plaintiff in an ac- tion to recover damages for the infringe- ment of a copyrighted map, in which a prior judgment sustaining a demurrer to and dismissing the declaration on the ground that the copyright law gave no such action was reversed by the circuit court of appeals, to which the case was carried by the plaintiff, may be reviewed by the federal supreme court on a direct writ of error sued out by the defendant below under act March 3, 1891, c. 517, § 5, 26 Stat. 827 (U. S. Comp. St. 1901, p. 549), as presenting the question of the jurisdiction of the circuit court. Judg- ment. Walker v. Globe Newspaper Co. (1905), 140 F. 305, 72 C. C. A. 77, 2 L- R. A. (N. S.) 913, reversed. Globe News- naper Co. v. Walker, 210 U. S. 356, 52 L. Ed. T096, 28 S. Ct. 726. Validity of service on foreign corpora- tion. — A decree of a federal circuit court sustaining a plea to the jurisdiction may be brought to the federal supreme court, under the act of March 3, 1891 (26 Stat. at L. 827. chap. 517, U. S. Comp. St. 1901, p. 549), § 5, by direct appeal, where the question presented involves issues of fact as to whether the corporate defendant was doing business in the state, and whether the person attempted to be served as agent was such at that time. "It is well settled that a question of this character may be brought to this court by direct appeal under the circuit court of appeals act. Remington v. Central Pac. R. Co., 198 U. S. 95, 49 L. Ed. 959, 25 S. Ct. 577; Commercial Mut. Acci. Co. v. Davis, 213 U. S. 245, 256, 5,3 L. Ed. 782, 29 S. Ct. 445; Mechanical Appliance Co. v. Castleman. 215 U. S. 437, 54 L- Ed. 272, 30 S. Ct. 125." Herndon-Carter Co. v. Norris, etc., Co., 224 U. S. 496, 56 L. Ed. 857, 32 S. Ct. 550. Question of right to remove from state court. — The federal supreme court can not review, as presenting a question of jurisdiction, a decree of a federal circuit court dismissing a bill in aid of an attempt to remove condemnation proceedings from a state court, which decree was necessitated by the mandate of a circuit court of_ appeals, which court, being of the opinion that the condemnation pro- ceedings did not amount to a "suit" within the meaning of the removal statutes, had reversed an order of the circuit court, granting a temporary injunction restrain- ing the further prosecution of the pro- ceedings, and had remanded the cause with directions to proceed in accordance with its opinion, since there was an op- portunity afforded to obtain a review of the jurisdictional question, either upon a certificate of the circuit court of appeals, or on a writ of certiorari to that court. Metropolitan Water Co. v. Kaw Valley, etc.. District, 223 U. S. 519, 56 L. Ed. 533, 32 S. Ct. 246, following Brown v. Alton Water Co., 222 U. S. 325, 56 L. Ed. 221, 32 S. Ct. 156. 434-13. Jurisdiction as a federal court. — By the first clause of § 5 of the act of March 3, 1891, c. 517, 26 Stat. 826, 827, it is provided that appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to this court "in any case in which the juris- diction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision." The scope and meaning of this clause has not infrequently been the subject of consider- ation, and the prior authorities are re- viewed in Board v. Hammond Elevator Co., 198 U. S. 424, 49 L. Ed. 1111, 25 S- Ct. 740, where the court said: "It has been definitely settled that it [the section] must be limited to causes where the ju- risdiction of the federal court, as a federal court, is put in issue, and that questions of jurisdiction applicable to the state courts, as well as to the federal courts, are not within its scope." Bien v. Robin- son, 208 U. S. 423, 426, 52 L. Ed. 556, 28 S. Ct. 379; Abrams v. White, 212 U. S. 558, 53 L. Ed. 651, 29 S. Ct. 686. "The court has had frequent occa- sion to determine what is meant in the statute providing for review of cases in which the jurisdiction of the court is in issue, and it has been held that the statute means to give a review, not of the jurisdiction of the court upon general grounds of law or procedure, but of the jurisdiction of the court as a federal court." Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. Ed. 159, 24 S. Ct. 119; Bache v. Hunt, 193 U. S. 523, 48 L. Ed. 774, 24 S. Ct. 547; Fore River, etc., Co. V. Hagg, 219 U. S. 175, 178, 55 L. Ed. 163, 31 S. Ct. 185. For example, the jurisdiction of the court below as a federal court is not in- volved if it is plain from the record that the declaration did not state a cause of action because of the failure to allege the existence of a supposed condition prece- 48 Vol. I. APPEAL AND ERROR. 440 eeee. What Are Questions of Jurisdiction- General Rule. — See notes 27. 32. -bbbbb. Specific Applications of dent to recovery in a court of law. Dar- nell z: Illinois Cent. R. Co., 225 U. S. 243, 56 L. Ed. 1072, 32 S. Ct. 760. A writ of error from the federal su- preme court to a circuit court, authorized by Act March 3, 1891, c. 517, § 5, 30 Stat. 827 (U. S. Comp. St. 1901, p. 549), when the jurisdiction of the lower court is in issue, can not be maintained because of a ciuestion as to the jurisdiction of that court in respect to its general authority as a judicial tribunal, or its power as a court of equity. Bien v. Robinson, 208 U. S. 423, 52 L. Ed. 556, 28 S. Ct. 379. An appeal from the United States cir- cuit court to review a decree sustaining a demurrer to a bill which seeks the dissolu- tion of a corporation will be dismissed for want of jurisdiction. Hirsh v. Taylor, 225 U. S. 698, 56 L. Ed. 1263, 32 S. Ct. 841, citing Fore River, etc., Co. v. Hagg, 219 U. S. 175, 55 L. Ed. 163, 31 S. Ct. 185; Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. Ed. 159, 24 S. Ct. 119; Bache v. Hunt. 193 U. S. 523, 48 L. Ed. 774. 24 S. Ct. 547. The question whether a federal circuit court, in a suit in which the requisite di- versity of citizenship exists may enforce a cause of action based on a state statute alleged to be penal in its nature does not involve the jurisdiction of the court as a federal court, which alone can support a direct writ of error from the federal su- preme court, under Act March 3. 1891. c. 517, § 5, 26 Stat. 827 (U. S. Comp. St. 1901. p. 549), as a case in which the jurisdiction of the circuit court was in issue. Fore River, etc., Co. v. Hagg, 219 U. S. 175, 55 L. Ed.' 163. 31 S. Ct. 185. Jurisdiction over absent defendants. — The dismissal of a bill filed against non- resident aliens in a federal circuit court because complainant offered no proof to establish the fact that the property sought to be affected was within the district, as contemplated by the act of March 3, 1875 (18 Stat, at L. 472. chap. 137, U. S. Comp. Stat. 1901. p. 513). § 8. which authorized the exertion of jurisdiction as to the prop- erty of absent defendants, the bill's aver- ment in this regard having been traversed by plea, involves a question as to the power of the court as a federal court, reviewable by direct appeal to the su-^. preme court. Chase 7: Wetzlar. 225 U. S.' 79, 56 L. Ed. 990, 32 S. Ct. 659. Sufficiency of averments in declarations. — The dismissal by a federal circuit court of an action brought by a domestic cor- poration to recover from nonresident railway companies the excess over a rea- sonable freight rate exacted by them because the declaration contained no averment that the Interstate Commerce Commission had sustained plaintiff's right to reparation, does not present a question of the jurisdiction of that court as a fed- eral court, so as to sustain a direct appeal to the supreme court, since precisely the same question would have arisen for de- cision had the suit been pending in a state court of general authority, having juris- diction over the defendants. Darnell v. Illinois Cent. R. Co.. 225 U. S. 243. 56 L. Ed. 1072, 32 S. Ct. 760, citing Bache v. Hunt, 193 U. S. 523. 48 L. Ed. 774, 24 S. Ct. 547; Fore River, etc., Co. v. Hagg, 219 U. S. 175, 55 L. Ed. 163, 31 S. Ct. 185; United States z'. Congress Constr. Co.. 222 U. S. 199. 56 L. Ed. 163, 32 S. Ct. 44. Removal of causes. — The contention that a federal circuit court has no juris- diction of a suit founded on a decree of that court because the state court from which the suit was removed was without jurisdiction does not present a question of the jurisdiction of the circuit court as a federal court, so as to sustain a direct appeal to the supreme court, on the ground that the jurisdiction of the circuit court was in issue. Kansas, etc., R. Co. z: Zimmerman. 210 U. S. 336. 52 L. Ed. 1084, 28 S. Ct._ 7.30. Jurisdiction under patent right or copy- right laws. — This case is here upon writ of error to the circuit court of the United States for the district of ^Massachusetts, upon a question of its jurisdiction to en- tertain a suit to recover damages for an alleged infringement of the copyright of a map. The Revised Statutes of the United States. § 711, par. 5, give jurisdic- tion to the courts of the United States in cases arising ynder the patent right or copyright laws of the United States, ex- clusive of the courts of the several states. Thecase is one, therefore, which involves the jurisdiction of a federal court as such. Globe Newspaper Co. r. Walker, 210 U. S. 356. 360. 52 L. Ed. 1096. 28 S. Ct. 726. Decree of dismissal for want of jurisdic- tion — It is settled that, under the act of 1891. in order to entitle to a direct appeal from the decree of a district or circuit court dismissing a cause for want of juris- diction, the decree which is sought to be reviewed must have involved the jurisdic- tion of the court below as a federal court. The Steamship Jefferson, 215 U. S. 130, 137. 54 L. Ed. 125. 30 S. Ct. 54. Whether the bill presents a case for equitable relief or not does not involve a ciuestion of the jurisdiction of a federal circuit court as a federal court, so as to sustain a direct appeal to the .supreme court. Scullv V. Bird. 209 U. S. 481, 52 L. Ed. 899, 28 S. Ct. 597. 440-27. Sufficiency of service of process. — The contention that there was no valid 12 U S Enc— 4 49 441-442 APPEAL AND BRROR. Vol. I. Construction of Statute. — The ruling of the district court in a proceeding under Food and Drugs Act, § 10, imposing costs on the claimant, where the court has jurisdiction of the person as well as the res, may be considered as a question of construction of the statute, and not one of jurisdiction, reviewable by the supreme court.^^^ Venue of Suit. — The objection that an action brought by the United States against the principal and sureties on the bond of a public contractor, given con- formably to Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), amending Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), for his failure to pay certain designated subcontractors for labor and materials used in construction, should, under such statutes, when rightly construed, have been brought in the federal circuit court for the dis- trict wherein the contract was to be performed, instead of in the court for the district where the defendants reside, raises a question of the jurisdiction of the circuit court which will sustain a direct writ of error from the federal supreme court.-^'''' ffff. Necessity for Finality of Judgment. — See note 36. seivice of process upon a foreign corpo- rate defendant in a suit removed by it from a state to a federal court, because the corporation was not doing business in the state, and the person attempted to be served was not its agent at that time, in- volves the jurisdiction of the latter court as a federal court, so as to sustain a direct review "of the judgment of that court, under Act March 3, 1891, c. 517, § 5, 26 Stat. 827 (U. S. Comp. St. 1901, p. 549\ by writ of error from the federal supreme court. Mechanical Appliance Co. v. Castle- man, 215 U. S. 437, 54 L. Ed. 272, 30 S. Ct. 125. 441-32. Judgment of dismissal for want of jurisdiction, — Where the judgment of the circuit court that the declaration was "insufficient in law" was reversed by the circuit court of appeals and remanded for further proceedings according to law, and at the trial there was a verdict for plain- tifif but during the hearing defendant moved that the action be dismissed be- cause the court was without jurisdiction, it was held that from this decision an ap- peal could be taken, under § 5 of the act of 1891. Globe Newspaper Co. v. Walker, 210 U. S. 356, 52 L. Ed. 1096, 28 S. Ct. 726. But the supreme court refused to review as presenting a question of jurisdiction a decree of the circuit court dismissing a bill in aid of an attempt to remove con- demnation proceedings from the state court, which decree was necessitated by the_ mandate of a circuit court of appeals, which court being of the opinion that the condemnation proceedings did not amount to a "suit" within the meaning of the re- moval_ statutes, had reversed an order of the circuit court granting a temporary injunction restraining the further prose- cution of the proceedings and had re- manded the cause with directions to pro- ceed in accordance with its opinion, since there was an opportunity afforded to obtain a review of the jurisdiction of the question, either upon a certificate of the circuit court of appeals or a writ of cer- tiorari to that court. Metropolitan Water Co. V. Kaw Valley, etc., District, 223 U. S. 519. 56 L. Ed. 533, 32 S. Ct. 246. A direct appeal will not lie to the fed- eral supreme court under Act March 3, 1891, c. 517, 26 Stat. 826 (U. S. Comp. St. 1901, p. 488), to review, as presenting a question of jurisdiction, a decree of a cir- cuit court entered pursuant to the man- date of a circuit court of appeals, which, being of the opinion that the bill was within the ancillary jurisdiction of the circuit court, had reversed a decree of that court dismissing such bill for want of ju- risdiction, since there was an opportu- nity aflforded by the statute to obtain a re- view of the jurisdictional question in the supreme court, either upon a certificate of the circuit court of appeals, or on writ of certiorari to that court. Brown v. Alton Water Co., 222 U. S. 325, 56 L. Ed. 221, 32 S. Ct. 156. The jurisdiction of a federal circuit court as a federal court is so involved as to sustain a direct writ of error from the federal supreme court under Act March 3, 1891. c. 517. § 5, 26 Stat. 827 (U. S. Comp. St. 1901, p. 549), in a judgment dis- missing the suit on the ground of the in- validity of the attachment and garnish- ment of the property of the nonresident defendant, and upon the lack of a general appearance by such defendant. Davis v. Cleveland, etc., R. Co., 217 U. S. 157, 54 L. Ed. 708, 30 S. Ct. 463. 442-35a. Ruling under Food and Drugs Act.— Hipolite Egg Co. v. United States, 220 U. S. 45. 55 L. Ed. 364, 31 S. Ct. 364. 442-35b. United States v. Congress Constr. Co., 223 U. S. 199, 56 L. Ed. 163, 32 S. Ct. 44. 442-36. Necessity for finality of judg- ment. — "It may be regarded as the settled 50 Vol. I APPEAL AND ERROR. 443-450 hhhh. The Certificate — bbbbb. A'ecessiiy for. — See note 42. ddddd. Form and Requisites. — See note 49. eeeee. Presumptions on Appeal with Respect to Certificate. — Upon a direct appeal from the circuit court to the federal supreme court, the grounds on which the action was dismissed in the lower court will be presumed to be those recited in the certificate when there is an inconsistency between the court's opinion and the order of dismissal.^^^ jjjj. Double Appeals. — See note 64. If the question of the jurisdiction of the circuit court as a federal court is presented, a dismissal of a writ of error from the circuit court of appeals to the circuit court is no bar to a direct writ of error to the circuit court.^^* practice of this court that a case can not be brought here by piecemeal, and is only to be reviewed here after final judgment by direct appeal or writ of error in a lim- ited class of cases under § 5 of the Court of Appeals Act." Heike v. United States, 217 U. S. 423, 429, 54 L. Ed. 821, 30 S. Ct. 539, following McLish z: Roff, 141 U. S. 661, 35 L. Ed. 893. 443-42. Necessity for. — A decree show- ing dismissal for want of jurisdiction only ^ takes the place of the certificate required by the act of March 3, 1891, § 5, govern- ing a direct review in the federal supreme court of decrees . of the circuit court. Herndon-Carter Co. v. Norris, etc., Co., 224 U. S. 496, 56 L. Ed. 857, 32 S. Ct. 550. Ordinarily, a formal certificate is es- sential, and it must be made at the same term as that at which the judgment is rendered. But where the record shows that the only matter tried and decided in the circuit court was one of jurisdiction, and the petition upon which the writ of error was allowed asked only for a re- view of the judgment that the court had no jurisdiction of the action, the question of jurisdiction alone is suf^ciently certi- fied. United States v. Larkin. 208 U. S. 333, 338, 52 L. Ed. 517. 28 S. Ct. 417; Da- vis V. Cleveland, etc., R. Co., 217 U. S. 157, 54 L. Ed. 70S, 30 S. Ct. 463. The absence of a certificate of the ques- tion of jurisdiction is not fatal to the right to maintain a direct appeal from a fed- eral district court to the supreme court, where, upon the face of the record, aside from the recitals in the order made on the allowance of the appeal, it is apparent that the only question which was decided below was one of jurisdiction, and the de- cree appealed from on its face shows that the cause was dismissed for want of ju- risdiction. Decree, The Jefferson (D. C. 1908) 158 F. 358. reversed. The Steam- ship JefTerson, 215 U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54. The lack of a certificate of jurisdiction is not fatal to an appeal to the federal su- preme court from a decree of a circuit court which necessarily decided constitu- tional questions expressly raised in the bill. Railroad Comm. v. Louisville, etc, R. Co., 225 U. S. 272, 56 L. Ed. 1087, 32 S. Ct. 756. The issue of the jurisdiction of a fed- eral circuit court, whether certified or not. is open on an appeal to the federal supreme court from a decree which necessarily de- cided constitutional questions raised in the bill. Railroad Comm. v. Louisville, etc., R. Co.. 225 U. S. 272, 56 L. Ed. 1087, 32 S. Ct. 756, citing Chappell v. United States, 160 U. S. 499, 40 L. Ed. 510, 16 S. Ct. 397. 446-49. Sufficiency of certificate. — Formal defects in the certificate as to ju- risdiction filed by a federal circuit court under Act March 3, 1891, c. 517, § 5, 26 Stat. 827 (U. S. Com. St. 1901, p. 549). for the purpose of sustaining a writ of er- ror from the federal supreme court, are not material, where the record clearly shows that the only matter tried and de- cided in the circuit was one of jurisdic- tion. Davis T'. Cleveland, etc., R. Co.. 217 U. S. 157, 54 L. Ed. 70S, 30 S. Ct. 463. 448-56a. Presumption as to certificate. —Scully V. Bird, 209 U. S. 481, 52 L. Ed. 899. 28 S. Ct. 597. The ground of the action of a federal circuit court in dismissing a bill, as re- cited in the certificate presenting a ques- tion of jurisdiction, will be accepted by the supreme court on a direct appeal, where a dififerent course requires an as- sumption of inconsistency between the lower court's opinion and order of dis- missal and such certificate. Scully v. Bird, 209 U. S. 481, 52 L. Ed. 899, 28 S. Ct. 597. 450-64. Effect of prior appeal to circuit court of appeals. — Where a real, substan- tial constitutional question exists and a writ of error might have been sued out originally direct from the circuit court to the supreme court of the United States, but this was not done, and an appeal taken to a circuit court of appeals, the right of appeal to the supreme court is lost. Mac- Fadden ?'. United States, 213 U. S. 288, 53 L. Ed. 801, 29 S. Ct. 490, following Rob- inson r. Caldwell, 165 U. S. 359, 41 L. Ed. 745. 17 S. Ct. 343. 450-64a. Where jurisdiction of circuit court is in issue. — Davis f. Cleveland, etc., 51 451-452 APPEAL AND ERROR. Vol. I. kkkk. Hearing and Determination. — See note 70. 1111. Scope of Review. — See note 73. The federal supreme court, on appeal from the decision of a circuit court, may decide local questions only, and omit to decide the federal questions which gave the lower court jurisdiction, or may decide such questions adversely to the party claiming their benefit.'^sa fj^g gu. preme court has jurisdiction to declare the circuit court's denial of its own juris- diction correct, but when the decision of the circuit court is so plainly right that the question is frivolous, the appeal will be dismissed.'^ =^'' The objection that a federal circuit court to which a suit has been removed from a state court was without jurisdiction because the removal was improper is not open on a direct appeal to the supreme court, presenting the question of the jurisdiction of the circuit court, where the record and certificate show that the jurisdiction of that court was denied on the single ground that the state court where the proceedings started was without jurisdiction.^^^ R. Co., 217 U. S. 157, 54 L. Ed. 708, 30 S. Ct. 463, citing Excelsior, etc.. Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 46 L. Ed. ments with reference to certain specified articles, is a treaty within the meaning of the act of March 3. 1891, § 5, giving a direct appeal from a federal cir- cuit court to the supreme court in cases where the validity or construction of an}' treaty made under the authority of the United States is drawn in question. Alt- man & Co. V. United States, 224 U. S. 583, 56 L. Ed. 894, 32 S. Ct. 593. 469-51. A suit to enjoin a state official from enforcing the provisions of a regis- tration and inspection law is one in which the law of a state is claimed to be in con- travention of the constitution of the United States, within the meaning of the Act of March 3. 1891 (26 Stat, at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 5, so as to permit a direct appeal to the federal supreme court from a decree of a circuit court, sustaining a general de- murrer to the bill for want of equity, where such bill, although averring that complainant's product is not compre- hended by the statute, properly inter- preted, also alleges that the defendant, who was authorized to enforce the stat- ute, had construed it to be applicable to such product, and challenges the consti- tutionality of the statute as so construed. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct, 715, 471-59. Validity of tax on spirits. — The contention that due process of law is denied by a tax imposed under the au- thority of Code Pub. Gen. Laws Md. 1904, art. 81, §§ 214, 215, upon a custodian of distilled spirits, which rests upon the the- ory that the taxing power of the state is, by its constitution, confined exclusively to the levy of taxes in personam upon the owners of property, is too devoid of merit to present a substantial federal question which will sustain a direct writ of error from the federal supreme court to a cir- cuit court, where the highest state court has upheld the statute m controversy as an exercise of the taxing power of the state, and, in so doing, declared that it but reiterated and re-expounded the rul- ings by it previously made. Hannis Dis- tilling Co. 71. Baltimore, 216 U, S, 285, 54 L. Ed. 482. 30 S. Ct. 326. Delegation of legislative power. — The claim that power of legislation is uncon- stitutionall}' delegated to the state legis- latures by Act July 7, 1898, c. 576, § 2, 30 Stat, 717 (U. S. Comp, St. 1901, p. 3652), adopting such punishment for offenses committed in places under the exclusive jurisdiction and control of the United States as the laws of the state in which such places are situated "now provide" for a like ofifense, the punishment there- for not being otherwise provided for by any law of the United States, is too clearly unfounded to serve as the basis of a writ of error from a federal supreme court to a circuit court, Franklin v. United States, 216 U. S. 559, 51 E. Ed. 615, 30 S. Ct. 434, Statutes forfeiting land for nonpay- ment of taxes.— Any question respecting the invalidity of the provisions of the West Virginia constitution for the forfei- ture of lands to the state for five years' neglect to pay taxes is too clearly fore- closed by prior decisions of the federal supreme court to serve as the basis of a rr\t of error to a circuit court. •ay 57. 471-483 APPEAL AND ERROR. Vol. I. of appeal, under § 5 of the Court of Appeals Act, need not necessarily be in the pleading of the party invoking the jurisdiction of the court; it is sufficient if such right is duly claimed in the case because the statute is silent as to how this claim shall be made.*^""" 3. Ove:r Circuit Court of Appe^als — b. By Appeal or Writ of Error — (4) Decisions Reviezvable — ee. Cases Dependent upon Citizenship of Parties. See notes 26, 27, 30. A constitutional question first advanced on the trial Crozer, 217 U. S. 455, 54 L. Ed. 837, 30 S. Ct. 568. 471-60a. Claim need not be in plead- ings. — Memphis v. Cumberland, etc., Tel. Co., 218 U. S. 624, 54 L. Ed. 1185, 31 S. Ct. 115. A suit to enjoin the enforcement of a municipal ordinance regulating telephone rates is not one in which the constitution or law of a state is "claimed" to violate the federal constitution within the mean- ing of Act March 3, 1891, c. 517, § 5, 26 Stat. 827 (U. S. Comp. St. 1901, p. 549), governing direct review in the federal su- preme court of decrees of circuit or dis- trict courts, where the first and only reference to the federal constitution is in the opinion of the circuit judge, on final hearing, holding that the rates are con- fiscatory and destructive of the telephone company's rights under that constitution; the case as made by the bill being that the ordinance was passed without legislative authority, and its further allegations as to the confiscatory character of the or- dinance being referable only, if con- sistency with its other provisions is_ to be observed, to the state constitution, which would be violated if such allega- tions were true. Memphis v. Cumber- land, etc., Tel. Co., 218 U. S. 624, 54 L. Ed. 1185, 31 S. Ct. 115. 483-26. Cases dependent upon citizen- ship of parties. — Where the jurisdiction of the court below depended entirely upon the diverse citizenship of the parties, a writ of error to the United States circuit court of appeals will be dismissed for want of jurisdiction. Erie R. Co. v. Rus- sell, 220 U. S. 607, 55 L. Ed. 607, 31 S. Ct. 722; Tolliver v. Great Northern R. Co., 223 U. S. 711, 56 L. Ed. 624, 32 S. Ct. 520, citing Weir v. Rountree, 216 U. S. 607. 54 L. Ed. 635, 30 S Ct. 418; Van Sice V. Ibex Min. Co., 223 U. S. 712, 56 L. Ed. 625, 32 S. Ct. 520; Bagley v. General Fire, etc., Co., 212 U. S. 477, 53 L. Ed. 605, 29 S. Ct. 341; Macfadden v. United States, 213 U. S. 288, 293, 53 L. Ed. 801, 29 S. Ct. 490; Pope V. Louisville, etc., R. Co., 173 U. S. 573, 582, 43 L. Ed. 814, 19 S. Ct. 500. Section of the Act of March 3, 1891 (26 Stat, at L. 828. chap. 517, U. S. Comp. Stat. 1901, p. 550), declaring that "the judgments or decrees of the circuit court of appeals shall be final in all cases in which the jurisdiction is dependent en- tirely upon the opposite parties to a suit or controversy being * * * citizens of different states," refers to the jurisdic- tion of the federal court of first instance. Thus, it often becomes necessary to con- sider whether the jurisdiction of the cir- cuit court depended entirely upon di- versity of citizenship. If it did, the appeals must be dismissed. Shulthis t'. McDougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704. 'Tt is not enough that grounds of ju- risdiction other than diverse citizenship may be inferred argumentatively from the statements in the bill, for jurisdiction can not rest on any ground that is not af- firmatively and distinctly set forth. Hanford v. Davies 163 U. S. 273, 280. 41 L. Ed. 157, 16 S. Ct. 1051; Mountain View Min., etc., Co. v. McFadden, 180 U. S. 533, 45 L. Ed. 656, 21 S. Ct. 488; Bankers Mut.. etc., Co. V. Minneapolis, etc., R. Co.. 192 U. S. 371, 386, 48 L. Ed. 484, 24 S. Ct. 325." Shulthis v. McDougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704. A decree of a circuit court of appeals is none the less final under the act of March 3, 1891, § 6, upon the theory that the jurisdiction of the circuit court de- pended upon diverse citizenship alone, be- cause other grounds of jurisdiction may be inferred argumentatively from the statements in the bill. Shulthis v. Mc- Dougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704. Jurisdiction below depends entirely upon diverse citizenship within the mean- ing of .\ct March 3, 1891, c. 517, § 6, 26 Stat. 828 fU. S. Comp. St. 1901, p. 549). making judgments of the circuit courts of appeals final in such cases, where that is the only ground of jurisdiction disclosed by the complaint, although a federal question may have been raised* at the trial. Bagley 7'. General Fire, etc., Co., 212 U. S. 477, 53 L. Ed. 605, 29 S. Ct. 341. A decree of a circuit court of appeals affirming a decree of dismissal rendered hv a federal circuit court is not review- able in the federal supreme court where, if the allegations which set up diversity of citizenship were stricken from the bill, the circuit court would have had no ju- risdiction of the suit. Weir v. Rountree, 216 U. S. 607, 54 L. Ed. 635, 30 S. Ct. 418. Illustrative cases. — An appeal from the United States circuit court of appeals to review its decree affirming a decree of the ''ircuit court dismissing the bill in a suit ]iy a secured creditor to enforce his 58 \'ol. I. APPEAL AXD ERROR. 483-484 security as against tlie trustee in bank- ruptcy, will be dismissed for want of ju- risdiction because the jurisdiction of the circuit court depended entirely on the citizenship of the parties. Burgoyne v. AIcKillip, 220 U. S. 604, 55 L. Ed. 605, 31 S. Ct. 718, citing First Nat. Bank v. City Council, 215 U. S. 341, 348, 54 L. Ed. 223, 30 S. Ct. 152; Rogers v. Clark Iron Co., 217 U. S. 589, 54 L. Ed. 895, 30 S. Ct. 693. An appeal from the circuit court of ap- peals to review its decree, affirming a de- cree of the circuit court in a suit to quiet title, will be dismissed for want of ju- risdiction. Bryan z'. Bliss-Cook Oak Co., 223 U. S. 705, 56 L- Ed. 621. 32 S. Ct. 517, citing Louisville, etc., R. Co. v. Mottley, 211 U. S. 149, 53 L. Ed. 126, 29 S. Ct. 42; Macfadden v. United States, 213 U. S. 288. 53 L. Ed. 801, 29 S. Ct. 490; Bryan z'. Layman, 223 U. S. 706, 56 L. Ed. 621, 32 S. Ct. 517; Bryan v. Bagnell, 223 U. S. 706. 56 L. Ed. 622. 32 S. Ct. 517; Rider v. Bliss-Cook Oak Co., 223 U. S. 706, 56 L. Ed. 622, 32 S. Ct. 518; Moser v. Layman, 223 U. S. 707, 56 L. Ed. 622, 32 S. Ct. 518. An appeal from a circuit court of ap- peals to review a decree reversing a de- cree of the circuit court in favor of cornplainant, suing for infringement of a trademark, and for unfair competition, with directions to dismiss the bill, will be dismissed by the supreme court for want of jurisdiction. Scriven Co. v. Rice- Stix Dry Goods Co., 223 U. S. 708, 56 L- Ed. 622, 32 S. Ct. 518, citing Farrell z: O'Brien. 199 U. S. 89, 100, 50 L. Ed. 101, 25 S. Ct. 727; Kaufman & Sons Co. v. Smith, 216 U. S. 610, 54 L. Ed. 636, 30 S. Ct. 419, § 6 of Act of March 3. 1891 (26 Stat, at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549). And see Hutchinson, etc., Co. V.' Loewy, 217 U. S. 457, 54 L. Ed. 838. 30 S. Ct. 613. The decree of a federal circuit court, entered pursuant to the mandate of a cir- cuit court of appeals, upon a petition to enforce rights granted by a decree in in- tervention proceedings in a foreclosure suit, is not appealable to the federal su- preme court where the jurisdiction of the original foreclosure suit was based solely uoon diverse citizenship, although, when the case went back from the circuit court of appeals to the circuit court, the latter court authorized an amendment to the pe- tition, alleging that the decree ordered by the circuit court of appeals failed to give full faith and credit to the original decree in the intervention proceedings. Decree (1907), 152 F. 849, 81 C. C. A. 643. modified. St. Louis, etc., R. Co. v. Waba<^h R. Co.. 217 U. S. 247, 54 L. Ed. 752. 30 S. Ct.'olO. Effect of petition in intervention. — The finality of a decision of a circuit court of appeals under the act of March 3. 1891 ("26 Stat, at L. 828. chap. 517.. U. S. Comp. Stat. 1901. p. 550). § 6. on the theory that diverse citizenship was the sole ground of the jurisdiction of the circuit court, is not affected by a petition in intervention which was entertained and disposed of in virtue of the jurisdiction already invoked. "If the decree is final in respect of the original suit, it is equally so in respect of the intervention. Rouse v. Letcher, 156 U. S. 47, 31 L. Ed. 341, 15 S. Ct. 266; Gregory v. Van Ee, 160 U. S. 643, 40 L. Ed. 566, 16 S. Ct. 431; Pope v. Louisville, etc.. R. Co., 173 U. S. 573, 43 L. Ed. 814, 19 S. Ct. 500; St. Louis, etc., R. Co. ?7. Wa- bash R. Co., 217 U. S. 247, 54 L. Ed. 752, no S. Ct. 510." Shulthis V. McDougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704. Determination of question. — Whether the jurisdiction of the federal circuit court depended on diverse citizenship alone, within the meaning of the act of March :;. 1891, § 6, making the decrees of the circuit courts of appeals final in such cases, or was rested on other grounds as well, must be determined from the com- plainant's statement of his own cause of action as set forth in the bill, without regard to any questions that might have been brought into the suit by the answers or in the course of the subsequent pro- ceedings. Shulthis z'. McDougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704, cit- ing Colorado, etc., Min. Co. v. Turck, 150 U. S. 138, 37 L. Ed. 1030, 14 S. Ct. 35; Tennessee v. Union, etc.. Bank, 152 U. S. 454, 38 L. Ed. 511. 14 S. Ct. 654; Soen- cer z'. Duplan Silk Co.. 191 U. S. 526'. 48 L. Ed. 287, 24 S. Ct. 174; Devine v. Los Angeles, 202 U. S. 313, 319, 50 L. Ed. 1046, 26 S. Ct. 652. 483-27. Where jurisdiction rests on in- dependent grounds. — A decree of a fed- eral circuit court of appeals which, on the appeal authorized by the act of March 3, 1891 (26 Stat, at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488), § 7, as amended 'w the act of April 14, 1906 (34 Stat, at L. 116, chap. 1627), to review interlocu- tory decrees of a circuit court granting r'n injunction, reversed such a decree and directed both that the injunction be dis- solved and the bill dismissed, is a final decree, and appealable to the federal su- preme court under § 6 of the former act. where the jurisdiction of the circuit court was invoked not solely upon the groimd of diverse citizenship, but also upon the "■round that the suit was one arising un- f'er an act of congress, and the requisite Jurisdictional amount was involved. United States Fidelitv. etc., Co. v. Brav, r?25 U. S. 205, 56 L. Ed. 1055, 32 S. Ct. 620. 484-30. Cases arising: under federal con- stitution and laws. — The supreme court of tli^ LTnited States has jurisdiction of an appeal from the circuit court of appeals in cases where the jurisdiction of the circuit court is not dependent alone upon the diversity of citizenship, but there is 59 484 APPEAL AND ERROR. Vol. I. involved also the validity of a state law as being in conflict v^^ith the federal con- stitution or the construction of a federal statute. Louisville, etc., R. Co. v. Cook Brew. Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. If the case is one in which the jurisdic- tion of the court below was invoked not only upon the grounds of diverse citizen- ship, but upon grounds which involve al- leged infractions of the federal constitution or rights secured thereby, the case is not one made final in the circuit court of appeals by the act creating that couri, but may be appealed to the federal su- preme court if the amount in controversy exceeds $1,000. Railroad Comm. v. Worthington, 225 U. S. 101, 56 L. Ed. 1004, 32 S. Ct. 653, citing Spreckels Sugar Refin. Co. v. McClain, 192 U. S. 397, 48 L. Ed. 496, 24 S. Ct. 376; Macfadden v. United States, 213 U. S. 288, 53 L- Ed. 801, 29 S. Ct. 490; Standard Paint Co. v. Trinidad, etc., Mfg. Co., 220 U. S. 446, 55 L. Ed. 536, 31 S. Ct. 456. An appeal from a circuit court of ap- peals to the federal supreme court will not be dismissed on the ground that the jurisdiction of the circuit court was in- voked solely on the grounds of diverse citizenship, where grounds of suit and re- lief were also based upon federal statutes which were necessary elements of the decision of the circuit court of appeals. Judgment (1906), 143 F. 810, 74 C. C. A. 484, affirmed. Henningsen v. United States Fidelity, etc., Co., 208 U. S. 404, 53 L. Ed. 547, 28 S. Ct. 389. The jurisdiction of a federal circuit court of a suit brought by the receiver of a railway company appointed in another suit in that court, by which he seeks to enjoin the enforcement of an order of a state railroad ' commission, regulating freight rates, as interfering with inter- state commerce, as depriving the owners of the receivership estate of their prop- erty without due process of law and with- out compensation, and as denying them the equal protection of the laws, was not dependent entirely upon diverse citizen- ship, within the meaning of the act of March 3, 1891 (26 Stat, at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 550), mak- ing the decrees of the circuit courts of appeals final in such cases. Railroad Comm. V. Worthington, 225 U. S 101 56 L. Ed. 1004, 32 S. Ct. 653. Validity of state regulations of inter- state commerce.— The jurisdiction of a federal circuit court of a suit by an In- diana corporation to enjoin a common carrier incorporated under the laws of Kentucky from refusing to accept inter- state shipments of intoxicating liquors consigned to local-option points in Ken- tucky was not dependent upon diverse citizenship alone, so as to make the judg- ment of the circuit court of appeals final, where there was involved not only the validity of the Kentucky statute as a regulation of interstate commerce, but the question as to whether the sole remedy was not by an application to the interstate commerce commission. Louisville, etc., R. Co. f. Cook Brew. Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. Cases involving trade-mark laws. — The issue of unfair competition must be re- garded as open for consideration by the federal supreme court, on an appeal from the circuit court of appeals, where there was both diversity of citizenship and the assertion of a valid trade-mark to give ju- risdiction to the circuit court, in view of the statutory provision making the judg- ments of circuit courts of appeals final only where the jurisdiction below de- pended entirely upon diversity of citizen- ship, or where the case arose under the patent, revenue, criminal, or admiralty laws. (1911), Standard Paint Co. v. Trinidad, etc., Mfg. Co., 220 U. S. 446, 55 L. Ed. 536. 31 S. Ct. 456, affirming decree (1908), Trinidad Asphalt Mfg. Co. v. Standard Paint Co., 163 Fed. 977, 90 C. C. A. 195. A complaint invoking full faith and credit for judgments of another state does not present a case arising under the fed- eral constitution so as to permit a review in the federal supreme court under Act March 3, 1891, c. 517, § 6, 26 Stat. 828 (U. S. Comp. St. 1901, p. 549), of the judgment of a circuit court of appeals, where the defendant was not a party to the judg- ments, and, if bound by them, is so bound not by their own operation, but by an es- toppel arising out of the contract rela- tions between the parties and notice to defend the suits in which the judgments were rendered, the ground of the decision of the courts below being that there was no such estoppel, the decision turning wholly on construction of the contract as excluding liability over in the event that happened. Bagley v. General Fire, etc., Co., 212 U. S. 477, 53 L. Ed. 605, 29 S. Ct. 341. A question as to the full faith and credit to be given judgments of another state is not disclosed so as to permit a review in the federal supreme court, under Act March 3, 1891. c. 517, § 6. 26 Stat. 828 (U. S. Comp. St. 1901, p. 549), of a judgment of the circuit court of appeals, by a com- plaint in which such judgments seem to be referred to primarily, if not solely, as fixing the amount of the plaintiff's claim. Bagley r. General Fire, etc.. Co., 212 U. S. 477, 53 L. Ed. 605, 29 S. Ct. 341. Action based upon safety-appliance act. — An action to recover damages for per- sonal injuries, based upon the federal safety-appliance act, is one in which the judgment of a circuit court of appeals may 60 Vol. I. APPEAL AND ERROR. 484-488 of a cause cannot serve as the basis for a writ of error from the federal su- preme court to a circuit court of appeals." ^'^ gg. Cases Arisitig under the Criminal Lazvs. — x\ judgment of a circuit court of appeals in a case of which the district court had jurisdiction solely because arising under the criminal laws is bv the very terms of Act March 3, 1891, c. 517, § 6, 26 Stat. 828 (U. S. Comp. St. 1901, p. 549), "final," and is not review- able in the federal supreme court, although constitutional rights were invoked by the accused, and the case might therefore, under section 5 of that act, have been brought directly from the district court to the supreme court.^^^ hh. Cases Arising under the Trademark Lazvs. — A final decree of a circuit court of appeals in a suit to enjoin the infringement of a trademark registered under the act of February 20, 1905 {33 Stat, at L. 728, chap. 592, U. S. Comp. Stat. Supp. 1909, p. 1283), can not be reviewed by the federal supreme court by appeal, but only upon certiorari, in view of § 18 of that act, placing suits brought under its provisions within the scope of the act of ■March 3, 1891 (26 Stat, at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549), § 6, which makes decisions of the circuit courts of appeals final "in all cases under the patent laws, under the revenue laws, under the criminal laws, and in admiralty cases," with power in the supreme court to require any such case to be certified thereto for review and determination, with the same power and authority in the case as if it had been carried up by appeal or writ of error.^^'' be reviewed in the federal supreme court. Chicago Junction R. Co. v. King, 222 U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79. Suit must really and substantially in- volve a federal question. — A suit involving rights to land acquired under a law of the United States does not arise under that law for jurisdictional purposes unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such law, upon the determination of which the result de- pends. Shulthis v. McDougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704. "A suit to enforce a right which takes its origin in the laws of the ITniced States is not necessarily, or for that reason cilone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, con- struction, or efifect of such a law, upon the determination of which the result depends. This is especially so of a suit involving rights to land acquired under a law of the United States. If it were not, every suit to establish title to land in the central and western states would so arise, as all titles in those states are traceable back to those laws. Gold-Washing, etc., Co. z'. Keyes, 96 U. S. 199, 24 L. Ed. 656; Colo- rado, etc., Min. Co. v. Turck, 150 U. S. 138, 37 L. Ed. 1030, 14 S. Ct. 35; Blackburn i: Portland Gold iMin. Co., 175 U. S. 571, 44 L. Ed. 276, 20 S. Ct. 222; Florida, etc., R. Co. V. Bell. 176 U. S. 321. 44 L. Ed. 486, 20 S. Ct. 399; Shoshone Min. Co. v. Rutter, 177 U. S. 505, 44 L. Ed. 864, 20 S. Ct. 726; De Lamar's, etc., Min. Co. V. Nesbitt, 177 U. S. 523. 44 L. Ed. 872, 20 S. Ct. 715." Shulthis v. McDougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704. A suit to determine conflicting claims to a tract of land allotted to Creek In- dians can not be said to arise under the federal statutes governing such allotments, so as to permit an appeal to the federal supreme court under the act of March 3, ]891, § 6, from a decree of the circuit court of appeals, where the bill, although containing enough to indicate that those statutes constitute the source of the com- plainant's title or right, and that the de- fendants are in some way claiming the land, and particularly 4he oil and gas therein, adversely to him, makes no men- tion of those statutes or of any contro- versy respecting their validity, construc- tion,, or effect, and leaves the precise nature of the controA-ersy unstated and uncertain. Shulthis v. McDougal, 225 U. S. 561. 56 L. Ed. 1205, 32 S. Ct. 704. 484-31a. Question first advanced at trial. — Chicago Junction R. Co. v. King, 222 U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79, af- firming judgment 169 Fed. 372, 94 C. C. A. 652, and following Macfadden v. United States, 213 U. S. 288, 53 L. Ed. 801, 29 S- Ct. 490. 488-39a. Cases under the criminal laws. —Macfadden v. United States, 213 U. S. 288, 53 L. Ed. 801, 29 S. Ct. 490. 488-39b. Cases under trade-mark laws. — Hutchinson, etc.. Co. z\ Lnewy, 217 U. S. 457, 54 L. Ed. 838, 30 S. Ct. 613. A final decree of a circuit court of ap- peals in a suit to enjoin the infringement of a trade-mark registered under .\ct Feb. 20, 1905, c. 592, 33 Stat. 724 (U. S. Comp. St. Supp. 1909, p. 1275\ can be reviewed 61 489-492 APPEAL AND ERROR. Vol. I. (7) Reversal or Affirmance. — Plain error alone will justify the federal su- preme court in reversing a judgment of a circuit court of appeals in a personal- injury case, which is brought to the supreme court solely on the ground that the defendant corporation has a chapter from the United States.42^ d. By Certiorari — (1) In General. — See note 51. (3) In What Cases the Writ May Issue — aa. In General. — See note 55. In Criminal Cases. — Certiorari to review a judgment of the circuit court of appeals reversing a conviction below can not be granted by the federal su- preme court under the authority given by Act March 3, 1891, c. 517, § 6, 26 Stat. 828 (U. S. Comp. St. 1901, p. 489) to require the circuit courts of appeals, by certiorari or otherwise, to certify to the supreme court for review any case otherwise made final in those courts.^^'' Want of power in the federal supreme court under the act of March 3, 1891, § 6, to review by certiorari a judgment of the circuit court of appeals, reversing a conviction below, can not be helped out by the act of March 2, 1907 (34 Stat, at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1907, p. 209), providing for writs of error on behalf of the govern- ment in certain instances in criminal cases, which, being an innovation in crim- inal jurisdiction in certain classes of prosecutions, can not be extended beyond its term.5^'' Source of Power to Issue Certiorari. — The power of the supreme court to issue certiorari is not limited to the cases mentioned in the Circuit Courts of Appeals Act (Act March 3, 1891. c. 517, 26 Stat. 826 [U. S. Comp. Stat. 1901, p. 488]), but the writ may issue in the exercise of the power, under Rev. Stat. U. S., § 716 (U. S. Comp. Stat. 1901, p. 580), to issue all writs not specifically provided for by the statute, which may be necessary for the exercise of its jurisdiction, and agreeable to the usages and principles of law.^^*^ by the federal supreme court only upon certiorari in view of section 18 of that act placing suits brought under its pro- visions within the scope of Act March 3, 1891, c. 517, § 6, 26 Stat. 828 (U. S. Comp. St. 1901, p. 549), virhich makes decisions of the circuit court of appeals final "in all cases under patent laws, under the rev- enue laws, under the criminal laws, and in admiralty cases," with power in the su- preme court to require any such case to be certified thereto for review, in deter- mination, with the same power and au- thority in the case as if it had been car- ried up by appeal or writ of error. Hut- chinson, etc., Co. 7'. Loewv, 217 U. S. 457. 54 L. Ed. 838, 30 S. Ct. 613'. 489-42a. When personal injury case will be reversed.— Texas, etc., R. Co. v. How- ell, 224 U. S. 577, 56 L. Ed. 892, 32 S. Ct. 601. No reversible error is committed in leaving to the jury an action for personal injuries sustained by an employee from a falling timber, while he' was digging a post hole under a coal chute and other employees were tearing up the floor above him, with instructions that if the injury was due to the negligence of the master in sending men to work above the em- ployee, as a contributing cause, the mas- ter was liable, but not if the injury was due only to the negligence of fellow serv- ants in their way of performing their work. Texas, etc., R. Co. r. Howell, 224 U. S. 577, 56 L. Ed. 892, 32 S. Ct. 601. 490-51. Adequacy of other remedies. — No power rests in the supreme court to allow a certiorari under the act of 1891 in a case where there is authority to review the action of the lower .court by appeal or error. Title Guaranty, etc., Co. z\ Gen- eral Elect. Co., 222 U. S. 401, 403, 56 L. Ed. 248, 32 S. Ct. 168. 491-55. In what cases the writ may is- sue.— "While the power to grant this writ (certiorari) will be sparingly used, as has been frequently declared by this court, we should be slow to reach a conclusion which would deprive the court of the power to issue the writ in proper cases to review the action of the federal courts inferior in jurisdiction to this court." Mc- Clellan v. Garland. 217 U. S. 268, 279, 54 L. Ed. 762, 30 S. Ct. 501. See, also, post, CERTIORARI. 492-59a. In criminal cases. — United States V. Dickinson, 213 U. S. 92, 53 L. Ed. 711. 29 S. Ct. 485. 492-59b. Act of March 2, 1907.— United States f. Dickinson, 213 U. S. 92, 53 L. Ed. 711, 29 S. Ct. 485. 492-59C. Source of power to issue cer- tiorari.— AlcClellan z: Garland. 217 U. S. 2GS. 54 L. Ed. 762, 30 S. Ct. 501. The federal supreme court may issue certiorari to bring up for review the de- nial by a circuit court of appeals of an 62 Vol. I. APPEAL AXD ERROR. 492-497 Cases Involving Construction of Decrees of Lower Courts. — Certiorari to a federal circuit court of appeals should be granted by the supreme court in a case in which is involved the construction of a prior decree of a circuit court, affirmed by the supreme court, upon which depends the extent of the use by one railway company of the track, right of way, and terminal facilities of another, as well as the rights of access by the one company to industries es.tablished along the line of the other. ^^^^ Determination of Importance of Case. — A writ of certiorari to a circuit court of appeals, granted on the application of the United States, upon the ground that the decision below involved a principle of far-reaching importance, will be dismissed where the federal supreme court is convinced, after final hear- ing, that the action of the court below did not deal with that principle."^^ (5) Reviczv of Interlocutory Orders. — See note 74. The power of the federal supreme court to require a circuit court of appeals by certiorari to send up for re- view cases pending before the latter court extends to a case pending in that court on an appeal from a decree of a circuit court entered pursuant to the mandate of the circuit court of appeals on a prior appeal."^^ Hearing and Determination. — The federal supreme court will determine a cause brought before it by certiorari to a circuit court of appeals upon the record made in that court, and certified to the supreme court."^^ (9) Scope of Refiezi'. — The scope of review on certiorari will not be broadened to include technical questions tending to delay the final ending of an action, the merits of which are with the respondents.^^* It is undoubted that by the operation of a writ of certiorari, granted in accordance with the pro- visions of the Judiciary Act of 1891, the entire record is before the federal supreme court with power to decide the case as it is presented to the circuit court of appeals, by reason of a writ of error issued out of that court. ^^"^ In Patent Cases. — Defenses of anticipation and want of infringement will not ordinarily be passed upon by the federal supreme court on certiorari to a original application for mandamus to com- statutes, reversed a decree of a circuit pel the judge of a circuit court to proceed court granting a temporary injunction on with and determine an action pending be- a bill in aid of an attempt to remove such fore it, since the power of the supreme proceedings from a state court, and re- court to issue certiorari is not limited to manded the cause with directions to pro- the cases mentioned in the circuit courts ceed in accordance with its opinion, must of appeals act of March 3. 1891 (26 Stat. be treated, for the purpose of testing the at L. 826, chap. 517, U. S. Comp. Stat. 1901, right to a review by certiorari, as the p. 488), but the writ may issue in the exer- equivalent of a direction to enter a final cise of the power, under U. S. Rev. Stat., decree against the complainant for want § 716, U. S. Comp. Stat. 1901, p. 580, to is- of jurisdiction. Metropolitan Water Co. sue all writs not specifically provided for v. Kaw Valley, etc., District. 223 U. S. 519, by the statute, which may be necessary 56 L. Ed. 533. 32 S. Ct. 246. for the exercise of its jurisdiction, and 496-78a. Cases pending on an appeal. agreeable to the usages and prmciples of _st Louis etc . R. Co z' Wabash R. Co., law. McClellan r. Carland, 217 U. S. 268, 217 ij. S. 247, 54 L. Ed. 752. 30 S. Ct. 510, 54 L. Ed 762 30 S. Ct. 501. modifving 152 Fed. 849. 81 C. C. A. 643. 492-59d. Construction of decree of „n^ '-« tt -• j j * -^: *;«^ i„„,„, ,. e<- T ^ T> n \TkT„ 496-79a. Hearmg and determmation. — lower court. — St. Louis, etc.. R. Co. 7'. Wa- at r-i n n 1 ] oi~ t- c .tco -< t bash R. Co., 217 U. S. 247, 54 L. Ed. 752, l^f}'o''^'% S.^"'""?- ~'' ^^ ^^ ~^^- '^ ^■ 30S. Ct. 510. Ed. .62, .30 S. Ct. dOI. 492-59e. Determination of importance 497-88a. Scope of review.— Judgment of case.— United States r. Rimer. 220 U. C^- C A. 1908) Thomas f. Green County, S. 547, 55 L. Ed. 578, 31 S. Ct. 596. 159 F. 339, affirmed. Green County v. 495-74. Review of interlocutory orders. Thomas, 211 U. S. 598, 53 L. Ed. 343, 29 — A judgment of a circuic court of appeals S. Ct. 168. which, being of the opinion that condem- 497-88b. Entire record is before court. nation proceedings did not amount to a — Lutclier. etc.. Lumber Co. z\ Knight, 217 "suit"' within the meaning of the removal U. S. 257, 267, 54 L. Ed. 757, 30 S. Ct. 505. 63 497-499 APPEAL AND ERROR. Vol. I. circuit court of appeals, to review an order granting a preliminary injunction in a patent suit.^^*^ An objection to the sufficiency of an indictment will not be consid- ered by the federal supreme court on certiorari, although the grounds of the demurrer and the general language of the exceptions taken on the trial are broad enough to embrace such objection, where the conduct of counsel for the accused in the courts below is wholly inconsistent with any intention to rely upon such objection, and the point was not referred to in the petition for writ of certiorari, or in the brief submitted in support of that petition-S^** Review of Questions of Fact. — Whether or not the inventions covered by the claims of the patent in suit were exhibited in an expired foreign patent will not be considered by the federal supreme court on certiorari to a circuit court of appeals, to review an order granting a preliminary injunction, where the question is largely one of fact, and pertains rather to the evidence than to a construction of the patents.^^® (9^) Affirmance. — Where the circuit court of appeals reverses a judgment of the trial court and the supreme court on certiorari reverses the circuit court of appeals, if no error of law has been committed by the trial court, its judg- ment will be affirmed. ^^^ (10) Rendering and Ordering Final Judgment. — Upon a writ of certiorari to review a judgment of the circuit court of appeals the supreme court has the entire record before it, with the power to review the action of that court as well ■as direct such a disposition of the case as that court might have done when hearing the writ of error sued out for the review of the action of the circuit court. Accordingly, if the judgment of the circuit court of appeals is reversed and the supreme court, upon looking further into the record from the trial court, finds that no error w^as committed by that court, the judgment of the latter court will be affirmed. ^^^ 4. Over Courts oe the District of Columbia. — See post, "Weight and Suf- ficiency of Evidence," IV, E, 7. a. Right to Appellate Review. — The Judicial Code of March 3, 1911, ch. 231, 36 Stat, at L. 1087, made substantial changes in the right of appeal to the federal supreme court from the court of appeals of the District of Columbia.^'''* By § 250 of the New Judicial Code (act of March 3, 1911, ch. 231, 36 Stat, at L. 1087, U. S. Comp. Stat. Supp. 1911, p. 128), any final judgment of the court of appeals of the District of Columbia may be re-examined in cases in which the construction of any law of the United States is drawn in question by the 497-88C. In patent cases. — Leeds, etc., action against a carrier to recover dam- Co. V. Victor, etc., Mach. Co., 213 U. S. ages for personal injuries alleged to have 301, 53 L. Ed. 805, 29 S. Ct. 495. been cnused by its negligence, furnishes 497-88d. Sufficiency of indictment. — no reason for disturbing the judgment of Judgment CC. C. A. 1907) 155 F. 945, 84 C. the trial court, v^rhere no error of law ap- C. A. 93, affirmed. Great Northern R. Co. pears to have been committed in that T. United States, 208 U. S. 452, 52 L. Ed. court to the prejudice of the carrier. Delk 567, 28 S. Ct. 313. v. St. Louis, etc., R. Co..- 220 U. S. 580, 55 497-88e. Questions of fact.— Leeds, etc., U Ed. 590, 31 S. Ct. 617. Co. V. Victor, etc., Mach. Co., 213 U. S. 497-89a. Rendering and ordering final 301, 53 L. Ed. 805, 29 S. Ct. 495. judgment.— Delk r. St. Louis, etc., R. Co., 497-88f. Affirmance.— Delk v. St. Louis, 220 U. S. 580, 55 L. Ed. 590, 31 S. Ct. 617, etc.. R. Co., 220 U. S. 580, 55 L. Ed. 590, reversing judgment (1908) St. Louis & S. 31 S. Ct. 617. F. R. Co. V. Delk, 158 F. 931, 86 C. C. A. A reversal on certiorari for error in con- ^5, 14 A. & E. Cas. 233. struing the safety appliance act of March 499-97a. Code of March 3, 1911.— See 2, 1893, of the judgment of a circuit court Washington Home v. American, etc., of appeals reversing a judgment of a cir- Trust Co., 224 U. S. 486, 56 L. Ed. 854, 32 cuit court in favor of an employee in an S. Ct. 554. 64 Vol. I. APPEAL AND ERROR. 499-506 defendant,^"'' and in cases involving the constitutionality of any law of the United States.^''^ b. What Lazu Governs — (1) In General. — See note 98. d. Decisions Reviezvable — (2) Necessity for Finality of Judgments and De- crees. — See note 22. (3) Stimmary and Special Proceedings. — In proceedings to condemn land under the acts of Congress relating to the elimination of grade crossings and providing for a union station (31 Stat. 767, c. 353, 31 Stat. 775, c. 354, and 32 Stat. 909, c. 856), the supreme court has power to review the final order of the court of appeals of the District of Columbia confirming the award of the appraisers. 26a 5. Over Court of Claims — a. In General. — The general rules governing the subject of prosecuting error or taking appeals from final judgments or decrees is applicable to judgments or decrees of the court of claims. ^^'^ 499-97b. 3250 of New Judicial Code.— American, etc.. Trust Co. z\ Commission- ers, 224 U. S. 491, 50 L. Ed. 856, 32 S. Ct. 553. Congressional enactments having gen- eral application throughout the United States, and not the purely local laws of the District of Columbia, are what are meant by the provision of the Federal Ju- dicial Code, § 250, for the appellate review in the federal supreme court of judgments and decrees of the court of appeals of the district in cases in which the construction of "any law of the United States" is drawn in question by the defendant. American, etc.. Trust Co. z'. Commissioners, 224 U. S. 491, 56 L. Ed. 856, 32 S. Ct. 553. 499-970. Constitutionality of any law of the United States. — American, etc.. Trust Co. V. Commissioners, 224 U. S. 491, 56 L. Ed. 856, 32 S. Ct. 553. 499-98. Law regulating appeals from circuit court governs. — The act of Febru- ary 9, 1893, ch. 74, § 8, 27 Stat, at Large, 436, concerning writs of error and appeals from the court of appeals of the District of Columbia, provides that they shall be allowed in the "same manner and under the same regulations as heretofore pro- vided for in cases of writs of error on judg- ments or appeals from decrees rendered in the supreme court of the District of Co- lumbia." The procedure referred to is that found in § 705, Rev. Stat., which pro- vides that such writs or appeals shall be allowed in the "same manner and under the same regulations as are provided in cases of writs of error on judgments or appeals from decrees rendered in a circuit court." Columbia Heights Realty Co. f. Rudolph, 217 U. S. 547,"551, 54 L. Ed. 877, 30 S. Ct. 581. 504-22. Decision of commissioner of pat- ents. — A decision of the court of appeals of the District of Columbia on an appeal from a decision of the commissioner of patents in proceedings under application made pursuant to Act Feb. 20, 1905, c. 592, 12 U S Enc— 5 65 § 1, 33 Stat. 724 (U. S. Comp. St. Supp. 1907, p. 1008), for the registration of a trade-mark, which affirms the latter's de- cision, and directs the clerk to certify its opinion to the commissioner, according to law, is not final for the purpose of an ap- peal to, or writ of error from, the federal supreme court, since the proceedings un- der that act are governed by the same rules of practice and procedure as in pat- ent cases. Atkins & Co. v. Moore, 212 U. S. 285, 53 L. Ed. 515, 29 S. Ct. 390. A judgment of the court of appeals of the District of Columbia, affirming the de- cision of the commissioner of patents in an interference proceeding, and directing that its own decision be certified to the commissioner, as required by law, is not final for the purpose of a writ of error from the federal supreme court. John- son V. Mueser, 212 U. S. 283, 53 L. Ed. 514, 29 S. Ct. 390. A decree of the court of appeals of the District of Columbia on an appeal from the commissioner of patents, which af- firms the latter's decision and directs the clerk of the court to "certify this opinion and proceedings in this court in the premises to the commissioner of patents, according to law," is not "final" within the meaning of Act February 9, 1893 (27 Stat. 436, c. 74, U. S. Comp. St. 1901, p. 573), § 8, defining the appellate jurisdic- tion of the federal supreme court, since under Rev. St. U. S., §§ 4914, 4915 (U. S. Comp. St. 1901, p. 3392). decisions on such appeals do not preclude any person in- terested from contesting the validity of the patent in court, and a remedy by bill in equity is given where a patent is re- fused. Frasch r. Moore, 211 U. S. 1. 53 L. Ed. 65, 29 S. Ct. 6. 504-26a. Summary and special proceed- ings. — Winslow r. Baltimore, etc.. R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. 506-34a. General rules applicable. — United States :: Ellicntt. 223 U. S. 524, 56 L. Ed. 535, 32 S. Ct. 334. 511-522 APPEAL AND ERROR. Vol. I. f. Decisions Reviewable — (3) Jurisdiction as Dependent upon Nature and Form of Judgment — bb. Decision Must Be Judicial in Its Nature. — See note 57. h. Review of Findings on Questions of Fact—{\) In General— See note 87. j. Transfer of Cause — (4) The Record. — See note 11. The record on cross-appeals from an award by the Court of Claims under a contract for a public work will be remanded for correction, where the court failed to make an explicit finding as to the knowledge and good faith of the government inspector whose action is alleged to have impeded greatly the progress of the work, to the claimant's injury, or to find as a fact whether or not complaint of the inspector's action was made by the claimant to a superior officer, and, if made, as to the date of such complaint, and the action taken upon it.^^^ 6. Over Territorial Courts — a. In General. — See note 29. 511-57. Decision must be judicial in its nature. — The pendency in the courts of the District of Columbia of suits to enjoin the secretary of the interior from carrying into effect certain congressional legisla- tion when congress attempted, by the act of March 1, 1907, to confer jurisdiction upon the court of claims, and, by appeal, upon the federal supreme court, of suits against the United States, to be brought by the petitioners in the then pending litigation, to determine the validity of such legislation, does not remove the objection that action not judicial in its nature within the meaning of the federal constitution was thereby required of the supreme court. Muskrat v. United States, 219 U. S. 346, 55 L. Ed. 246, 31 S. Ct. 250. Congress could not, as was attempted by the act of March 1, 1907 (34 Stat, at L. 1015, chap. 2285), confer jurisdiction upon the court of claims, and, by appeal, upon the federal supreme court, of suits against the United States, to be brought by cer- tain named Cherokee Indians, for them- selves and all others similarly situated, to determine the A^alidity of acts of congress passed since the act of July 1, 1902 (32 Stat, at L. 716, chap. 1375), so far as such acts purport to increase or extend the restrictions upon alienation, encumbrance, or the right to lease the allotments of lands of Cherokee citizens, or to increase the number of persons entitled to share in the final distribution of the Cherokee lands and funds, since this is nothing more than an attempt to provide for a final judicial determination in the supreme court of the constitutional validity of congressional legislation, without a "case" or "contro- versy" to which, under the federal con- stitution, the judicial power alone extends. Muskrat v. United States, 219 U. S. 346, 55 L. Ed. 246, 31 S. Ct. 250. 516-87. Review of findings on questions of fact. — The refusal of the court of claims to make an allowance for the transporta- tion from the Philippine Islands to Spain, under a contract with the United States, of certain Spanish prisoners of war, cer- tified by an American consul to have been landed in a Spanish port, will not be dis- turbed on appeal where the method pre- scribed by tile contract for determining the initial fact that such persons had been taken on board in the Philippine Islands had not been pursued, and the evidence did not establish to the satisfaction of that court that such persons were entitled to transportation under the contract. Judg- ment (1907), J. M. Ceballos v. United Stales, 42 Ct. CI. 318, reversed. Ceballos & Co. V. United States, 214 U. S. 47, 53 L. Ed. 904, 29 S. Ct. 583. A finding of the court of claims upon the question of the compensation to be paid by the United States for its use of a patent, to which finding there was no ob- jection taken nor exception reserved, is conclusive on the federal supreme court, being in the nature of a special verdict of the jury. United States v. Societe Anonyme, etc., Cail, 224 U. S. 309, 56 L. Ed. 778, 32 S. Ct. 479. 520-11. Record. — A case will not be re- manded to the court of claims on a mo- tion which in effect calls for the certifica- tion of the evidence and not the court's conclusions from the evidence, since this would contravene a rule of the federal su- preme court which requires the record on an appeal from the court of claims to con- tain a finding "of the facts in the case established by the evidence in the nature of a special verdict, but not the evidence establishing it." United States v. Societe Anonyme, ^etc. Cail. 224 U. S. 309, 56 L. Ed. 778, 32 S. Ct. 479. 520-lla. Record on cross appeals. — Ripley v. United States, 220 U. S. 491, 55 L. Ed. 557, 31 S. Ct. 478, remaining record for additional findings in 45 Ct. CI. 621. 522-29. As the power of the federal su- preme court to review depends upon the acts of congress, which it is bej^ond the authority of a territory by forms of legal procedure to modif}' or change, it results that whatever may be the forms of proce- dure prevailing in the territory for the review of judgments or decrees, nothing in the territorial laws or procedure can 66 A'ol. I. APPEAL AND ERROR. 523-528 b. Under Circuit Court of Appeals Act. — See note 31. c. Over the Indian Territory. — See note 46. d. Over Territory of Hazcaii. — See notes 54, 37, 58. have the effect of conferring upon the supreme court appellate powers not given bv congress. Cotton v. Hawaii, 211 U. S. 1G2, 170, 53 L. Ed. 131. 29 S. Ct. 85. 523-31. Under circuit court of appeals act. — The judgment of a territorial su- preme court for the recovery of fees by a de jure officer from a de facto one is not reviewable in the federal supreme court, as involving the validity of an au- thority exercised under the United States in the passage of the territorial legisla- tion from which it was contended that the right to the fees was derived, where the decision was rested in fact upon the con- struction of the statute, and not upon the want of power of the territorial legisla- ture to pass them. Albright z:. Sandoval, No. 2. 216 U. S. 342, 54 L. Ed. 509, 30 S. Ct. 321. 526-46. Act of March 1, 1895.— The ab- sence of any specific reference to the fed- eral sypreme court in the provisions of Act March 1. 1895, c. 145. § 11, 28 Stat. 698, and Act March 3, 1905, c. 1479. § 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1907, p. 208), for an appellate review in the cir- cuit court of appeals for the eighth circuit of the final decisions of the court of ap- peals in the Indian Territory in the same manner as decisions of the circuit courts, precludes any further review in the su- preme court by appeal from or writ of error to the circuit court of appeals. Laurel Oil. etc.. Co. v. Morrison, 212 U. S. 291, 53 L. Ed. 517, 29 S. Ct. 394. Full appellate jurisdiction over the final decisions of the court of appeals in the Indian Territory was conferred upon the circuit court of appeals for the eighth cir- cuit by the provisions of Act March 1, 1895, c. 145, § 11, 28 Stat. 698. that "writs of errors and appeals from the final de- cision of said appellate court shall be allowed and may be taken to the circuit court of appeals for the eighth judicial circuit in the same manner and under the same regulations as appeals are taken from the circuit courts," and such juris- diction is not in any way measured or limited by the jurisdiction on appeal from or error to the district or circuit courts. Laurel Oil, etc., Co. v. Morrison, 212 U. S. 291, 53 L. Ed. 517, 29 S. Ct. 394. 527-54. Source of jurisdiction. — "Our authority to review the judgments of the supreme court of the Territory of Hawaii is derived from the act of April 30. 1900, c. 339. § 86, 31 Stat. 141, 158, and the amendatory act of March 3, 1905, c. 1465, § .3, 33 Stat. 1035. In the first act juris- diction is conferred over judgments or decrees of the supreme court of the Ter- ritory only in cases like unto those where we would be empowered to review the judgments or decrees of the several states, conferred by § 709, Rev. Stat. By the amendatory act our jurisdiction was extended so as to embrace, in addition, all cases, irrespective of the nature of the questions presented, where the amount in- volved, exclusive of costs, exceeds the sum or value of five thousand dollars. In other words, whilst the first act conferred the power only in cases where it would exist if the decree or judgment had been rendered in a state court, the second, adopting the principle and necessarily therefore carrj'ing with it the rules gen- erally prevailing as to the review of judg- ments or decrees of the supreme courts of the incorporated territories of the United States, gives an additional right to review, depending solelj^ upon the amount iuA'olved." Cotton v. Hawaii, 211 U. S. 162, 169, 53 L. Ed. 131, 29 S. Ct. 85. 527-57. Amount in controversy. — A writ of error from the supreme court of the United States to the Hawaiian supreme court, to review v. judgment sustaining an assessment for taxation, will not lie under Act March 3, 1905, c. 1465, § 3, 33 Stat. 1035, where the amount of the tax as- sessed is less than the jurisdictional amount prescribed by that section. Hono- lulu, etc., Land Co. v. Wilder, 211 U. S. 144, 53 L. Ed. 124, 29 S. Ct. 46. A writ of error to review a judgment of the supreme court of Hawaii in eject- ment will not be dismissed because the value of the land is less than $5,000, where the contrary sufficiently appears by affi- davits in the record and in the federal su- preme court. Spreckels v. Brown, 212 U. S. 208, 53 L. Ed. 476, 29 S. Ct. 256. Owners of real property are not es- topped by their tax returns under oath, valuing it at less than $5,000, from assert- ing that such property has that value, to sustain the jurisdiction of the federal su- preme court of a writ of error to review a judgment of the Hawaiian supreme court in ejectment. Spreckels v. Brown, 212 U. S. 208, 53 L. Ed. 476, 29 S. Ct. 256. 528-58. Retrospective operation of stat- ute. — A judgment of the Hawaiian su- preme court did not become final before the enactment of Act March 3, 1905, c. ]465, 33 Stat. 1035, and hence not review- able in the federal supreme court under that act, where, although tlie opinion was filed prior to that enactment, a petition for rehearing was duly filed and enter- tained by the court, and was not denied 67 529-535 APPEAL AND ERROR. Vol. I. f. Over Particular Proceedings — (1) /// Criminal Cases. — See note 67. h. Assignment of Errors. — The failure of the record to show that any federal question was raised or suggested before the assignment of error in the federal supreme court precludes the maintenance of a writ of error from that court under Act April 30, 1900, c. 339, § 86, 31 Stat. 141, to review a judgment of the Hawaiian Supreme Court.^^'' i. Scope and Extent of Revieiv — (1) In General. — The entire case is open for the consideration of the federal supreme court on a writ of error to a ter- ritorial supreme court, to review a judgment of that court, which, on a second writ of error, affirmed a judgment below, entered pursuant to its mandate, issued on the first writ of error.^'^a Errors assigned in the supreme court of a territory, but passed by it without decision, are open for review in the federal supreme court on writ of error, if that court finds that the former court erred in reversing the judgment of the trial court upon the single error considered. ^^'^ (2) Necessity for Finality of Decision. — See note 98. until after the passage of such statute. Bierce v. Waterhouse, 219 U. S. 320, 55 L- Ed. 237, 31 S. Ct. 241. Where the merits of the case had been finally determined by the supreme court of Hawaii before passage of the act ex- tending the jurisdiction here to review cases from that court involving over $5,000, no jurisdiction. Notley v. Brown, 212 U. S. 570, 53 L. Ed. 655, 29 S. Ct. 692. Jurisdiction of a writ of error directed, on its face, to a supposed judgment of the supreme court of the territory of Hawaii, disposing of exceptions on nonfederal grounds prior to Act March 3, 1905, c. 1465, 33 Stat. 1035, enlarging the appellate jurisdiction of the federal supreme court over the territorial court, can not be taken by treating the writ as addressed to a later judgment of that court, quash- ing a writ of error to the trial court, which judgment was not formally entered until long after the writ of error from the fed- eral supreme court was sued out, where to regard the entry as relating back to the time when the opinion of the court was announced would, if the same rule be ap- plied to the nunc pro tunc entry of the judgment of the trial court, require an af- firmance of the judgment of the territorial supreme court on the ground that the writ of error to the trial court was not sued out in time. Notley v. Brown, 208 U. S. 429, 52 L. Ed. 559, 28 S. Ct. 385. A writ of error directed, on its face, to the supposed judgment of the supreme court of the tenitory of Hawaii, disposing of exceptions on nonfederal grounds, prior to Act March 3, 1905, c. 1465, 33 Stat. 1035, enlarging the appellate juris- diction of the federal supreme court over the territorial court, can not be sustained on the theory that a final judgment in the case was not rendered until after the pas- sage of that act, when judgment on the verdict was entered in the trial court in connection with a nunc pro tunc entry, since such judgment must necessarily have been entered after the judgment which the writ seeks to review. Notlev y. Brown, 208 U. S. 429, 52 L. Ed. 559, 28 S. Ct. 385. 529-67. In criminal cases. — "We have no authority to review the action of the su- preme court of a territory of the United States in a criminal case like this [em- bezzlement]. (Amado v. United States, 195 U. S. 172, 49 L. Ed. 145.)" Kent v. Porto Rico, 207 U. S. 113, 52 L. Ed. 127, 28 S. Ct. 55. 534-95a. Assignment of errors. — Hono- lulu, etc.. Land Co. v. Wilder, 211 U. S. 144, 53 L. Ed. 124, 29 S. Ct. 46. 534-96a. Scope of review. — Bierce v. Waterhouse, 219 U. S. 320, 55 L. Ed. 237, 31 S. Ct. 241. 534-96b. Errors passed by without de- cision. — Bierce %'. Waterhouse, 219 U. S. 320, 55 L. Ed. 237, 31 S. Ct. 241. 535-98. Finality of decision. — It is ele- mentary, however, that the power to re- view judgments of the supreme court of Hawaii under § 709, Rev. Stat., and under the laws governing the right to review the judgments or decrees of the supreme courts of the incorporated territories gen- erally, extends only to final judgments or decrees. Cotton v. Hawaii, 211 U. S. 162, 170, 53 L. Ed. 131, 29 S. Ct. 85. There is no final judgment below to sustain an appeal to the federal supreme court from the supreme court of the ter- ritory of Hawaii in a case in which the latter court has pursued the usual course upon exceptions, and has not entered or directed a judgment. Hutchins v. Bierce, 211 U. S. 429, 53 L. Ed. 267, 29 S. Ct. 122. A judgment of the supreme court of Hawaii on a writ of error, overruling ex- ceptions to a verdict and judgment in ejectment, and affirming the judgment, is final for the purpose of a review in the supreme court of the United States. Spreckles v. Brown, 212 U. S. 208, 53 L. Ed. 476. 29 S. Ct. 256, distinguishing Cot- ton V. Hawaii, 211 U. S. 162, 53 L. Ed. 131, 29 S. Ct. 85. The order of a territorial supreme court, reversing the order of the court below. 08 Vol. I. APPEAL AND ERROR. 535-541 (3) Reviczv of Questions of Fact — aa. In General. — See note 2. bb. Rezneiv of Findings of Fact by Territorial Court. — See notes 5, 6. (5) Questions of Practice. — See note 19. granting- a new trial, can not be reviewed by the federal supreme court on a writ of error directed alone to a later decision in the same case, overruling exceptions, the record of which can not be regarded as embracing the proceedings had below in respect to the matter of a new trial. Cot- ton V. Hawaii, 211 U. S. 162, 53 L. Ed. 131, 29 S. Ct. 85. The mere entry upon the minutes by the clerk of the supreme court of the ter- ritory of a decision overruling exceptions taken under Rev. Laws Haw. 1905, § 1862, et seq., which did not bring up the whole case, and called upon the reviewing court merely to pass upon 'specific questions raised by the bill, does not make such decision a final judgment, so as to be sub- ject to review in the federal supreme court. Cotton V. Hawaii, 211 U. S. 162, 53 L. Ed. 131. 29 S. Ct._ 85. 535-2. Review of questions of fact. — Sherman v. Goodwin, 223 U. S. 711. 56 L. Ed. 624. 33 S. Ct. 519, citing Idaho, etc., Improv. Co. V. Bradbury, 132 U. S. 509, 513, 33 L. Ed. 433, 10 S. Ct. 177; Garzot V. De Rubio, 209 U. S. 284, 52 L. Ed. 794, 28 S. Ct. 548. _ 536-5. Review of findings of fact by territorial court.— Gonzales v. Buist, 224 U. S. 126, 56 L. Ed. 693, 32 S. Ct. 463. The jurisdiction of the federal supreme court, under Act April 7, 1874, c. 80, 18 Stat. 27, on an appeal froin a territorial court, is limited to the inquiry whether the findings of fact made by the court below support its judgment, and to a review of exceptions which have been duly taken to rulings upon the admission or rejection of evidence. Eagle Min., etc., Co. v. Hamil- ton, 218 U. S. 513, 54 L. Ed. .1131, 31 S. Ct. 27, affirming decree (1907), 91 P. 718, 41 N. M. 511. Findings of a territorial supreme court that commissioners appointed in a street improvement proceeding examined the lo- cality thereof, ascertained the extent of public benefit, and of benefits to property, found amounts that property would be benefited, and apportioned and assessed the amounts on the several parcels in the proportion of which they were severally benefited, and that no lot was assessed for more than it was actually benefited, fore- close any contention in the federal su- preme court that assessment was made ac- cording to the front-foot rule, and not on basis of benefits. English v. Arizona. 214 U. S. 359, 53 L. Ed. 1030, 29 S. Ct. 658. 537-6. In suit to cancel corporate lease. — In reviewing a decree of a territorial supreme court, which reversed the decree of the trial court in a suit to cancel a cor- porate lease, the federal supreme court is confined, as vv-as the court below, to de- termining whether there was some evi- dence supporting the findings of the trial court, and whether the facts found were adequate to sustam the legal conclusions. Judgment, Anderson v. Shawnee Com- press Co. (1906J, 87 P.. 315, 17 Okl. 231, affirmed. Shawnee Compress Co. v. An- derson, 209 U. S. 423, 52 L. Ed. 865, 28 S. Ct. 572. Review of decree of supreme court of Oklahoma Territory. — The jurisdiction of the supreme court of the United States on an appeal from a decree of the supreme court of the territory of Oklahoma in a case submitted to the trial court by stipu- lation, without a jury, is confined to de- termining whether there was evidence tending to support the findings, and whether such findings sustained the judg- ment; since the trial court, by virtue of Rev. St. Okl. 1903, § 279, was empowered to make findings of fact as the basis of its conclusions of law, and the supreme court of the territory was confined to de- termining whether the findings below sustained the judgment, if there was evi- dence supporting the findings, and was not at liberty to consider the mere weight of the evidence upon which the findings were made by the trial court. Judgment (1906), 85 P. 459, 16 Okl. 131, affirmed. Southern Pine Lumber Co. v. Ward, 208 U. S. 126, 52 L. Ed. 420, 28 S. Ct. 239. 541-19. Questions of practice. — The fed- eral supreme court should certainly lean to the construction placed upon a terri- torial statute by the supreme court of the territory. Copper Queen, etc., Min. Co. 7-. Territorial Board. 206 U. S. 474, 51 L. Ed. 1143, 27 S. Ct. 695; Sweeney v. Lomme, 22 Wall. 208, 22 L. Ed. 727; Fox v. Haarstick, 156 U. S. 674, 39 L. Ed. 576, 15 S. Ct. 457; Clason v. Matko, 223 U. S. 646, 56 L. Ed. 588, 32 S. Ct. 392. The view of a territorial supreme court, that an alias attachment is not authorized by the local statutes, is very persuasive upon the federal supreme court in con- struing such statutes. Crary v. Dj^e, 208 U. S. 515, 52 L. Ed. 595, 28 S. Ct. 360. There is no such manifest error as calls for reversal of judgment below by the federal supreme court in a decision of the territorial supreme court that a method of collecting delinquent taxes, prescribed by Laws .\riz. 1903, No. 92, viz., a suit by county tax collector in the name and for use of the territory, is made applicable to delinquent special assessments for public improvements by reason of provisions of §§ 84 and 96 of that act, requiring, respectively, the clerks of county boards to correctly list all tracts on which back 69 541 APPEAL AND ERROR. Vol. I. j. The Statement of the Facts. — See note 21. taxes shall be due, and all back taxes of whatever kind to be collected by the col- lector under authority of such statute. English V. Arizona, 214 U. S. 359, 53 L. Ed. 1030, 29 S. Ct. 658, following Copper Queen, etc., Min. Co. v. Territorial Board, 206 U. S. 474, 479, 51 L. Ed. 1143, 27 S. Ct. 695. The federal supreme court will adopt the view of officers concerned with adminis- tration of law respecting a public im- provement, concurred in by the court in which condemnation proceedings were conducted, and apparently, also, by the territorial supreme court, as to which of two sections of Arizona Revised Statutes governs appointinent of commissioners, where the statute will bear that construc- tion, though plausible objections may be urged against it. Decree (Ariz. 1907), 89 P. 501. affirmed. English v. Arizona, 214 U. S. 359, '53 L. Ed. 1030, 29 S. Ct. 658, fol- lowing Copper Queen, etc., Min. Co. v. Territorial Board. 206 U. S. 474, 479, 51 L. Ed. 1143, 27 S. Ct. 695. The question of the power of a terri- torial supreme court, under its local stat- utes and procedure, to render a modified judgment on appeal in mandamus, will or- dinarily not be reviewed by the federal supreme court. Commissioners v. Coler, 215 U. S. 296, 54 L. Ed. 202, 30 S. Ct. 111. The construction placed by a territorial supreme court upon a local statute will not be disturbed by the federal supreme court on appeal, unless manifestly' erro- neous. Judgment, Territory v. Board of Com'rs of Santa Fe County (N. M. 1907\ 89 P. 252, affirmed. Commissioners v. Coler, 215 U. S. 296, 54 L. Ed. 202, 30 S. Ct. 111. following Sweeney v. Lomme, 22 Wall. 208. 22 L. Ed. 727: .A^rmijo z: Armijo, 181 U. S. 558, 45 L. Ed. 1000, 21 S. Ct. 707; English v. Arizona. 214 U. S. 359, 53 L. Ed. 1030, 29 S. Ct. 658. The construction given by a territorial supreme court to the statutes of that ter- ritory will ordinarily not be disturbed by the federal supreme court on writ of er- ror to the territorial court. Judgment (1908). Sandoval v. Albright. 93 P. 717, affirmed. Albright v. Sandoval, No. 2, 216 U. S. 342, 54 L. Ed. 509, 30 S. Ct. 321, fol- lowing Fox 7'. Haarstick, 156 U. S. 674, 39 L. Ed. 576, 15 S. Ct. 457; English v. Arizona. 214 U. S. 359, 53 L. Ed. 1030, 29 S. Ct. 658; Crary v. Dye, 208 U. S. 515, 52 L. Ed. 595, 28 S. Ct. 360. The decision of the Arizona supreme court that a railway company organized in 1901 under Laws Ariz. 1897, No. 3, for the purpose of buying the property of a rail- road sold on foreclosure, may claim the benefit of the provision of Laws Ariz. 1899. No. 68, that property used or neces- sary in the construction and operation of railroads thereafter constructed, whether owned or operated by a person, associa- tion, or railway corporation, their succes- sors or assigns, shall be exempt from all manner of taxation for ten years from the date of the act, although by § 8 of the earlier act it was provided that that act should not be construed to give to any corporation created under it any exemp- tion from taxation created by any existing or future exemption laws, is not so clearly erroneous as to require reversal in the federal supreme court. Treat v. Grand Canyon R. Co., 222 U. S. 448, 56 L. Ed. 265, 32 S. Ct. 125, affirming decree (1909), 100 P. 438, 12 Ariz. 117, following Fox v. Haarstick, 156 U. S. 674, 679, 39 L. Ed. 576, 15 S. Ct. 457;. English v. Arizona, 214 U. S. 359, 53 L. Ed. 1030, 29 S. Ct. 658. Stipulation. — The federal supreme court will not reverse the decision of a terri- torial court upon its construction of a stipulation, where the stipulation pertains simply to the conduct of the trial. Clason V. Matko, 223 U. S. 646. 56 L. Ed. 588, 32 S. Ct. 392. A judgment for plaintiffs in an action to quiet title to a mining claiin which de- fendant claims under a relocation after an alleged forfeiture for failure to do the necessary assessment work before re- sumption of work by plaintififs, on the ground that defendant's relocation was void, because the location notice attached to his cross complaint did not state that the claim was located as forfeited or abandoned property, as required by Ariz. Rev. Stat. par. 3241. and that a stipulation that the respective locations on which the parties based their rights were each "duly made," and that all acts required by the laws of the United States and the terri- tory of Arizona necessary to vest good and valid titles in the locators had been duly performed at the time of the location, except that plaintiffs do not admit that at the time of defendant's location the ground was open to location, because of failure to do assessment work, was en- tered into only to take the place of evi- dence, and not to supplant the pleadings, and that the cross complaint was insuffi- cient for failure to show a proper loca- tion notice, will not be disturbed on ap- peal, even though the stipulation might be regarded as admitting the sufficiency of defendant's notice, where both parties amended their pleadings after the filing of the stipulation, and defendant was not de- prived of any right by the decision as to the nature of the stipulation. Clason v. Matko, 223 U. S. 646, 56 L. Ed. 588, 33 S. Ct. 392. 541-21. The statement of facts. — A ter- ritorial supreme court does not discharge its duty under the act of April 7, 1874 (18 70 Vol. I. APPEAL AND ERROR. 545-546 1. Mandate. — See note 39. m. Affirmance or Reversal. — The general rule is to affirm a judgment on an appeal from a territorial court where the record contains no exceptions to rul- ings upon the admission or rejection of evidence, and where there is absence of the statement of facts required by the statute to enable the reviewing power to be exerted, and when there is no showing that the appellant has used due diligence to exact a compliance with the statute, so as to enable an appeal to be prosecuted."* ^^ But to this general rule an exception will be recognized; first, where the action of the court below is plainly the result not of a mere omission to perform its duty to make a statement of facts, but arises from a misconception of its powers in discharging that statutory duty. Second, where the initial action by which the error was committed was am- biguously manifested and may have misled the unsuccessful party. And third, where the final order shows that the court intended to make no findings of fact, and deemed that, consistently with the right to review its action which is vested in the federal supreme court, it had the power to decide the case upon a mere hypothesis as to the correctness of the findings of the trial court."* -'^ 7. Over State Courts — a. In General. — See notes 44, 48. Stat, at L. 27, chap. 80), to make an ade- quate statement of facts in the nature of a special verdict, where it merely hypo- thetically assumes the findings of the trial court to be correct, and upon such mere hypothesis bases a judgment which re- verses a decree for complainant below and remands the cause, with a direction to enter a final decree against such com- plainant. Nielsen v. Steinfeld, 224 U. S. 534, 56 L. Ed. 872, 32 S. Ct. 609. Sufficiency of certified statement of facts. — But whether the court adopts an agreed statement of facts or itself finds the facts, the agreed statement or findings must be of the ultimate facts, and if they be merely recital of testimony or eviden- tiary facts, it brings nothing before the federal supreme court for consideration. Gonzales v. Buist, 224 U. S. 126, 56 L. Ed. 693, 32 S. Ct. 463, citing Thompson v. Ferry, 180 U. S. 484, 45 L. Ed. 633, 21 S. Ct. 453; United States Trust Co. v. New Mexico, 183 U. S. 535, 540, 46 L. Ed. 315, 22 S. Ct. 172; Crowe v. Trickey, 204 U. S. 228, 235, 51 L. Ed. 454, 27 S. Ct. 275; Glenn V. Fant, 134 U. S. 398, 33 L. Ed. 969, 10 S. Ct. 583. 545-39. Admission of territory pending appeal.— Nielsen r. Steinfeld, 224 U. S. 534, 56 L. Ed. 872, 32 S. Ct. 609. 546-42a. General Rule. — Gonzales v. Buist, 224 U. S. 126, 56 L. Ed. 693, 32 S. Ct. 463; Nielsen v. Steinfeld, 224 U. S. 534, 56 L. Ed. 872, 32 S. Ct. 609. 546-42b. Exception to rule. — Nielsen v. Steinfeld, 224 U. S. 534, 56 L. Ed. 872, 32 S. Ct. 609. The hypothetical assumption by a ter- ritorial supreme court of the correctness of the findings of the trial court, and the basing upon such mere hypothesis of a judgment which reversed a decree in favor of complainant below, and re- manded the cause, with a direction to en- ter a final decree against such complainant, instead of discharging its duty under the act of April 7, 1874, to make a statement of the facts in the nature of a special ver- dict, calls for a reversal in the federal su- preme court, rather than the usual affirm- ance, where such action arose from the court's misconception as to the nature and extent of its power in discharging its statutory duty, and where the initial ac- tion by which the error was committed was ambiguously manifested, and may have misled the unsuccessful party, and the final order which made clear the court's intent and misconception was not entered until months after the appeal to the fed- eral supreme court had been taken. Nielsen v. Steinfeld, 224 U. S. 534, 56 L. Ed. 872, 32 S. Ct. 609. 546-44. The Revised Statutes of the United States, § 709, authorize the supreme court to review final judgments in the highest court of the state in which a de- cision in the suit could be had, where any title, right, privilege or immunity under the federal constitution or under any statute of or authority exercised under the United States, is specially claimed and de- nied. Atchison, etc., R. Co. v. Sowers, 213 U. S. 55, 62, 53 L- Ed. 695, 29 S. Ct. 397. "It was settled, once for all time, in Co- hens V. Virginia, 6 Wheat. 264, 52 L. Ed. 257, that the appellate jurisdiction, authorized by the constitution to be exercised by this court, warrants it in reviewing the judg- ments of state courts so far as they pass upon a law of the United States. It was said in that case (p. 416) :_ 'They [the words of the constitution] give to the su- preme court appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever court 71 547-558 APPEAL AND ERROR. Vol. I. g. Decision Must Be That of "Highest Court" in State. — See note 84. Rule Where Highest Court Denies Petition for Writ of Error. — The judgment of the trial court is that of the highest court of the state for the purpose of a writ of error from the federal supreme court, where the highest state tribunal has denied a writ of error to the trial court.^^^ they may be decided;' and it was further said (p. 379) : 'A case in law or equity con- sists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either.' But the appellate jurisdiction of this court must be «exercised 'with such exceptions and under such regulations as the congress shall make.' " St. Louis, etc., R. Co. V. Taylor, 210 U. S. 281, 292, 52 L. Ed. 1061, 28 S. Ct. 616. 547-48. Right is limited by the statute. — The supreme court has had frequent oc- casion to say that its right to review the judgment of the highest court of a state is specifically limited by the provisions of § 709. Rev. Stat., of the United States. Appleby v. Buffalo, 221 U. S. 524. 529. 55 L. Ed. 838, 31 S. Ct. 699; Chesapeake, etc., R. Co. V. McDonald, 214 U. S. 191, 192, 53 L. Ed. 963, 29 S. Ct. 546. "Congress has regulated and limited the appellate jurisdiction of this court over the state courts by § 709, Rev. Stat., and our jurisdiction in this respect extends only to the cases there enumerated, even though a wider jurisdiction might be per- mitted by the constitutional grant of power." St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 292, 52 L. Ed. 1061, 28 S. Ct. 616. A case can only be brought to the fed- eral supreme court from a suprem.e court of a state by writ of error under § 709, Rev. Stat., of the United States, in order to determine federal rights asserted under that section of the statutes which it is claimed have been denied by the decision and judgment of the supreme court of the state. Los Angeles, etc., Milling Co. 7'. Los Angeles, 217 U. S. 217, 225, 54 L. Ed. 736, 30 S. Ct. 452. 556-84. The court of civil appeals of the state of Texas is the highest court of the state for the purpose of a review in the federal supreme court in a case in which the supreme court of the state has dismissed, for want of jurisdiction, an ap- plication to review the judgment of court of civil appeals. Judgment (Tex. Civ. App. 1906), 95 S. W. 645. affirmed. Sulli- van V. Texas, 207 U. S. 416, 52 L. Ed. 274, 28 S. Ct. 215. 558-90a. Where highest court denies pe- tition for writ of error. — Western Union Tel. Co. V. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 S. Ct. 399. But in a late important case Mr. Chief Justice White made the following an- nouncement: "Hereafter, a writ of error to review an alleged judgment or decree of a court of last resort of the state, de- clining to allow a writ of error to, or an appeal from, a lower state court, will be dismissed unless it plainly appears on the face of the record, by an affirmance in ex- press terms of the judgment or decree sought to be reviewed, that the refusal of the court to allow an appeal or writ of error was the exercise by it of jurisdiction to review the case upon the merits." Nor- folk, etc., Turnpike Co. v. Virginia, 225 U. S. 264, 56 L. Ed. 1082, 32 S. Ct. 828. "While, therefore, in this case, for the reasons stated, we entertain jurisdiction, and do not of our own motion dismiss the writ, for the purpose df avoiding the com- plexity and doubt which must continue to recur, and for the guidance of suitors in the future, we now state that from and after the opening of the next term of this court, where a writ of error is prosecuted to an alleged judgment or decree of a court of last resort of a state, declining to allow a writ of error to or an appeal from a lower state court, unless it plainly ap- pears, on the face of the record, by an af- firmance in express terms of the judg- ment or decree sought to be reviewed, that the refusal of the court to allow an appeal or writ of error was the exercise by it of jurisdiction to review the case upon the merits, we shall consider our- selves constrained to apply the rule an- nounced in the Crovo Case (Western Union Tel. Co. v. Crovo, 220 U. S. 364, 366, 55 L. Ed. 498, 31 S. Ct. 390), and shall therefore, by not departing from the face of the record, solve against jurisdiction the ambiguity created by the form in which the state court has expressed its action." Norfolk, etc., Turnpike Co. v. Virginia, 225 U. S. 264, 56 L. Ed. 1082. 32 S. Ct. 828. The plaintiff in error has sued out two writs of error; one to the law and equity court of the city of Richmond, the trial court, and anot^'er to the supreme court of appeals of Virginia. Inasmuch as the latter court denied a writ of error, the judgment of the law and equity court was the highest court of the state to which the case could be carried, and a writ will therefore lie to that court if a federal question is properly saved. Western Union Tel. Co. v. Crovo. 220 U. S. 364, 55 L. Ed. 498. 31 S. Ct. 300. Tn Western U"ion Tel. Co. 7'. Crovo, 220 IT. S. 364. 55 L. Ed. 498. 31 S. Ct. 399, the federal suoreme court held without Vol. I. APPEAL AND ERROR. 558 h. JJlwt Is the Assertion of "a Right or Itiiiniuiity." — See note 92. discussion that the judgment of the trial court is that of the highest court of the state for the purpose of a writ of error from a federal supreme court where the highest state tribunal has denied a writ of error to the trial court. But in Nor- folk, etc.. Turnpike Co. v. Virginia, 325 U. S. 264, 56 L. Ed. 1082, 32 S. Ct. 828, where the highest state tribunal had de- nied a writ of error to the trial court, and a writ of error was sought to the highest state court and not to the trial court, it was held that if the rule announced in the Crovo case were applied, the writ of er- ror would have to be dismissed; but since the highest state court had denied the writ to the trial court on the ground that the judgment was "plainly right," an am- biguity^ exists whether it is a refusal to take jurisdiction or an exercise of juris- diction and affirmance, and the ambiguity would be solved in favor of jurisdiction, because there is little doubt that when the form of expression used by the court be- low is read in the light of the previous rulings it was quite clear that the court deemed it was exercising jurisdiction over the cause and virtually affirming the judg- ment, and was expressing its action in such way as to clearly indicate that such was its intention, especially where the writ of error was allowed by the presid- ing judge of the court. But the court warned that for the purpose of avoiding the ambiguity and doubt which must con- tinue to occur and for the guidance of suitors in the future that from and after the next term of the court where a writ of error is prosecuted to an alleged judg- ment or a decree of a court of last resort of a state declining- to allow a writ of er- ror to or an appeal from the lower state court, unless it plainly appears on the face of the record by an affirmance in ex- press terms of the judgment or decree sought to be reviewed that the refusal of the court to allow an appeal or writ of error was the exercise by it of jurisdiction to review the case upon the merits, it would consider itself constrained to apply the rule announced in the Crovo case and would, therefore, by not departing from the face of the record, solve against ju- risdiction the ambiguity created by the judgment in which the state court has ex- pressed its action. For an interesting dis- cussion of this decision, see Va. Law Reg- ister, vol. 18, p. 30,3. 558-92. What is the assertion of "a right or immunity." — The principles to be de- rived from the cases are these: Where a party to litigation in a state court insists, by way of objection to or requests for in- structions, upon a construction of a stat- ute of the United States which will lead, or, on possible findings of fact from the evidence maj^ lead, to a judgment in his favor, and his claim in this respect, being duly set up, is denied by the highest court of the state, then the question thus raised may be reviewed in the federal supreme court. The plain reason is that in all such cases he has claimed in the state court a right or immunity under a law of the United States and it has been denied to him. Jurisdiction so clearly warranted by the constitution and so ex- plicitly conferred by the act of congress needs no justification. But it may not be out of place to say that in no other man- ner can a uniform construction of the statute laws of the United States be secured, so that they shall have the same meaning and effect in all the states of the union. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 293, 52 L- Ed. 1061, 28 S. Ct. 616. A party who insists, by way of objection to or requests for instructions, upon a construction of a federal statute which will lead to a judgment in his favor, sets up a claim of a right or immunity under such statute within the meaning of Rev. St. U. S., § 709 (U. S. Conip. St. 1901, p. 575), governing writs of error from the supreme court of the United States to state courts. Judgment, St. Louis, L M, & S. Ry. Co. v. Neal (1906), 98 S. W. 958, 83 Ark. 591, reversed. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 106L 28 S. Ct. 61G. Right claimed under territorial statute. — The decision of a state court denying the force and effect speciallj^ claimed un- der the federal constitution and laws for a territorial statute is reviewable in the supreme court of the United States under Rev. St. U. S., § 709 (U. S. Comp. St. 1901, p. 575), as a case in which a right, title, privilege, or immunity under the federal constitution, or under a statute of, or au- thority exercised under, the United States, was specially claimed and denied. Judg- ment (Tex. Civ. App. 1907), 99 S. W. 190, affirmed. Atchison, etc., R. Co. v. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. Title claimed under supply lien law of state. — Claims by the United States, in proceedings under the supply lien law of a state, to establish the rights of creditors furnishing supplies for the construction of vessels building for the United States, that under the contract for the construction of one of the vessels the title vested in the government as fast as paid for; that a lien was reserved to the government un- der the contract for building the other vessels, superior to the claim of the sup- ply lien creditors under the state law; that the right of the government to its superior claims could not be affected by, and was not subject to, such law; and that the state had no power to retard, impede. 73 560-570 APPEAL AND ERROR. Vol. I. i. Decisions Reviezvable — (2) Necessity for Finality of Judgment or Decree. — See post, "Finality of Decision as Governing Right of Review," IV, C. In Case of Successive Appeals. — The judgment of the highest court of a state, affirming, on a third appeal, a judgment entered on a verdict in favor of plaintiff, is the first final judgment in the action which is reviewable in the federal supreme court, where the highest state court, on the first appeal, re- versed the order of the lower court, granting a petition for the removal of the action to a federal circuit court, and remanded the case for trial, and, on the second appeal, reversed a judgment entered on a directed verdict in favor of defendant, although the court, on such third appeal, regarded itself as bound by its prior decision as the law of the case, and declined again to consider the federal question. ^•^'^ k. Necessity for Adverse Decision — (3) Under Third Clause of the Statute. — If the question in the state court involves the right of a party to be protected against a law which violates a right under the federal constitution, whether by its terms or the manner of its enforcement, it is manifest that a decision which denies such protection gives effect to the law, and the decision is reviewable by the supreme court.^^^ 1. Parties. — See post, "Parties and Persons Entitled to Appeal," VI. {I) In General. — Although a state was not named as a party to the proceed- ings initiated in the court below, yet if the proceedings in that court were in reality begun and prosecuted on behalf of the state, this is sufficient. ^^"^ m. Who May Make the Objection. — See note 24. or control the operation of the federal government in making and carrying out such contracts, are assertions of rights and immunities, the creation of federal authority, which, when denied by a state court, present a case under Rev. St. U. S., § 709 (U. S. Comp. St. 1901, p. 575), for a writ of error from the federal su- preine court. United States v. Ansonia Brass, etc., Co., 218 U. S. 452, 54 L. Ed. 1107, 31 S. Ct. 49. 560-96a. In case of successive appeals. —Chesapeake, etc., R. Co. v. AlcCabe, 213 U. S. 207, 53 L. Ed. 765. 29 S. Ct. 430, re- versing Maysville & B. S. R. Co. v. Mac- abe's Adm'x, 100 S. W. 219, 30 Ky. Law Rep. 1009. 568-17a. 'Under third clause of the stat- ute.— General Oil Co. c'. Crain, 209 U. S. 211. 52 L. Ed. 754, 28 S. Ct. 475. A decision of a state court dismissing-, on the ground that the suit was one against the state, and therefore not within its jurisdiction, a bill which seeks to en- join a state oil inspector from enforcing a state inspection law, on the theory that such law. if applied to the oils in contro- versy, violates the commerce clause of the federal constitution, gives effect to such law, and is reviewable by the supreme court of the United States. Judgment (1906), 95 S. W. 824, 117 Tenn. 82. affirmed. General Oil Co. v. Crain, 209 U. S. 211. 52 L. Ed. 754, 28 S. Ct. 475. Where act of congress erroneously con- strued. — Where the action is brought un- der an act of congress, if the act has been erroneously construed and exceptions saved, or if a particular construction to which the party asking was entitled was denied, a right has been denied under the statute, and the question may be reviewed by the supreme court. St. Louis, etc., R. Co. V. Taylor, 210 U. S. 281, 293, 52 L. Ed. 1061, 28 S. Ct. 616; Seaboard Air Line Railway v. Duvall, 225 U. S. 477, 56 L. Ed. 1171, 32 S. Ct. 790. 569-23a. State as defendant in error. — Norfolk, etc.. Turnpike Co. v. Virginia, 225 U. S. 264, 56 L. Ed. 1082, 32 S. Ct. 828, citing Pearson v. Yewdall, 95 U. S. 294, 24 L. Ed. 436. See, also, post, COURTS. The state is properly made the defend- ant in error in a writ of error sued out to review the judgment of a state court sus- pending the collection of tolls by a turn- pike company until the roads were put in proper repair, although the state was not named as a party to the proceedings leading up to such judgment, where such proceedings were in reality begun and prosecuted on behalf of the state. Nor- folk, etc., Turnpike Co. v. Virginia, 225 U. S. 264, 56 L. Ed. 1082, 32 S. Ct. 828, cit- ing Pearson v. Yewdall, 95 U. S. 294, 24 L. Ed. 436. 570-24. Who may make the objection. — It is well settled in the federal supreme court that, because a state statute, when enforced in a state court against a class to which the party complaining does not belong, may work a deprivation of con- stitutional i-ights, that fact does, not au- thorize the reversal of a judgment of a state court not enforcing the statute so as to deprive the party complaining of rights which are protected by the federal con- stitution. Hatch V. Reardon, 204 U. S. 152, Vol. I. APPEAL AND ERROR. 571-574 p. Shoziing as to Jurisdiction — (1) In General. — See note 28. (2) That Federal Question Was Actually or Necessarily Raised and Decided — aa. /;/ General. — See notes 41, 46. ]60, 51 L. Ed. 415, 27 S. Ct. 188; Lee v. New Jersey, 207 U. S. 67, 70, 52 L. Ed. 106, 28 S. Ct. 22. A judgment of a state court which does not so enforce a state statute as to de- prive the party complaining of rig'hts which are protected by the federal con- stitution will not be reversed in the su- preme court of the United States because such statute, when enforced against a class to which the party complaining does not belong, may work a deprivation of such constitutional rights. Lee v. New Jersey, 207 U. S. 67. 52 L. Ed. 106. 28 S. Ct. 22. 571-28. Showing as to jurisdiction. — ^The federal supreme court will review by writ of error a decision of a state court, re- fusing habeas corpus to a person in cus- tod3' upon the charge of practicing medi- cine without complying with the require- ments of Tex. Laws 1907, chap. 123. with respect to licensing and registration, where, the facts being admitted, the ques- tion of the validity of that statute under the federal constitution appears as plainly as it ever will. Collins v. Texas. 22.^ U. S. 288. 56 L. Ed. 439, 32 S. Ct. 286. 574-41. Question must have been neces- sarily raised and decided. — In order f> give the federal supreme court jurisdic- tion of a writ of error to the highest court Oi a .-•t.'.te in which a ('ecis,u>n couM be had it must appear affirmatively that a federal question v/.ts presented fot de- cision, that its decision was necessary to the determination of the cause, and that it was actually decided or that the judgment rendered could not have been given with- out deciding it. First Nat. Bank t'. City Council. 215 U. S. 341. 346. 54 L. Ed. 223, 30 S. Ct. 152._ See, also, post, COURTS. Where the jurisdiction of the supreme court depends Upon the denial by the --late court of some right, privilege, or immunity claimed under the constituti.'n or au- thority of the United States, it must ap- pear on the record that such riglit, privi- lege or immunity was specially set up and tlaimed and was expressly denied or 5uch was the necessary effect in law of ihe judgment. .A.pplebv v. Buffalo. 221 U. S. 524. 55 L. Ed. 838. 31 S. Ct. 699. In any of the classes of cases men- tioned in § 709 it is essential that the record disclose that the federal question involved was decided, or that the judg- ment necessarily involved the federal right and decided it adversely to the claim of the plaintiff in error. Chesapeake, etc.. R. Co. V. McDonald. 214 U. S. 191. 193, 53 L. Ed. 963. 29 S. Ct. 546. "According to the well-settled doctrine of this court with regard to cases coming from state courts, unless a decision upon a federal question w&s necessary to the judgment or in fact was made the ground of it, the writ of error must be dismissed." Bonner v. Gorman, 213 U. S. 86, 91, 53 L. Ed. 709, 29 S. Ct. 483. "In a case xoming from a state court this court can consider only federal ques- tions, and that it can not entertain the case unless the decision was against the plaintiff in error upon those questions. '' * * A decision upon those questions must have been necessary to the decision of the case, so that if the judgment complained of is supported also upon other and inde- pendent grounds, the judgment must be affirmed or the writ of error dismissed, as the case may be. * * * It is further estab- lished that when the record discloses such other and completely adequate grounds this court commonly does not inquire whether the decision upon them was or w^as not correct, or reach a federal question by de- termining that they ought not to have been held to warrant the result. * * * Of course, there might be cases where, al- though the decision put forward other rea- sons, it would be apparent that a federal question was involved whether mentioned or not. It may be imagined * * * that it might appear that a state court even if, os- tensibh^ deciding the federal question in fa- vor of the plaintiff in error, really must have been against him upon it, and was seeking to evade the jurisdiction of this court. If the ground of decision did not appear and that which did not involve a federal ques- tion was so palpably unfounded that ft could not be presumed to have been en- tertained, it may be that this court would take jurisdiction." Leathe z'. Thomas. 207 U. S. 93, 98, 52 L. Ed. 118, 28 S. Ct. 30. The decision of a state court that the federal questions alleged to be involved in mandamus proceedings were entirely put out of the case by the facts set forth in the return to the alternative writ, presenting a question obviously not of a federal char- acter, will not be reviewed by the federal supreme court, where there is nothing in the case to justify a suspicion that the fed- eral questions were sought to be avoided, or were avoided by giving an unreason- able construction to the pleadings. Van- dalia R. Co. r. South Bend, 207 U. S. 359, 52 L. Ed. 246, 28 S. Ct. 130. No federal question respecting due proc- ess of law or full faith and credit which will sustain a writ of error from the fed- eral supreme court to the highest court of the state is involved in a suit in which the state court, after reversing a judgment for defendant on the ground that a judgment of a federal circuit court, set up as res 75 579-585 APPEAL AND ERROR. Vol. I (3) Where Decision Is Based on Independent Grounds, — See note 66. judicata in a special replication to two or lour pleas in s^t-off, is binding, decided on rehearing that, conceding the judgment of the federal court to be binding as to the two pleas to which the replication of res judicata applies, judgment for defendant can be upheld upon the other two pleas referring to earlier stages of the same transaction; nor does it matter that the federal supreme court may think the state court wrong in believing that there is evi- dence to support these pleas. Leathe v. Thomas, 207 U. S. 93, 52 L. Ed. 118, 28 S. Ct. 30. The decision of a state court will not be deemed to present a question respecting due process of law which will sustain a writ of error from the supreme court of the United States, on the theory that such decision gave retroactive effect to a stat- ute passed since the argument of the ap- peal before the state court, where the lan- guage of the court's opinion maj^ equally well be interpreted as a declination to pass upon a question not necessary to the de- cision, which had been set at rest for the future by legislation. Stickney v. Kelsey, 209 U. S. 419. 52 L. Ed. 863. 28 S. Ct. 508. 579-46. Was necessarily involved in the decision. — "This case comes here from a state court, and, of course, therefore it must appear that a federal question neces- sarily was involved in the decision before this court can take jurisdiction or under- take to reverse the judgment of a tribunal over which it has no general power. It is not enough that a right under the con- stitution of the United States was spe- cially set up and claimed. It must be made manifest either that the right was denied in fact, or that the judgment could not have been rendered without denying it." Western Union Tel. Co. v. Wilson, 213 U. S. 52, 53, 53 L. Ed. 693, 29 S. Ct. 403. The refusal of the state court to permit the filing of a plea setting up a federal question does not necessarily involve a de- cision of such question so as to sustain the appellate jurisdiction of the supreme court of the United States, where the state court may have refused such permission either because the plea was not filed until more than nine months after the declaration, and not until the case was called for trial, or because such plea, which went in terms to the whole declaration, and prayed judg- ment, was clearly bad as to the second count in the declaration. Western Union Tel. Co. V. Wilson, 213 U. S. 52, 53 L. Ed. 693, 29 S. Ct. 403. It is the obvious duty of counsel, if they wished any particular construction of the Employers' Liability Act of April 22. 1908, to put the request in such definite terms as that the attention of the court might be directed to the point, o.nd the record here should show that the right now claimed was the right "specially set up" and de- nied by the court. "It must appear on the face of the record that it was in fact raised; that the judicial mind of the court was exercised upon it; and then a decision against the right claimed under it." Or, at all events, it must appear from the record that there was necessarily present a definite issue as to the correct construc- tion of the act, so directly involved that the court could not have given the judg- ment it did without deciding the question against the contention of the plaintiff in error. Seaboard Air Line Railway v. Duvall, 225 U. S. 477, 56 L. Ed. 1171, 32 S. Ct. 790. To sustain a writ of error from the fed- eral supreme court to review a judgment of the highest court of a state on the ground that there was set up and denied a right, privilege, or immunity claimed un- der a federal statute, it must appear from the record that there was necessarilj'- pres- ent a definite issue as to the correct con- struction of the act so directly involved that the state court could not have given the judgment it did without deciding against the contention of the plaintiff in error. Seaboard Air Line Railway v. Du- vall, 225 U. S. 477, 56 L. Ed. 1171, 32 S. Ct. 790. Federal question held to be necessarily in issue and decided. — The objection that the federal question was not properly and seasonabl}" raised in the state courts is not available to defeat the jurisdiction of the supreme court of the United States of a writ of error to the highest court of a state, where it clearly and unmistakably appears from the opinion of that court that the federal question was assumed to be in issue, was decided against the claim of federal right, and that the decision of the question was essential to the judgment rendered. Judgment, Baltimore & O. R. Co. v. Chambers (1905), 76 N. E. 91. 73 Ohio St. 16. afilrmed. Chambers v. Balti- more, etc.. R. Co., 207 U. S. 142, 52 L. Ed. 143. 28 S. Ct. 34. 585-66. Where decision is based upon in- dependent grounds. — "According to the well-settled doctrine of this court with regard to cases coming from state courts, imless a decision upon a federal question was necessary to the judgment or in fact was made the ground of it, the writ of error must be dismissed. And even when an erroneous decision upon a federal ques- tion is made a ground, if the judgment also is supported upon another which is adequate by itself, and which contains no federal question, the same result must follow as a general rule. Moreover, ordi- narily this court will not inquire whether the decision upon the matter not subject 76 Vol. I. APPEAL AND ERROR. 585 to its revision was right or wrong." Ar- kansas, etc., R. Co. z'. German Xat. Bank, 207 U. S. 270, 52 L. Ed. 201, 28 S. Ct. 78. The supreme court will not review a judgment of a state court where the latter has decided the case on a sufficient ground not within the federal objections taken. Waters-Pierce Oil Co. 7,: Texas, Xo. 2, 212 U. S. 112, 53 L. Ed. 431, 29 S. Ct. 227; St. Louis, etc., R. Co. v. Tyler, 212 U. S. 552, 53 L. Ed. 649, 29 S. Ct. 684. Where the disposition of federal ques- tion was not necessary to the determina- tion of the cause and the judgment is based on a distinct ground or grounds broad enough to sustain it. over which the supreme court has no jurisdiction, the writ of error can not be maintained. Rog- ers V. Jones, 214 U. S. 196, 204, 53 L- Ed. 965. 29 S. Ct. 635. If the record shows that the verdict and judgment of a state court can stand upon other grounds, free from objection so far as federal rights are concerned, no federal question is presented. Judgment (Tex. Civ. App. 1908) 106 S. W. 918, affirmed. Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. When a state court decides a case upon two grounds, one federal and the other nonfederal, the federal supreme court will not disturb the judgment if the nonfed- eral ground, fairly construed, sustains the decision. Berea College <••. Kentucky, 211 U. S. 45, 53, 53 L. Ed. 81, 29 S. Ct. 33. Where the supreme court of the state rested its judgment upon principles of common law as it understood them, the federal supreme court should go no far- ther, although that court also upheld and relied upon a statute claimed to be repug- nant to the federal constitution. Arkan- sas, etc., R. Co. V. German Nat. Bank, 207 U. S. 270. 52 L. Ed. 201, 28 S. Ct. 78. Dismissal of suit to remove cloud from title. — A decree of a state court dismissing a bill in a suit to remove a cloud is not reviewable in the supreme court because of a ruling that execution sale by a federal marshal, relied on as foundation of title, was made at the wrong place, where it is also based on grounds that the alleged return on the fi. fa. did not describe lands in controversy, that title had not been de- raigned as required by the state statute under which suit was brought, and that suit was barred by the state statute of limitations. Rogers n. Jones, 214 U. S. 196, 53 L. Ed. 965. 29 S. Ct. 635. No federal question respecting due proc- ess of law or full faith and credit which will sustain a writ of error from the fed- eral supreme court to the highest court of a state is involved in a suit in which the state court, after reversing a judgment for * defendant on the ground that a judgment of a federal circuit court, set up as res judicata in a special replication to two of four pleas in set-ofT, is binding, decided on rehearing that, conceding the judg- ment of the federal court to be binding as to the two pleas to which the replication of res judicata applies, judgment for de- fendant can be upheld upon the other two pleas referring to earlier stages of the same transaction; nor does it matter that the federal supreme court may think the state court wrong in believing that there is evidence to support these pleas. Leathe v. Thomas, 207 U. S. 93, 52 L. Ed. 118, 28 S. Ct. 30. The question of the validity, under the due process of law clause of Const. U. S. Amend. 14, of a tax sale made upon a no- tice published only in a Sunday newspaper, is not open on a writ of error from the supreme court of the United States to the highest court of a state, whose decision upholding the tax title was based upon the grounds that a state statute made the tax deed, which, upon its face, was a valid in- strument, prima' facie evidence of the sufficiency of the notice, and that posses- sion under such deed for the prescribed period met the requirements of the state statute of limitations. Judgment, Wood v. McCombe (1906), 86 P. 319, 37 Colo. 174, affirmed. Elder z\ Wood, 208 U. S. 226, 52 L. Ed. 464, 28 S. Ct. 263. A judgment of a state court against a carrier for the value of a shipment of cotton which it delivered without the sur- render of the bills of lading is not review- able in the supreme court of the United States, although the state court refers to, and upholds, over an objection of repug- nancy to the federal constitution, a state statute forbidding delivery under such circumstances, where the court treats the contract of shipment itself as requiring a delivery to shipper's order, and only upon the production of the bills of lading, prop- erly indorsed. Arkansas, etc., R. Co. v. German Nat. Bank. 207 U. S. 270, 52 L- Ed. 201, 28 S. Ct. 78. The validity of Acts Ky. 1904. p. 181, c. 85, so far as it prohibits domestic corpora- tions from teaching white and negro pu- pils in the same institution, can not be deemed affected by its possible invalidity under the federal constitution as to indi- viduals, where the highest state jtourt considers the act separable, and, while sustaining it as an entirety, gives an inde- pendent reason which applies only to corporations. Judgment (1906), 94 S. W. 623. 123 Ky. 209, affirmed. Berea College V. Kentucky, 211 U. S. 45, 53 L. Ed. 81. 29 S. Ct. 33. Validity of paving assessment law. — A federal question respecting the validity of a paving assessment against a street railway company is not open on writ of error from the supreme court of the United States to a state court, where the latter court based its ruling that the ques- tion had no standing in the case upon its view as to the scope of the application of 593 APPEAL AND ERROR. Vol. I. Determination of Question, — Doubtless the federal supreme court is not concluded by the ruling of the state court, and must determine for itself whether there is really involved any federal question which will entitle it to review the judgment. A case may arise in which it is apparent that a federal question is sought to be avoided or is avoided by giving an unreasonable construction to pleadings.'^^^ (4) Questions Must Be Real and Not Fictitious or Frivolous. — See note 78. the railway company for relief from the assessment, and of the pleadings, and it is not contended that such view is erroneous. Judgment (1903), 53 A. 9G0, 75 Conn. 442, affirmed. Fair Haven, etc., R. Co. v. New Haven. 203 U. S. 379, 51 L. Ed. 237, 27 S. Ct. 74. 593-75a. Determination of question. — Vandalia R. Co. v. South Bend, 207 U. S. 359, 367, 52 L. Ed. 246, 28 S. Ct. 130. 593-78. Additional tax as impairing con- tract, etc. — Questions respecting the im- pairment of contract obligations and the denial of due process of law because of the additional burden of taxation to which the citizens and taxpayers of a lesser city, annexed under the authority of Act Pa. Feb. 7, 1906, §§ 1-9 (P. L. 7-11), to an ad- joining and larger city, will be subjected, are not so unsubstantial and devoid of all color of merit as to require the dismissal of a writ of error from the supreine court of the United States to a state court. Judgment, In re City of Pittsburg, 66 A. 348, 217 Pa. 227; Appeal of Hunter, Id., affirmed. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. Grounds for forfeiting corporate fran- chise. — Contentions that immunities se- cured by Const. U. S. Amend. 14, are violated by a decision of a state court, that forfeiture of a corporate franchise may be declared for nonuser, and by its ruling, following its conception of the rules of pleading, that the charges of non- user contained in an information in the nature of quo warranto stand as confessed under the pleadings, so as to sustain a motion for final judgment of ouster, are too frivolous to serve as the basis of a writ of error from the federal supreme court to a state court. Delmar Jockey Club T'. Missouri, 210 U. S. 324, 52 L. Ed. 1080, 28 S. Ct. 732. Validity of condemnation proceedings. — A writ of error to a state court to re- view a judgment of its highest court, af- firming a judgment of a lower court in that state condemning for public use land in- cluded in the Utah enabling act, over the objection that the legal title was in the United States when the proceedings were begun, will be dismissed for want of juris- diction. Box Elder Power, etc., Co. v. Brigham, 220 U. S. 603, 55 L. Ed. 604, 31 S. Ct. 716, citing Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 308, 47 L. Ed. 480, 23 S. Ct. 375; Farrell v. O'Brien, 199 U. S. 89, 100, 50 L. Ed. 101, 25 S. Ct. 727; Kaufman & Sons Co. V. Smith, 216 U. S. 610, 54 L- Ed. 636, 30 S. Ct. 419. Validity of statute providing for venue of suit against corporations. — A writ of error to the highest state court to review its judgment affirming, after ordering a remission of part of the damages, a judg- ment of the lower court in that state in favor of the plaintiff in an action for libel, in which the corporate defendant asserted the invalidity, under the due process of law and the equal protection of the laws, clauses of the 14th amendment to the fed- eral constitution, of a state statute provid- ing that suits against corporations may be commenced either in the county where the cause of action accrued, or in any county where such corporation shall have or usually keep an office or agent for the transaction of their usual or customary liusiness, will be dismissed for want of ju- risdiction. Globe Printing ,Co. v. Cook, 220 U. S. 603, 55 L. Ed. 604, 31 S. Ct. 717, citing Farrell v. O'Brien, 199 U. S. 89, 100, 50 L. Ed. 101, 25 S. Ct. 727; Kaufman & Sons Co. V. Smith, 216 U. S. 610, 54 L. Ed. 636, 30 S. Ct. 419; Waters-Pierce Oil Co. z: Texas, No. 2, 212 U. S. 112, 116. 53 L. Ed. 431, 29 S. Ct. 227; Kansas City Star Co. v. Julian, 215 U. S. 589, 590, 54 L. Ed. 340, 30 S. Ct. 406. Suit to set aside decree of foreclosure. — A writ of error to the state court to re- view a decree of its highest court affirm- ing the decree in a lower court of the state in favor of defendants in a suit to set aside certain foreclosure decrees for want of ju- risdiction, fraud, and certain irregularities in the proceedings will be dismissed for frivolousness. Venner v, Denver Union Water Co., 219 U. S. 583, 55 L. Ed. 346, 31 S. Ct. 472. Damages for removing timber from state lands. — A writ of error to the high- est state court to review a judgment re- versing a judgment of the trial court and awarding damages to the state for remov- ing timber from state lands after the expi- ration of a permit, will be dismissed for want of jurisdiction, although it is con- tended upon rehearing that such judg- ments violated the due process law, equal protection of the laws, and contract clauses of the federal constitution, and took prop- 'erty without compensation. Rat Portage Lumber Co. v. Minnesota, 220 U. S. 606, 55 L. Ed. 606, 31 S. Ct. 718, citing First Nat. Bank 7;. City Council, 215 U. S. 341, 346, 54 L. Ed. 223, 30 S. Ct. 152; Rogers 78 Vol. I. APPEAL AND ERROR. 593-601 Where federal questions clearly presented in the answer in the state court and the decree could not have been made without deciding them, they are sub- stantial and important."^'' Limitation of General Rules. — See note 88. (lOj Time and Manner of Shoiving Existence of Federal Question — aa. In General. — See note 2. ^^ bb. Must Be "Specially Set Up or Claimed" — aaa. In General. — See note 9. V. Clark Iron Co., 217 U. S. 589, 54 L. Ed. 895, 30 S. Ct. 693; Farrell v. O'Brien, 199 U. S. 89, 100, 50 L. Ed. lOl, 25 S. Ct. 727; Griffith V. Connecticut, 218 U. S. 563, 571, 54 L. Ed. 1151, 31 S. Ct. 132; St. Paul Gas Light Co. V. St. Paul, 181 U. S. 142, 151, 45 L. Ed. 788, 21 S. Ct. 575. Suit to quiet title. — Error to a state court to review a decree dismissing a pe- tition in one suit to quiet title, and grant- ing the relief sought in another such suit, will be dismissed as raising a frivolous federal question. Collier v. Smaltz, 223 U. S. 710, 56 L. Ed. 624, 32 S. Ct. 519, citing Hannis Distilling Co. z\ Baltimore, 216 U. S. 2S5, 288, 54 L. Ed. 482, 30 8. Ct. 326; Turner v. New York, 168 U. S. 90, 42 L. Ed. 392, 18 S. Ct. 38; Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365. 593-78a. Where decree necessarily de- cided question. — Wabash R. Co. v. Adel- bert College, 208 U. S. 38, 52 L. Ed. 379, 28 S. Ct. 182. 596-88^ . Limitations of general rule. — ■ It is not necessary to lay the foundation for jurisdiction that the claims of federal rights asserted sliould be well founded; it is enough if they are substantial claims of federal rights within the statute, and such as were duly asserted and directly or necessarily denied in the judgment and decision of the state court. United States V. Ansonia Brass, etc., Co., 218 U. S. 452, 463, 54 L. Ed. 1107, 31 S. Ct. 49. A writ of error to review a judgment of the highest court of a state will not be dismissed on the ground that the federal question relied upon to confer jurisdiction has been so conclusively foreclosed by prior decisions of the federal supreme court as to cause it to be frivolous, where analysis and exposition are necessary in order to make clear the decisive effect of such prior decisions upon the issue pre- sented, and there is some conflict in the opinions of the various state courts of last resort upon the question, and a division of opinion in the court below. Louisville, etc., R. Co. V. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676, affirming judgment (1907), 105 S. W. 366, 127 Ky. 276. The contention that full faith and credit were not given to the judgment of a fed- eral court dismissing an action by a for- eign corporation because of its failure to register within the state before entering into the contract in suit, by a decision of a state court holding that such judgment was not a bar to a second action between the same parties upon the same contract, where the corporation had brought itself within the curative provisions of Act Pa May 23, 1907 (P. L. 205), is not so far friv- olous as not to serve as the basis of a writ of error from the federal supreme court to the state court. West, etc., R. Co. V. Pittsburgh Constr. Co., 219 U. S. 92. 55 L. Ed. 107, 31 S. Ct. 196, affirming judgment Pittsburg Const. Co. v. West Side Belt R. Co. (1910), 75 A. 1029, 227 Pa. 90. 599-2. Time and manner of showing question. — An affidavit in support of a pe- tition for rehearing in the highest state court, stating that, in the brief as well as upon oral argument, a specified federal question had been presented and discussed, will not support a wrif of error from the federal supreme court, where the state court denied the petition, with the state- ment that no federal question had been raised in that court, which may be con- strued as denying that any such matter was brought to its attention, as stated in the affidavit, or as holding that it presented no federal question. Judgment (1907) St. John V. Andrews Institute for Girls, 102 N. Y. S. 808, 117 App. Div. 698, af- firmed. Smithsonian Institution v. St. John, 214 U. S. 19, 53 L. Ed. 892, 29 S. Ct. 601. 601-9. A right or immunity under a stat- ute of the United States is "specially set up and claimed" in the state court within the meaning of U. S. Rev. Stat., § 709, U. S. Comp. Stat. 1901, p. 575, where a rail- road company insists, throughout garnish- ment proceedings brought against it for charges in excess of a special rate en- tered into with the garnishment debtor alone, that no recovery could be had against it consistently with the interstate commerce act, as, in disregarding the agreement for the special rate, it only con- formed to the provisions of such act gov- erning rates to be applied to interstate shipments. "This was an adequate asser- tion of a right or immunity under that act, for it named the act, indicated wherein it was claimed to be applicable, and invoked its protection. Nutt v. Knut. 200 U. S. 12. 50 L. Ed. 348. 26 S. Ct. 216; Texas, etc., R. Co. V. Abilene, etc., Oil Co.. 204 U. S. 426. 51 L. Ed. 553, 27 S. Ct. 350." Kansas City, etc., R. Co. v. .Mbers Comm. Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. r9 606-619 APPEAL AND ERROR. Vol. I. General Allegations. — See note 20. ee. Certificate of Presiding Judge of State Court— ddd. Weight and Suffi- ciency. — See note 57. * iL Time of Claiming Federal Question— 2.2.2.. In General— "^ht appellate jurisdiction of the federal supreme court over a state court cannot be based upon the supposed denial of a federal right which was not urged in the trial court, or called to the attention of or decided by the state appellate court.^^^ The objection that no federal right was "specially set up and claimed" within the meaning of Rev. St. U. S., § 709 [U. S. Comp. .St. 1901, p. 575], governing the appellate jurisdiction of the federal supreme court over state courts, can not successfullv be maintained, where judicial proceedings in New Jersey were clearly relied upon in New York by executors in an "appeal to the surrogate" as a defense to the assessment of the New York transfer tax, although such right was not in terms stated to be one claimed under the federal constitution, especially where the constitutional right was specifically claimed in writing while the surrogate still had the "appeal" under consideration, and its denial was made the subject of exceptions.®^'' aaa)^. In Assignments of Error in Federal Supreme Court. — It is too late to raise the federal question for the first time in the assignments of error in the federal supreme court.®^^ 606-20. General allegations. — A conten- tion that certain instructions to the jury in a criminal case in effect deprived the accused of his liberty without due process of law does not, of itself, raise a federal question, under Const. U. S. Amend. 14, with sufficient distinctness to sustain a writ of error from the federal supreme court to a state court. Thomas v. Iowa, 209 U. S. 258, 52 L. Ed. 782, 28 S. Ct. 487. Something more than a vague and in- ferential suggestion of a right under the constitution of the United States must be presented to the state courts to give us the limited authority to review their judg- ments, which exists under the constitu- tion and is regulated by § 709, Rev. Stat. A mere claim in the court below, that there has been a denial of due process of law, does not of itself raise a federal ques- tion with sufficient distinctness to give us jurisdiction to consider whether there has been a violation of the fourteenth amend- ment of the constitution. Thomas v. Iowa, 209 U. S. 258, 263, 52 L. Ed. 782, 28 S. Ct._487. Assignments of error which simply al- lege in various forms that the state court erred in its decision of the cause present no federal question for consideration bj' the supreme court of the United States on a writ of error to the state court. Stick- ney v. Kelsey, 209 U. S. 419, 52 L. Ed. 863. 28 S. Ct. 508. 617-57. Weight and sufficiency of cer- tificate. — The certificate of the chief jus- tice of the highest court of a state can not cure the entire failure of the record to show that a federal question was so raised and decided as to sustain a writ of error from the supreme court of the United States.' Seaboard Air Line Railway v. Du- vall, 225 U. S. 477, 56 L. Ed. 1171, 32 S. Ct. 790. "Such a certificate is, however, not suf- ficient to confer jurisdiction to review the judgment of a state court under § 709, Rev. Stat. (U. S. Comp. Stat. 1901, p. 575). That there was set up and denied some claim or right under the constitution or a statute of the United States must appear upon the record; and such certificate is only of value to make more definite or certain that the federal right was definitely asserted and decided. Sayward v. Denny, 158 U. S. 180, 183, 39 L. Ed. 941, 15 S. Ct. 777; Louisville, etc., R. Co. v. Smith, etc., Co., 204 U. S. 551, 51 L. Ed. 612. 27 S. Ct. 401." Seaboard Air Line Railway v. Du- vall, 225 U. S. 477, 56 L- Ed. 1171, 32 S. Ct. 790. 619-64a. Time of claiming federal ques- tion. — Cincinnati, etc., R. Co. v. Slade, 216 U. S. 78. 54 L. Ed. 390. 30 S. Ct. 230. 619-64b. Claiming right while surro- gate had "appeal" under consideration. — Order, In re Tilt's Estate (1905) 75 N. E. 1134, 182 N. Y. 557. reversed. Tilt v. Kel- sey, 207 U. S. 43. 52 L. Ed. 95, 28 S. Ct. 1. 619-65a. In assignment of error in fed- eral supreme court. — Thomas v. Iowa. 209 U. S. 258, 52 L. Ed. 782, 28 S. Ct. 487. _ A federal question which will sustain a writ of error from the federal supreme court to a state court can not be first raised in the assignment of errors in the federal court. Mailers v. Commercial Loan, etc., Co., 216 U. S. 613, 54 L. Ed. 638, 30 S. Ct. 438. To lay the foundation for right to re- view a judgment of a state court it is nec- essary to bring the federal question in some proper manner to the consideration of the state court whose judgment it is 80 Vol. I. APPEAL AND ERROR. 623-627 iii. Oil Second Appeal. — See note 79. kkk. /;/ Petition for Writ of Error to This Court. — See note 83. mmm. In Petition for Rehearing — aaaa. In General. — See note 86. bbblx Qualifications of General Rule. — See note 92. sought to review; if this is not done, the federal question can not be originated by assignments of error in the federal su- preme court. If the federal right asserted comes within the third class named in § 709, Rev. Stat., wherein a right, title, priv- ilege or immunity is claimed under the United States, and the decision is against such right, title, privilege or immunity. The statute requires that such right or privilege must be specifically set up and claimed in the state court. Chesapeake, etc., R. Co. V. McDonald, 214 U. S. 191, 192, 53 L. Ed. 963, 29 S. Ct. 546. The assignments of error in the federal supreme court can not cure the failure of the record in the state court to show that a question w^as there raised and decided of the character described in Rev. Stat., § 709 (U. S. Comp. St. 1901, p. 575), govern- ing writs of error from the federal su- preme court to a state court. Appleby v. Buffalo, 221 U. S. 524, 55 L. Ed. 838, 31 S. Ct. 699, affirming judgment (1907) In re City of Bufifalo, 81 N. E. 954. 189 N. Y. 163. and which reverses (1906) 101 N. Y. S. 966. 623-79. On second appeal. — The federal supreme court has no jurisdiction or a writ of error to a state court in a case in 'which the only suggestion that a federal ques- tion was involved was put forward after the highest state court had affirmed, on a second appeal, a judgment rendered by the court below in strict obedience to its man- date, compliance with such mandate be- ing, in fact, the only question open to and determined by the highest court. Bonner V. Gorman, 213 U. S. 86, 53 L. Ed. 709, 29 S. Ct. 483. 624-83. It is too late to raise the federal question for the first time in the petition for writ of error from the federal supreme court. Thomas v. Iowa. 209 U. S. 2'58, 52 L. Ed. 782. 28 S. Ct. 487. 624-86. In petition for rehearing. — "This court has decided many times that it is too late to raise a federal question for the first time in a petition for rehearing in the court of last resort of a state after that court has pronounced its final decision. * * * It is true that we have also decided that if the court entertains the motion and passes on the federal question, we will re- view its decision." MsCorquodale z\ Texas, 211 U. S. 432. 437. 52 L. Ed. 269, 29 S. Ct. 146; Missouri Pac. R. Co. v. Lessen- den, 225 U. S. 696, 56 L- Ed. 1262. 32 S. Ct. 838, citing Waters-Pierce Oil Co. r. Texas. No. 2, 212 U. S.- 112, 118. 53 L. Ed. 431, 29 S. Ct. 227. Where a federal question was raised for the first time on petition for rehearing in the supreme court of the state and that court declined to pass on it, writ of error dismissed. Clay Center Elect., etc., Co. V. Clay Center, 212 U. S. 564. 53 L. Ed. 653, 29 S. Ct. 690. 627-92. Qualification of rule.— It has been many times held in the federal su- preme court that an attempt to introduce a federal question into the record for the first time by a petition for rehearing is too late. There is an exception to this rule when it appears that the court below en- tertained the motion for rehearing, and passed upon the federal question. But it must appear that such federal question was in fact passed upon in considering the motion for rehearing; if not, the general rule applies. Eorbes v. State Council, 216 U. S. 396, 399, 54 L. Ed. 534, 30 S. Ct. 295. The federal supreme court has jurisdic- tion of a writ of error to the highest state court in a case in which federal questions were first raised by a petition for rehear- mg, where the court entertained the peti- tion and decided the question so pre- sented. Illinois Cent. R. Co. v. Kentucky, 218 U. S. 551, 54 L. Ed. 1147, 31 S. Ct. 95, affirming judgment (1908) 108 S. W. 245, 128 Ky. 268. A federal question was raised in time to sustain a writ of error from the su- preme court of the United States to a state court, where it was distinctly pre- sented in a petition to the state court for a rehearing, was considered by that court, and was decided adversel)'- to the plaintifif in error. Judgment (Tex. Civ. App. 1906) 95 S. W. 645, affirmed. Sullivan v. Texas, 207 U. S. 416, 52 L. Ed. 274. 28 S. Ct. 215. A federal question first raised by a peti- tion for rehearing in the highest state court is open for review in the federal su- preme court on writ of error to the state court, if that court considered such ques- tion in denying the petition. Kentucky Union Co. v. Kentuck,v. 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171, affirming judg- ments (1907) 106 S. W. 260, 127 K}'. 667, and (1908) 108 S. W. 931, 128 Ky. 610, 111 S. W. 362, 33 Ky. Law Rep. 857. An order of the highest state court, made in passing upon a petition for re- hearing, which recites that, "on mature consideration," the prayer of said petition is denied, does not show that the court passed upon the federal questions first raised by such petition, so as to sustain a writ of error from the supreme court of the United States. Forbes v. State Coun- 12 U S Enc— 6 81 628-640 APPEAL AND ERROR. Vol. I. 000. Raising Federal Question for First Time in This Court. — See note 97. q. Decisions Reviezvuble — (2 1/5) Denial of Defenses Claimed under Stat- utes of Territories.— Where suit is brought in a state court, a claim of defeiise under the provisions of a territorial statute is a claim of federal right, which, when adversely adjudicated, gives jurisdiction to the federal supreme court to review the judgment.^^^ Thus, a claim of immunity under a territorial act, because of the failure of the plaintiff in error to comply with its provisions as to the affidavit within ninety days, etc., presents a federal question within the meaning of § 709 of the Revised Statutes.^sb (2 2/5) Claim of Right under Safety Appliance Act. — Whether or not leg- islative power is unconstitutionally delegated to the American Railway Asso- ciation and the Interstate Commerce Commission by the provision of? Safety Appliance Act March 2, 1893, c. 196, § 5, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), that, after a date named, only cars with drawbars of uniform height shall be used in interstate commerce, and that the standard shall be fixed by the association and declared by the commission, is a federal question within the meaning of Rev. St. U. S., § 709 (U. S. Comp. St. 1901, p. 575). governing writs of error from the supreme court of the United States to state courts. ^■^'= (2 3/5) Denial of Rights under the Copyright Laivs. — A decision of a state court enforcing the exclusive common-law performing rights of the owners of an unprinted and unpublished play as against the owner of a copyrighted adap- tion substantially identical with the original play, who stood upon his copyright, denies a federal right specially set up and claimed, within the meaning of U. S. Rev. Stat., § 709, U. S. Comp. Stat. 1901. p. 575, governing writs of error from the federal supreme court to state courts.'*^'' cil. 216 U. S. 396. 54 L. Ed. 534, 30 S. Ct. 295. An order of the highest court of a state, on a motion for rehearing, reciting that the cause came on to be heard on such motion, and, "the same being considered by the court, said motion is overruled," does not show that the court passed on the federal question first raised by such pe- tition. McCorquodale v. Texas, 211 U. S. 432, 53 L. Ed. 269, 29 S. Ct. 146. 628-97. Where a federal question is raised for the first time in the federal su- preme court it is too late. Rogers v. Clark Iron Co., 217 U. S. 589, 54 L. Ed. 895, 30 S. Ct. 693. 640-45a. Defenses claimed under stat- utes of territories. — El Paso, etc., R. Co-. V. Gutierrez. 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. following Atchison, etc., R. Co. v. Sowers, 2J3 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. 640-45b. Claim of immunity under ter- ritorial act. — El Paso, etc., R. Co. z-'. Gu- tierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. A claim by a railway in a state court of immunity from liability for the negligent killing of an employee in the territory of New Mexico because of noncompliance with the requirements of a statute of that territory governing actions for personal injuries received therein presents a federal question within the meaning of Rev. St. U. _S.. § 709 (U. S. Comp. St. 1901, p. 575), which, when adversely adjudicated, con- fers jurisdiction on the federal supreme court of a writ of error to the state court. Judgment, Gutierrez v. El Paso & N. E. R. Co. (Tex.), 117 S. W. 426, affirmed. El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. A judgment of the Texas supreme court, which, reversing the judgment of the court of civil appeals of that state, affirmed the judgment of the trial court entered on a verdict in favor of the plaintiff in an ac- tion against a railway company for the negligent killing of an employee in the territory of New Mexico, is reviewable in the federal supreme court, as necessarily deciding against a federal right specially set up, within the meaning of Rev. St. U. S.. § 709 (U. S. Comp. St. 1901, p. 575), where the trial court sustained a demur- rer to a plea setting up a defense under a statute of the territory, which, if appli- cable, was a complete bar to the action, because of noncompliance with its require- ments, although the decision of the state supreme court proceeded upon the theory that the case was controlled by the federal employers' liability act, which it held to be valid. El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. 640-45C. Right under Safety-Appliance Act. — Judgment, St. Louis. T. M. & S. Ry. Co. V. Neal (1906) 98 S. W. 958. 83 Ark. 591, reversed. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061. 28 S. Ct. 616. 640-45d. Right under copyright law. — • Eerris v. Frohman, 223 U. S. 424, 56 L. Ed. 492, 32 S. Ct. 263. 82 Vol. I. APPEAL AND ERROR. 640-643 (2 4/5) Denial of Riglits under Federal Incorporation Act. — Where on a writ of error to a state court the right or privilege alleged to have been denied by the state court is claimed in virtue of the authority to incorporate conferred by the general incorporation act of May 5, 1870, enacted by congress, this con- stitutes a right or privilege claimed under an authority exercised under the United States, which is reviewable by the federal supreme court by virtue of the provisions of § 237 of the new Judicial Code.'*-'''' (4) Denial of Rights nndcr National Bank Act — bb. Showing as to Juris- diction. — See note 51. (5) Denial of Rights under Bankrupt Act. — See note 53. 640-45e. Rights under Federal Incorpo- ration Act. — Creswill v. Grand Lodge Knights, 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822, citing Dupasseur v. Rochereau, 21 Wall. 130, 22 L. Ed. 588; Embry v. Pal- mer, 107 U. S. 3, 27 L. Ed. 346, 2 S. Ct. 25; Ferris v. Frohman, 223 U. S. 424, 431, 56 ,L. Ed. 492, 32 S. Ct. 263; 36 Stat, at L- 1156, chap. 231, U. S. Comp. Stat., Supp. 1911. p. 227, § 709 U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 575. The right of a fraternal order to the use of its corporate name, and the incidental right to use the distinctive words in such name to designate the order, and to use the appropriate insignia, emblems, etc., when invoked in virtue of the authority to incorporate conferred by the Federal Gen- eral Incorporation Act of May 5, 1870 (16 Stat, at L. 98, chap. 80), is claimed under an authority exercised under the United States vi'ithin the meaning of U. S. Rev. Stat., § 709, U. S. Comp. Stat. 1901, p. 575, Judicial Code (36 Stat, at L. 1156, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 227), § 237, governing writs of error from the federal supreme court to state courts. Creswill v. Grand Lodge Knights, 225 U. S. 246. 56 L. Ed. 1074, 32 S. Ct. 822. "The fact that corporations created by the general law of 1870 and the special act of congress of 1894, heretofore referred to, derived their rights and powers under a law of the LTnited States, is recognized in the following cases which were removed from state courts- Knights of Pythias 7' Kalinski, 163 U. S. 289, 41 L. Ed. 163, 16 S Ct. 1047; Knights of Pythias v. Withers 177 U. S. 260, 44 L. Ed. 762, 20 S. Ct. 611 and Pythias Knights' Supreme Lodge 7' Beck, 181 U. S. 49, 45 L. Ed. 741, 21 S. Ct 532." Creswill v. Grand Lodge Knights 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822 642-51. Valuation of national bank stock for taxation. — Objections to the valuation of national bank stock for taxation, as be- ing in excess of the actual value, exorbi- tant and unjust, and not in proportion to other like personal property, but grossly in excess thereof, and constituting unfair and unequal taxation, do not raise anyfed- eral question which will sustain a writ of error from the federal supreme court to a state court, where no mention of the na- tional bank act was made, nor of any right or privilege claimed under it, and the pro- visions of the United States Revised Stat- utes were not invoked, by name or other- wise, and there was no assertion that the local statutes under which the assessment was made were repugnant to the terms of Rev. St., § 5219 (U. S. Comp. St. 1901, p, 3502), or to the federal constitution. First Nat. Bank v. City Council. 215 U. S. 341, 54 L. Ed. 233, 30 S. Ct. 152. 643-53. Title or right claimed under bankrupt laws. — The decision of the high- est state court that a trustee of a bank- rupt partnership can avoid a preference under the state law, without ascertaining the existence of creditors of the individual estate, does not rest on a nonfederal ground so as to defeat appellate jurisdic- tion of the federal supreme court. Judg- ment (1906) New Orleans Acid & Fertili- zer Co. V. O. Guillory & Co., 42 So. 329, 117 La. 821, affirmed. Miller v. New Orleans, etc.. Fertilizer Co., 211 U. S- 496, 53 L. Ed. 300, 29 S. Ct. 176. The right to have a review in the fed- eral supreme court of a judgment of a state court in which the defeated party set up the pendency of bankruptcy pro- ceedings as a bar to the action, and fur- ther relied upon an injunction issued out of the bankruptcy court, undertaking to sta^- the proceedings in the state court, and also contended that the proper con- struction of the bankruptcy act precluded the state court from taking jurisdiction, can not be defeated by the finding- of the state court as a matter of fact that the bankruptcy proceedings had been con- cluded by denial of the adjudication in bankruptcy and an abandonment of the proceedings. Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 56 L. Ed. 208. 32 S. Ct. 96, affirming judgment (1908) Beekman Lumber Co. r. Acme Har- vester Co., 114 S. W. 1087. 215 Mo. 221. A judgment of a state court adverse to the plaintiff in an action in which he spe- cially set up a title acquired by a purchase of property from a trustee in bankruptcy, under the sanction of the bankruptcy court, does not involve a decision of the federal aucstion so set up which will sus- tain a writ of error from the supreme court of the United States, where the state court rests its judgment solely upon the ground 83 647-651 APPEAL AND ERROR. Vol. I. (6) Denial of Right to Remove Causes to Federal Courts — aa. In General. — See note 55. (7) Denial of Full Faith and Credit to Judgments, Records and Judicial Pro- ceedings of Sister States.— See notes 66, 68, 71, 79, 83. that, being- a purchaser pendente lite from the trustee, he ^vas bound by a decree ren- dered against the trustee in a suit brought by him in equity to set aside certain bills of sale executed by the bankrupt, cover- ing the same property. Kenney v. Cra- ven, 215 U. S. 125, 54 L. Ed. 122, 30 S. Ct. 64. 647-55. Right to remove causes to ied- eral courts. — A question of a federal na- ture which will sustain a writ of error from the federal supreme court to a state court was raised by the contention, denied by the state court, that a right or privi- lege existed under a statute of the United States to remove the cause to a federal circuit court. Judgment (1908) 95 P. 457, 20 Okl. 274, affirmed. Williams r. First Nat. Bank, 216 U. S. 582, 54 L. Ed. 625, 30 S. Ct. 441. The refusal by an inferior state court of an application to remove a cause to a fed- eral circuit court presents no federal ques- tion which will sustain a writ of error un- der U. S. Rev. Stat., § 709, U. S. Comp. Stat. 1901, p. 575, from the supreme court of the United States, to review a judgment of the highest state court, affirming the judgment below, where there is nothing- in the record to indicate that the question of the right of removal was brought to the attention of the highest state court, and that court could not have considered the question even if presented, because, at the time the appeal from the final judg- ment was taken, it was too late to review the order refusing the removal. Chesa- peake, etc.. R. Co^z\ McDonald, 214 U. S. 191, 53 L. Ed. 963, 29 S. Ct. 546. No real federal question which will sup- port a writ of error from the federal su- preme court to a state court is raised by the contention that the state court denied a federal right in overniling an application to remove the cause to a federal circuit court, where the granting of such applica- tion would have necessitated the aligning on the side of the plaintiff, in a suit founded on an express trust, a trustee who was charged with a repudiation of his ob- ligations as trustee by a refusal to apply the trust funds as required by the trust agreement, and as to whom not only was an accounting asked and an injunction prayed to prevent him from disposing of the trust property, but his removal as trustee was also sought. Gerald f. Thomp- son, 222 U. S. 555, 56 L. Ed. 314, 32 S. Ct. 185. 650-66. Full faith and credit — Sister states. — When a party asserts that due faith and credit have not been given to a judgment rendered in an action between him and the other party he asserts a right under the constitution of the United States, and necessarily this raises a federal question. West, etc., R. Co. v. Pittsburgh Constr. Co., 219 U. S. 92, 99, 55 L. Ed. 107, 31 S. Ct. 196. That a federal question is presented is not open to doubt where the contention is that one state has not given full faith and credit to the public acts, records and judi- cial proceedings of a sister state. Brown V. Fletcher, 210 U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702, following Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, 13 S.Ct. 224. The federal supreme court has jurisdic- tion of a writ of error sued out to review the decision of a state court adverse to the contention that no recovery against the plaintiff in error can be had if the judg- ment of a court of a sister state be given the full faith and credit to which it is en- titled under the constitution and laws of the United States. American Exp. Co. v. Mullins, 212 U. S. 311, 53 L. Ed. 525, 29 S. Ct. 381. 651-68. Principles of general law. — No refusal by the courts of one state to give full faith and credit to the judgment of that of another is shown, so as to give the supreme court of the United States juris- diction to review their final judgment dis- missing, because such judgment deter- mined the question of the legality of her marriage against her, a proceeding by a wife to set aside a judgment annulling her marriage, where it appears that such other court, being a court of competent jurisdic- tion, and having jurisdiction of the parties and the subject-matter, dismissed a suit by her for separate maintenance while she was living apart from her husband for al- leged justifiable cause, in which the de- fense was that she never became the wife of defendant, because, at the time of her alleged marriage to him, she had a hus- band living, which allegation was sup- ported by evidence at the hearing, al- though the dismissal might have been merely upon the ground that she was not justified in living apart from him, if she made no attempt to prove that it was in fact upon such ground. Everett 7'. Ever- ett. 215 U. S. 203, 54 L. Ed. 158.30 S. Ct. 70. A decision of a state court in an action founded on a statute of another state creating an action for death, qualified by a one-year's limitation, that the failure to plead the statute in the complaint was cured by its inclusion in the answers, filed more than one year after the death, pre- sents no question as to the full faith and 84 Vol. I. APPEAL AND ERROR. 651-664 (7>^). Denial of Full Faith and Credit to Judgments of Courts of Foreig^n. States and Nations. — Section 709 of the Revised Statutes giving an appeal to the federal supreme court from a judgment or decree in any suit in the highest court of the state where any title, right, privilege or immunity is claimed under the constitution and denied, can not be invoked so as to review a denial of full faith and credit by a state court to the judgments of foreign states and na- tions. s*^^ (17) Denial of Due Process of Lazsj or Equal Protection of the Lazvs — aa. In General. — See note 19. credit to be given such statute, so as to sustain a writ of error from the federal supreme court, but involves nothing more than a question of local pleading and prac- tice. Texas, etc.. R. Co. z\ :\Iiller, 221 U. S. 408. 55 L. Ed. 789, 31 S. Ct. 534, affirm- ing judgment (Tex. Civ. App. 1910) 128 S. W. 1165; Texas, etc., R. Co. v. Gross. 221 U. S. 417, 55 L. Ed. 796, 31 S. Ct. 536, af- firming judgment (Tex. Civ. App. 1910) 128 S. W. 1173. 651-71. Construction of state statutes. — A decision of a state court sustaining the validity of a statute of another state, which is asserted to violate the constitution of that state, does not necessarily involve a decision respecting the full faith and credit to be given such constitution, so as to sustain a writ of error from the federal supreme court, where the state court did not question the validity of the state con- stitution, but held that the statute was not repugnant to it. Judgment (1907) St. 'John v. Andrews Institute for Girls, 102 N. Y. S. 808, 117 App. Div. 698, affirmed. Smith- sonian Institution v. St. John, 214 U. S. 19, 53 L. Ed. 892, 29 S. Ct. 601. The exercise by a state court of its in- dependent judgment in interpreting the statute of another state upon which the cause of action is based can present no question under the full faith and credit clause of the federal constitution for re- view in the federal supreme court by writ of error to a state court, where there is no local statute controlling the construction of statutes of other states, and no settled construction of the statute by the courts of the state enacting it is pleaded or proved. Louisville, etc., R. Co. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676. 653-79. Determination of question. — Whether the provisions of Act Pa. May 23, 1907 (P. L. 205). validating contracts of foreign corporations, extended to a con- tract which had previously been adjudged invalid by a federal court because of the corporation's failure to register v^ithin the state before entering into such contract, Mnll be determined by the federal supreme court for itself on a writ of error to a str.te court, presenting the question whether full faith and credit were given to such judg- ment by the decision of the state court that it was not a bar to a second action between the same parties on the same contract, after the corporation had brought itself within the terms of such statute. West, etc., R. Co. v. Pittsburgh Constr. Co., 219 U. S. 92, 55 L. Ed. 107, 31 S. Ct. 196, affirming judgment Pittsburgh Const. Co. c'. West Side Belt R. Co. (1910) 75 A. 1029. 227 Pa. 90. 654-83. Showing as to jurisdiction. — The full faith and credit clause of the fed- eral constitution must be pleaded, or the attention of the court below directed to the fact that, in connection with the proper construction of a statute of another slate, reliance was placed upon that clause, in order to present a federal question for re- view in the federal supreme court by writ of error to a state court. Louisville, etc., R. Co. V. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676. affirming judgment (1907) 105 S. W. 366, 127 K}-. 276. 654-86a. Full faith and credit — Foreign states. — ^tna Life Ins. Co. v. Tremblay, 223 U. S. 185, 56 L. Ed. 398, 32 S. Ct. 309. Judgments of Canadian courts. — The contention that* full and proper faith and credit were not given to a judgment of a Canadian court by a decision of a state court does not involve a federal question which will support a writ of err-^ir from the federal supreme court. ^tna Life Ins. Co. v. Tremblay, 223 U. S. 185, 56 L. Ed. 398, 32 S. Ct. 309. 664-19. Former jeopardy. — A specific contention on the trial of a criminal cause in a state court that the denial to the ac- cused of the benefit of his plea of former jeopardy operates to deprive him of his liberty without due process of law, con- trary to const. U. S. Amend. 14, raises a federal question which will sustain a writ of error from the federal supreme court to review the judgment of the highest court of the state, affirming the conviction. Judgment (1906) 85 P. 862. 33 Mont. 501, affirmed. Keerl v. Montana, 213 U. S. 135, 53 L. Ed. 734, 29 S. Ct. 469. The contention that a second conviction of a public officer for failing, on demand, to pay over certain public moneys, de- prives him of his liberty without due proc- ess of law, in violation of U. S. Const.. 14th Amend., by twice subjecting him to jeop- ard}^ for the same oflfense. presents no federal question which will sustain a writ of error from the federal supreme court to the highest court of a state, where the 85 672-677 APPEAL AND ERROR. Vol. I. jj. Showing as to Jurisdiction. — See note 42. (19) Denial of Rights under the Commerce Clause of the Constitution. — See note 58. latter court decides that the accused was not put in jeopardy by his prior convic- tion, because such conviction was re- versed on the ground that there had then been no legal demand. Shoener v. Com- monwealth, 207 U. S. 188, 52 L. Ed. 163, 28 S. Ct. 110. 672-42. Approval of receivers bond. — The time or manner in which a state court sees fit to approve the bond of a receiver of the property of a corporation convicted of violating the state anti-trust laws pre- sents no substantial federal question un- der Const. U. S. Amend. 14. Waters- Pierce Oil Co. V. Texas, No. 2, 212 U. S. 112, 53 L. Ed. 431, 29 S. Ct. 227. Rights of riparian owners. — Federal questions of serious import, essential to support a writ of error from the federal supreme court, are not involved in con- tentions that riparian owners were denied due process of law or the equal protection of the laws by the decision of a state court awarding a municipality paramount rights in the waters of the stream under Spanish and Mexican laws, confirmed by the United States to the municipality as the successor of a vSpanish pueblo. Los Angeles, etc., Milling Co. v. Los Angeles, 217 U. S. 217, 54 L. Ed. 736, 30 S. Ct. 452. Receiver of foreign corporation. — The contention that a state court, in appoint- ing a receiver of a foreign corporation convicted of violating state anti-trust laws, deprives the corporation of rights under Const. U. S. Amend. 14, does not present a substantial federal question. Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 53 L. Ed. 431, 29 S. Ct. 227. Per cent on loans. — The contention that the exemption of banks or trust com- panies and bona fide mortgages from the operation of Conn. Pub. Acts 1907, c. 238, prohibiting exacting more than 15 per cent on loans, or accepting a note for a greater amount than that actually loaned, with intent to evade this provision, denies the equal protection of the laws guaran- teed by Const. U. S. Amend. 14, is not so clearly lacking in merit as not to serve as the basis of a writ of error from the fed- eral supreme court to a state court. Griffith V. Connecticut, 218 U. S. 563, 54 L. Ed. 1151. 31 S. Ct. 132; S. C, 218 U. S. 572, 54 L. Ed. 1155, 31 S. Ct. 134. Af- firming judgment State v. Griffith, 74 A. 1068, S3 Conn. 1. Disqualification of grand jurors. — A mo- tion to quash an indictment against a ne- gro for disqualification of the grand jurors, who must be electors, because of a change in the state constitution respecting the qualifications of electors, alleged to vio- late Act Cong. June 25, 1868, c. 70, 15 Stat. 73, does not present any question of the denial of a federal right, where there is nothing in the record to show that the grand jury, as actually impaneled, con- tained any person who was not qualified as an elector under the earlier constitu- tion, or was so made up as to exclude negro citizens on account of their race. Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 640, affirming judg- ment in State v. Franklin (1908), 00 S. E. 953, 80 S. Ct. 332. Forfeiture of land under tax laws. — The contention that Const. U. S., Amend. 14, is violated by the provisions of Const. W. Va., art. 13 (Code 1906, p. Ixxxiv), and Code, ch. 105, for the forfeiture to the state of lands not listed by the owner for taxation for five successive years, with lib- erty to the owner to intervene and re- deem, having been decided adversely in a prior decision of the federal supreme court, aflfords no basis for a writ of error from that court to a state court. King v. West Virginia, etc., Lumber Co., 216 U. S. 92, 54 L. Ed. 396, 30 S. Ct. 225. 677-58. The adequacy of the local facili- ties existing at a station at which a through interstate railroad train is required to stop by an order made under state authority, though not inherently a federal question, may be considered by the federal supreme court on writ of error to a state court in so far as the existence of such adequate local facilities is involved in the determi- nation of the federal question as to whether the order does or does not di- rectly regulate interstate commerce. Judg- ment, Railroad Com'rs v. Atlantic Coast Line R. Co. (1906), 54 S. E. 224, 74 S. C. 80, reversed in Atlantic, etc., R. Co. v. Wharton, 207 U. S. 328, 52 L. Ed. 230, 28 S. Ct. 121. Suit to recover excess charges. — A gen- eral finding against a common carrier in garnishment proceedings against it by a creditor of a shipper, to recover charges in excess of a special rate agreed upon, necessarily involves the decision of ques- tions of the interpretation and application of the interstate commerce acts of Feb- ruary 4, 1887 (24 Stat, at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154), and March 2. 1889 (25 Stat, at L. 855, chap. 382, U. S. Comp. Stat. 1901, p. 3158), so as to give the United States supreme court jurisdiction, where such carrier claimed in the state court that the rates collected, though in excess of the special rate agreed on, were the lawful rates applicable to the shipments, as shown by schedules filed 86 Vol. I. APPEAL AND ERROR. 677-678 Powers of State Railroad Commission. — Questions whose determination depends upon the power of a state railroad commission, upon the petition of certain railway companies for the approval of a consolidation, and upon the order of the commission, made on the petition, are local, and not federal, and can not be reviewed on a writ of error from the federal supreme court to a state court.^^^ Showing as to Jurisdiction. — A state court, by resting its decision in a suit to require railway companies to construct their railroad through a speci- fied county seat, and to restrain them from abandoning a portion of the road, upon the ground that the petition by the railway companies to the railroad com- mission for approval of a consolidation, and its order thereon, constituted a binding contract, is not using a mere pretext to avoid the determination of the federal questions arising in the case under the contract and commerce clauses of the federal constitution, where the power of the commission and the effect of its order were necessarily presented by the case.^^a q^ jig question whether the commerce clause of the federal constitution is violated by the provisions of Laws Kan. 1907, c. 250, making it unlawful to sell or deliver black powder for use in any coal mines in the state except in original sealed packages containing 12^ pounds of powder, is not open on a writ of error from the federal su- preme court to review a judgment of the state court refusing a writ of habeas corpus to one convicted of a violation of the state statute, where the latter court refused to consider the contention because the fact of the importation of the package sold from outside the state did not appear at the trial.'^^b q^j-jg ruling of a state court that the power to penalize a railway company for failure to fur- nish cars on demand arose from a state statute instead of from a rule adopted by the railroad commission, which was challenged as repugnant to the federal constitution, does not eliminate the federal questions from the case, so as to require the dismissal of a writ of error from the federal supreme court, where the constitutional defenses asserted by the pleadings and embraced in the in- structions asked and refused were not confined to the mere order as such, but plainly challenged the power of the state to inflict the penalty for the failure to furnish the cars under the circumstances disclosed by the pleadings. ^2"° The decision of a state court sustaining its jurisdiction of a suit against a foreign railway corporation, commenced by attaching a box car belonging to that com- pany, does not involve a ruling upon the company's contention that the levy upon such car was invalid, as burdening interstate commerce, where the court did not pass upon the question whether the levy of the attachment was regular, or whether the property seized was subject to levy, but held, construing the state statutes relating to attachments and the decisions of the highest court of that state, that it was unnecessary to decide those questions, because they had been waived by the conduct of the railway company in giving a replevy bond and answering without protestation.^^a with the interstate commerce commission. upon question. — Williams v. Walsh, 222 Kansas City, etc., R. Co. v. Albers Comm. U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137, af- Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. firming order in Ex parte Williams, 98 P. 316. 777, 79 Kan. 212. 677-59a. Power of State Railroad Com- 678-62c.' Penalizing railway for refusal mission. — Mobile, etc., R. Co. v. Missis- to furnish cars. — Judgment (1907) 107 S. sippi. 210 U. S. 187, 52 L. Ed. 1016, 28 S. W. 1180, 85 Ark. 311, 122 Am. St. Rep. 33, Ct. 650, affirming in 41 So. 259, 89 Miss. reversed in St. Louis, etc., R. Co. v. Ar- 724. kansas, 217 U. S. 136, 54 L. Ed. 698, 30 S. 678-62a. Showing as to jurisdiction. — Ct. 476. Mobile, etc., R. Co. ?■. Mississippi, 210 U. 678-62d. Burdening interstate com- S. 187, 52 L. Ed. 1016, 28 S. Ct. 650, af- merce— Attaching box car.— Cincmnati, firming 41 So. 259, 89 Miss. 724. etc., R. Co. v. Slade, 216 U. S. 78, 54 L. Ed. 678-62b. Where state court did not pass 390, 30 S. Ct. 230. 87 681-686 APPEAL AND ERROR. Vol. I. (24) Claim of Title to Land under United States — aa. In General. — ^See note 68. bb. Construction of Patents. — See note 71. cc. Titles Claimed under Patents Based upon Spanish or Mexican Grants. — • See note 72. 681-68. Claim of title to land under United States. — A judgment of a state court, dismissing a suit founded upon the making and approval of a plat of a town site, although resting in some respects upon the proposition that, under Act Idaho, Jan. 8, 1873 (Laws 1873, p. 16), en- acted pursuant to Rev. St. U. S., § 2387 (U. S. Comp. St. 1901, p. 1457), to pro- vide for the disposal of the land, there was no power given to make a survey or plat which did not conform to the lines of oc- cupation, is reviewable in the federal su- preme court, where the basis of the suit is that the federal laws authorize an of- ficial ascertainment of boundaries; that equitable rights under those laws vest upon condition that the owners, within a reasonable time, have their rights con- firmed by the trustee upon an official sur- vey; and that those laws require each town-site occupant to see that the official ascertainment is true before accepting confirmation. Decree (1907), 90 P. 573. 13 Idaho, 417, affirmed. Scully v. Squier, 215 U. S. 144, 54 L. Ed. 131, 30 S. Ct. 51. Claim of title under Oregon Donation Act. — A decision of the Washington su- preme court adverse to a claim of title founded upon the invalidity, under the Oregon Donation Act of September 27, 1850 (9 Stat. 496, c. 76), of their ances- tors' deed to the territory of Washington, and upon the incapacity of the territory to accept the deed under Act March 2, 1853 (10 Stat. 172, c. 90), by which such terri- tory was organized, is reviewable on a writ of error from the federal supreme court. Judgment (1907), 91 P. 15, 46 Wash. 585, affirmed. Sylvester v. Wash- ington, 215 U. S. 80, 54 L. Ed. 101, 30 S. Ct. 25. Claim of title under United States pat- ents. — The federal question presented by a claim of right and title under a patent from the United States to land within the place limits of the grant made by Act July 1, 1862. c. 120, 12 Stat. 489. and the amend- atory act of July 2, 1864 (13 Stat. 356, c. 216"), in aid of branch railroads, which rests upon the theory that such grant was not one in prjesenti, and that therefore the title did not pass upon completion of the railroads and compliance with the terms and conditions of the grant, but the land remained in the jurisdiction of the land department, which, up to a short time be- fore the execution of the patent, had as- sumed and exercised jurisdiction over controversies respecting the land, is not so frivolous as to require the dismissal of a writ of error from the federal su- preme court to review a decision of a state court against the right or title claimed. Missouri, etc., Land Co. v. Wiese, 208 U. S. 234, 52 L. Ed. 466, 28 S. Ct. 294, affirm- ing judgment in Wiese t'. Union Pac. Ry. Co. (Neb. 1906), 108 N. W. 175; Missouri, etc., Land Co. v. Wrich, 208 U. S. 250, 52 L. Ed. 473, 28 S. Ct. 299, affirming judg- ment in Wrich v. Union Pac. Ry. Co. (Neb. 1906), 108 N. W. 178. 685-71. Construction of patents.— Where the state court merely decides who is en- titled to land under a federal patent the federal supreme court has no jurisdiction. Rogers v. Clark Iron Co.. 217 U. S. 589, 54 L. Ed. 895, 30 S. Ct. 693. 686-72. Riparian rights asserted to have been secured by the treaty of Guadalupe Hidalgo between the United States and Mexico, and Act Cong. March 3, 1851, c. 41, 9 Stat. 631, for the confirmation of titles derived from Spanish and Mexican grants, are not rights of federal origin, which, when denied, lay the basis for a writ of error from the federal supreme court to a state court. Los Angeles, etc., Milling Co. V. Los Angeles. 217 U. S. 217, 54 L. Ed. 736, 30 S. Ct. 452. The assertion that state statutes have undertaken to confer water rights upon a municipality, and were given such efifect in violation of federal rights of riparian owners, can not serve as the basis of a writ of error from the federal supreme court to a state court, where the latter court holds that the municipal rights were not determined by the effect of those statutes, but upon the right and title secured by Spanish and Mexican laws, and the subsequent confirmation thereof under a federal statute. Los Angeles, etc., Milling Co. v. Los Angeles, 217 U. S. 217, 54 L. Ed. 736, 30 S. Ct. 452. Pueblo lands. — The contention that the confirmation of a pueblo claim under Act March 3, 1851, c. 41, 9 Stat. 631. bars the municipal successor to the pueblo for set- ting up water rights not claimed in the petition for confirmation, is too clearly unfounded to support a writ of error from the federal supreme court to a state court. Los Angeles, etc., Milling Co. v. Los Angeles, 217 U. S. 217, 54 L. Ed. 736, 30' S. Ct. 452. Ihe contention that the disposition of the public lands by the United States is interfered with by a judgment awarding a municipality rights in the waters of a stream paramount to those of riparian owners, which rests upon the effect of the 88 \^ol. I. APPEAL AND ERROR. 693-703 (39) Questions Arising under Federal Alining Statutes. — See note 95. (46) Questions Arising under the Public Land Acts. — See note 15. And see ante, "Claim of Title to Land under United States," III, D, 7, q, (24). (50) Federal Statutes Relating to Rivers and Harbors. — The contention that a marine railway which projected beyond the harbor line established by the secretary of war conformably to Act March 3, 1899, c. 425, § 10, 30 Stat. 1151 (U. S. Comp. St. 1901, p. 3541), is illegal and a public nuisance, which the owner of a vessel might wantonly injure or destroy, although such railway was constructed and had been in operation many years before the establishment of such harbor line, is so clearly unfounded as not to serve as the basis of a writ of error from the federal supreme court to review the judgment of a state court adverse to such contention. -"^^ (55) Impairment of Obligation of Contract — aa. In General. — See note 32. Spanish and Mexican laws governing the rights of a pueblo of which the munici- pality is the successor, and the subsequent confirmation thereof under the federal laws, is too clearly unfounded to serve as the basis of a writ of error from the fed- eral supreme court to the state court ren- dering such judgment. Los Angeles, etc.. Milling Co. V. Los Angeles, 2t7 U. S. 217, 54 L. Ed. 736, 30 S. Ct. 452. The question whether the California legislature could enact Act April 2, 1866, ratifying conveyances made by the cor- porate authorities of the city of Monterey of pueblo lands confirmed to that city by the United States, and afterwards patented to it, its successors and assigns, is not so far unsubstantial as to justify dismissal of a writ of error to a state court. Monterey t'. Jacks, 203 U. S. 360, 51 L. Ed. 220, 27 S. Ct. 67, afiirming 73 P._436, 139 Cal. 542. 693-95. Questions arising under federal mining statutes. — The decision of the highest court of a state that the determi- nation of the trial court, based on con- flicting testimony, that the original loca- tors of a mining claim had resumed their assessment work within the meaning of Rev. St. U. S., § 2324 [U. S. Comp. St. 190], p. 1426], before an attempted ad- verse relocation, was conclusive on appeal, does not amount to a denial of the right of relocation claimed under that section, so as to permit a review in the supreme court of the United States on writ of er- ror. Judgment, Emerson v. Yosemite Gold Min. & Mill. Co. (1906), 85 P. 122, 149 Cal. 50, affirmed. Yosemite Gold, etc., Co. 7'. Emerson, 208 U. S. 25, 52 L Ed. 374, 28 S. Ct. 196. 698-15. Admissibility of evidence of lo- cation. — A federal question is presented and decided in ejectment for a tract of land derived by the parties from the United States under two different surveys, by passing adversely on plaintiff's objec- tion to the admission of all evidence bear- ing on the location of the tract in con- troversy other than the field notes of the survej'' under which plaintiffs claimed, and which they contended were the best and only evidence, as by such decision the court passed on the competency and le- gal effect of the evidence as bearing on the effect of the requirements of U S. Rev. Stat., § 2396, U. S. Comp. Stat. 1901, p. 1473, as to the mode of surveying lands. Graham v. Gill, 223 U. S. 643. 56 L Ed. 586, 32 S. Ct. 396. 702-26a. Statutes relating to rivers and harbors.— Gring v. Ives, 222 U. S. 365, 56 L. Ed. 235, 32 S. Ct. 167. 703-32. Impairment of obligation of con- tract. — The question whether a provision in a railway charter exempting the com- pany from liability for the death of any person in its service, even if caused by its negligence, created a contract right protected .against repeal by the contract clause of the federal constitution, is suffi- ciently substantial to sustain a writ of error from the federal supreme court to a state court. Texas, etc., R. Co. v. Miller 221 U. S. 408, 55 L. Ed. 789, 31 S. Ct. 534, affirming 128 S. W. 1165; Texas, etc., R. Co. V. Gross, 221 U. S. 417, 55 L. Ed. 796, 31 S. Ct. 536, affirming in 12S S. W. 1173. If the plaintiff in error sets up a claim of contract upon substantial grounds and with allegations showing an impairment of its obligation by state or municipal leg- islation, a case is presented which may be brought to the federal supreme court in event such legislation was upheld. North- ern Pac. R. Co. V. Duluth, 208 U. S. 583, 590, 52 L. Ed. 630, 28 S. Ct. 341. Municipal legislation carried into effect by mandamus, which requires a railroad company to make repairs in a viaduct at its own expense, in accordance with plans adopted and approved by the municipal council, can not be regarded as a mere repudiation by the municipality of its agreement to maintain the viaduct, so as to defeat the appellate jurisdiction of the supreme court of the United States over a state court, invoked on the ground that contract obligations were thereby im- paired. Judgment, State f. Northern Pac. Ry. Co. (-I906), 108 N. W. 269, 98 Minn. 429, affirmed. Northern Pac. R. Co. 7-. Duluth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341. 8d 703-721 APPEAL AND ERROR. \'ol. I. While errors committed by a state court when passing upon the vahdity or effect of the contract under the laws in existence when it was made imay operate to impair the obhgation of a contract, they do not give rise to a fed- eral question.^ 2a bb. Prior or Subsequent Legislation. — See note 33. kk. Determination as to Validity, Interpretation and Existence of Contract. — See note 54. 11. Showing as to Jurisdiction. — See note 69. Where Decision Rests on Rules of General Law. — See note 72. 703-32a. Errors committed by state court. — Cross Lake Shooting, etc.. Club v. Louisiana, 224 U. S. 632, 56 L. Ed. 924, 32 S. Ct. 577. Mere errors committed by a state court when passing upon the validity and ef- fect of a contract under the laws in ex- istence when it was made can not give rise to a question of the impairment of contract obligations, reviewable in the federal supreme court by writ of error, where no effect has been given to any subsequent legislation, even though the rulings are not m accord with prior de- cisions, on the faith of which the rights in question were acquired. Cross Lake Shooting, etc., Club r. Louisiana, 224 U. S. €32. 56 L. Ed. 924. 32 S. Ct. 577. 706-33. Prior or subsequent legislation. — Only when a judgment of a state court gives effect to subsequent legislation can the federal supreme court review, as pre- senting a question of the impairment of contract obligations, its decision holding invalid, under the state constitution, a state law which is alleged to constitute a contract. Judgment (1906), 41 So. 259. 89 Miss. 724. affirmed. Mobile, etc., R. Co. V. Mississippi, 210 U. S. 187, 52 L. Ed. 1016. 28 S. Ct. 650. "When the state court, either expressly or by necessary' implication, gives effect to a subsequent law of the state whereby the obligation of the contract is alleged to be impaired, a federal question is pre- sented. In such a case it becomes our duty to take jurisdiction and to determine the existence and validity of the contract. . what obligations arose from it, and whether they are impaired by the subse- quent law. But if there be no such lav/, or if no effect be given to it by the state court, we can not take jurisdiction, no matter how earnestly it may 1)e insisted that that court erred in its conclusion re- specting the validity or effect of the con- tract; and this is true even where it is as- serted, as it is here, that the judgment is not in accord with prior decisions on the faith of v/hich the rights in question were acquired." Cross Lake Shooting, etc., Club 7,'. Louisiana. 224 U. S. 632, 56 L. Ed. 924, 32 S. Ct. 577. A decree of a state court avoiding a con- veyance by the board of commissioners •of the Caddo levee district iinder the sup- posed authority of La. Acts 1892, No. 74, § 9, on the ground that under that section, properly construed, the board had no au- thority to sell until a proper instrument conveying the land to the board had been duly executed by the proper state officers, does not give effect to Acts 1902, No. 171, repealing the earlier act, so as to present a question of the impairment of contract obligations, reviewable in the federal su- preme court by writ of error. Cross Lake Shooting, etc., Club v. Louisiana, 224 U. S. 632. 56 L. Ed. 924, 32 S. Ct. 577. 715-54. Determination as to validity, in- terpretation and existence of contract. — Whether or not municipal taxation under a subsequent statute is a public tax within the meaning of a covenant by the lessee of a municipality to pay the public taxes which sliall become due on the land is a question which the federal supreme court will determine for itself on writ of error to a state court in a case involving the question of the impairment of contract obligations by the enforcement of the tax. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548. 31 S. Ct. 465, affirming City of Norfolk V. Perry Co., 108 Va. 28, 61 S. E. 867; City of Norfolk -■. White. 108 Va. 35, 61 S. E. 870. 720-69. Showing as to jurisdiction. — Whether or not a statute of a sister state alleged to create contract obligations pro- tected against impairment by the contract clause of the federal constitution has been repealed by subsequent legislation pre- sents no federal question for review on writ of error from the federal supreme court to a state court, where there was neither allegation nor proof that the court of last resort in the state where the legis- lation was enacted had considered the question or made any ruling upon it. Texas, etc.. R. Co. v. Miller. 221 U. S. 408. 55 L. Ed. 789. 31 S. Ct. 534. affirming judgment (Tex. Civ. App. 1910), 128 S. W. 1165; (1911). Texas, etc., R. Co. v. Gross, 221 U. S. 417, 55 L. Ed. 796, 31 S. Ct. 536. affirming judgment in (Tex. Civ. App. 1910). 128 S.'W. 1173. 721-72. Action by city for water rents. — A writ of error to a state court to re- view a judgment in favor of a municipality in an action for water rents will be dis- missed for want of jurisdiction. Ander- son V. Inhabitants. 223 U. S. 714, 56 L. 90 Vol. I. APPEAL AND ERROR. 721-729 Where Decision Rests on Independent Grounds. — See note 73. (61) Questions of General Law — aa. In General. — See note *J1. bb. Various Specific Applications of the General Rules. — See notes 9, 20, 22. Ed. 626, 32 S. Ct. 521. citing St. Paul, etc, R. Co. V. Todd County, 142 U. S. 282, 35 L. Ed. 1014, 12 S. Ct. 281; St. Paul Gas Light Co. V. St. Paul, 181 U. S. 142, 45 L. Ed. 788, 21 S. Ct. 575; New Orleans Waterworks Co. :•. Louisiana, 185 U. S. 336, 350, 46 L. Ed. 936, 22 S. Ct. 691; Hamblin v. Western Land Co., 147 U. S. 531, 37 L. Ed. 267, 13 S. Ct. 353; FarrelJ V. O'Brien, 199 U. S. 89, 100, 50 L. Ed. 101, 25 S. Ct. 727; Los Angeles, etc., Milling Co. V. Los Angeles, 217 U. S. 217, 226, 54 L. Ed. 736, 30 S. Ct. 452. 721-73. Where decision rests on inde- pendent grounds. — As was said by Mr. Justice Gray in New Orleans Waterworks Co. V. Louisiana Sugar Refin. Co., 125 U. S. 18, 39, 31 L. Ed. 607: "But when the state court gives no effect to the subse- •quent law, but decides, on grounds inde- pendent of that law, that the right claimed was not conferred by the contract, the case stands just as if the subsequent law had not been passed, and this court has no jurisdiction." Missouri, etc., R. Co. v. Olathe, Xo. 2, 222 U. S- 187, 190, 56 L. Ed. 156. 32 S. Ct. 47. "The plaintiff says that there is no con- stitutional question before this court be- cause the supreme court of Louisiana put its decision partly upon the ground that the defendant had not acquired all of its contract rights before the adoption of the constitution of 1898. Of course this court must satisfy itself upon that point and therefore has jurisdiction." Arkansas, etc.. R. Co. z'. Louisiana, etc., R. Co., 218 U. S. 431, 436, 54 L. Ed. 1097, 31 S. Ct. 56. A decision of the highest court of a state, enforcing the payment by a street railway company to a municipality of the sum contracted to be paid when the road should be completed, is not reviewable in the federal supreme court, as giving ef- fect to a resolution of the common coun- cil which the company asserts impaired its contract right to construct a certain turn- out, where the court placed its decision distinctly upon the ground that, without regard to that resolution or to the ques- tion of the right of the company to con- struct the turnout, the money was payable because the road had been substantially completed. Missouri, etc., R. Co. v. Olathe, No. 2, 222 U. S. 187. 56 L. Ed. 156. 32 S. Ct. 47, dismissing writ of error in City of Olathe r. Edson, 114 P. 228. 84 Kan. 408. A decree of a state court adverse to the contention that, if the state constitution confers on one railway company an ex- emption from a special tax granted in aid of another railway company, it impairs contract obligations, is reviewable in the federal supreme court, although the state court rested its decision in part upon the ground that the latter railway company had not acquired all of its contract rights before the adoption of the constitution. Arkansas, etc., R. Co. v. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56, affirming decree in Louisiana & A. Ry. Co. V. Shaw (1908), 46 So. 994, 121 La. 997. The contention that an attempt in the state constitution to limit taxation im- pairs the obligation of contracts with a municipal school board does not present a case for a writ of error from the federal supreme court to review a decree of a state court which refused mandamus to compel the levy of a tax to pay claims and judg- ments based upon such contracts, which rests mainly on the grounds that the re- lators were guilty of laches, and that the statute relied upon as authorizing such contracts did not empower the school board to make contracts in such wise as to bind the municipality to levy the tax, neither the constitution nor any subse- quent legislation having been invoked or enforced by the court. Fisher v. New Or- leans, 218 U. S. 438, 54 L. Ed. 1099, 31 S. Ct. 57. 726-91. Questions of general law. — Where a state court has decided against the plaintiff in error on a matter of general law broad enough to sustain the judgment, the federal supreme court will not con- sider the federal questions, even though they may have been actually considered and determined adversely to his conten- tion. Hale z: .A.kers, 132 U. S. 554, 564, 33 L. Ed. 442. 10 S. Ct. 171; Gaar, etc.. Co. z\ Shannon, 223 U. S. 468, 56 L. Ed. 510, 32 S. Ct. 236. The principle has been enforced in cases where the ruling of the state court was based on the application of the doctrine of res judicata, laches, and the statute of limitations. Northern Pac. R. Co. v. El- lis, 144 U. S. 458. 36 L. Ed. 504. 12 S. Ct. 724; Hale v. Lewis, 181 U. S. 473. 45 L- Ed. 959, 21 S. Ct. 677; Moran z\ Horsky, 178 U. S. 205, 44 L. Ed. 1038, 20 S. Ct. 856; Pierce v. Somerset Railway, 171 U. S. 641, 648, 43 L. Ed. 316. 19 S. Ct. 64; Rec- tor z: Ashlev. 6 Wall. 142, 18 L. Ed. 733; Gaar. etc.. Co. z: Shannon. 223 U. S. 468. 56 L. Ed. 510, 32 S. Ct. 236. 729-9. A ruling that the evidence is in- sufficient to sustain a recovery under a petition which, while founded on the Safety-Appliance Act of March 2, 1893. fails to state a cause of action under that statute, but at most shows a right of re- 91 730-731 APPEAL AND ERROR. Vol. I. covery at common law, does not involve a federal question open to examination in the federal supreme court on a writ of error to a state court. Brinkmeier v. Mis- souri Pac. R. Co., 224 U. S. 268, 56 L. Ed. 758, 32 S. Ct. 412. 730-20. Negligence. — Error to a state court to review a judgment of its highest court, affirming a judgment of the court below in favor of an emploj^ee in a suit for personal injuries will be dismissed for want of jurisdiction. Quincy, etc., R. Co. V. Shohoney, 223 U. S. 705, 56 L. Ed. 621, 32 S. Ct. 517; Chicago, etc., R. Co. v. Brad- bury, 223 U. S. 711, 56 L. Ed. 624, 32 S. Ct. 520, citing Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 117. 53 L. Ed. 431, 29 S. Ct. 227; Leathe t'. Thomas, 207 U. S. 93, 52 L. Ed. 118, 28 S. Ct. 30; Giles V. Teasley, 193 U. S. 146. 48 L. Ed. 655, 24 S. Ct. 359; Eustis v. Bolles, 150 U. S. 361, 37 L. Ed. 1111, 14 S. Ct. 131. A writ of error to the highest state court to review its judgment, affirming a. judgment of the court below in that state in favor of the plaintiff in a suit to re- cover damages for the death of an em- ployee, will be dismissed for want of ju- risdiction. Coalgate Co. v. Hurst, 225 U. S. 697, 56 L. Ed. 1262, 32 S. Ct. 838, citing Wabash R. Co. v. Flannigan, 192 U. S. 29, 38, 48 L. Ed. 328, 24 S. Ct. 224; United States i\ Pridgeon, 153 U. S. 48, 54, 38 L. Ed. 631, 14 S. Ct. 746; Shoshone Min. Co. V. Rutter. 177 U. S. 505, 508, 44 L. Ed. 864, 20 S. Ct. 726; Matter of Moran, 203 U. S. 96, 104, 51 L. Ed. 105, 27 S. Ct. 25. 731-22. Waiver of rights.— Whether rail- way companies waive their charter rights- to change the line of a narrow-gauge road, and are estopped to revoke such waiver, by obtaining the consent of the state, through its railroad commission, to broaden and standardize that line through its entire length, is a local, and not a fed- eral question, and can not be reviewed on a writ of error from the supreme court of the United States to a state court. Judgment (1906), 41 So. 259, 89 Miss. 724, affirmed. Mobile, etc., R. Co. v. Missis- sippi, 210 U. S. 187, 52 L. Ed. 1016, 28 S. Ct. 650. The effect of a valid conveyance to the territory of Washington by a claimant, under the Oregon Donation Act of Sep- tember 27, 1850 (9 Stat. 496, c. 76). after occupation for more than four years, but before he had made final proof under that act, upon the title subsequently given him by a patent from the United States, is a question of local law, not open for review upon a writ of error from the federal su- preme court to a state court. Sylvester V. Washington. 215 U. S. 80, 54 L. Ed. 101. 30 S. Ct. 25. Resulting trust. — A writ of error to a state court to review a decree of its highest court affirming a decree establish- ing resulting trusts in land will be dis- missed for want of jurisdiction. Thomas V. Thomas, 220 U. S. 607, 55 L. Ed. 607, 31 S. Ct. 722. Domestication of corporations created under federal statute. — Whether or not the officers of the state grand lodge of a fra- ternal order incorporated under the fed- eral general incorporation act of May 5, 1870, may prosecute in the state courts an application to be made a domestic cor- poration is a question nonfederal in char- acter, which can not be reviewed by the federal supreme court on writ of error to a state court. Creswill v. Grand Lodge Knights, 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822. Effect of a voluntary payment. — A de- cision of a state court dismissing a suit by a foreign corporation to recover back a franchise tax imposed under a state stat- ute which is alleged to contravene the federal constitution, which decision rests in part on the ground that the tax was voluntarily paid, can not be reviewed in the federal supreme court if the question as to voluntary payment fairly arises on the record, although the federal questions may have been actually considered and determined by the state court. Gaar, etc., Co. V. Shannon, 223 U. S. 468, 56 L. Ed. 510, 32 S. Ct. 236. Amendment of 'pleadings. — The refusal to allow an amendment to the petition in an action founded on the original Safety- Appliance Act of March 2, 1893, after the cause had twice been tried without de- cisive result, and the period of limitation had expired, so as to allege that the cars were used in moving interstate traffic, involves only a question of pleading and practice under the local law, which is not reviewable in the federal supreme court on writ of error to a state court. Brink- meier V. Missouri Pac. R. Co., 224 U. S. 268, 56 L. Ed. 758. 32 S. Ct. 412. Petition for assessment of land for taxation. — The dismissal of the petition of ' the owner, brought under Act Ky. March 15, 1906, c. 22, art. 3, for the assessment and taxation of his lands to escape the forfeiture provided by that statute, because such petition did not contain a description of the land suffi- cient to identify it, involves no federal question which can be reviewed by the federal supreme court on writ of error to a state court, unless the ruling was so arbitrarv and baseless as to amount to a deprivation of due process of law. Ken- tucky Union Co. v. Kentucky, 219 U. S. 140. 55 L. Ed. 137, 31 S. Ct. 171, affirming judgments (1907), 106 S. W. 260, 127 Ky. 667, and (1908), 108 S. W. 931, 128 Ky. 610, 111 S. W. 362, 33 Ky. Law Rep. 85.7. Ouster in quo warranto. — Error to a state court to review a judgment of ouster in quo warranto proceedings will be dis- 92 Vol. I. APPEAL AND ERROR. 733 dd. General Principles of Equity. — See note 28. ee. Principles of Comity. — Each state may, subject to the restrictions of the federal constitution, determine the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and specifically how far it will, having jurisdiction of the parties, entertain in its courts transitory actions where the cause of action has arisen outside its borders. The federal supreme court has, therefore, no authority to review the decision of the state court, so far as it holds that there was jurisdiction to hear and determine a case. On that question the decision of that court is final. ^^^ ff. Res Adjiidicata, Laches and Estoppel. — See note 30. missed for want of jurisdiction. Cassidy V. People, 223 U. S. 707, 56 L. Ed. 622, 32 S. Ct. 518, citing Farrell v. O'Brien. 199 U. S. 98, 100, 50 L. Ed. 101, 25 S. Ct. 727; Kaufman & Sons Co. v. Smith, 216 U. S. 610, 54 L. Ed. 636, 30 S. Ct. 419; Elder v. Badgley, 204 U. S. 85, 51 L. Ed. 381, 27 S. Ct. 223. Prosecution for keeping disorderly house. — A writ of error to a state court to review a judgment of its highest court, affirming a judginent of an intermediate court of appeals in the state, affirming a conviction of the trial court for keeping a disorderly house, will be dismissed for want of jurisdiction. Moore v. State, 223 U. S. 709, 56 L. Ed. 623, 33 S. Ct. 519, cit- ing Farrell v. O'Brien, 199 U. S. 89, 100, 50 L. Ed. 101, 25 S. Ct. 727; Kaufman & Sons Co. V. Smith, 216 U. S. 610, 54 L. Ed. 636, 30 S. Ct. 419; Simon v. Craft, 182 U. S. 427. 45 L. Ed. 1165, 21 S. Ct. 836; Twining v. New Jersey, 211 U. S. 78, 111, 53 L. Ed. 97, 29 S. Ct. 14; FeUs v. Murphy, 201 U. S. 123, 50L. Ed. 689, 26 S. Ct. 366. Ejectment. — A writ of error to a state court to review a judgment in favor of the defendant in an action of ejectment involving title to school lands will be dismissed for want of jurisdiction. Thayer V. Schaben. 223 U. S. 714, 56 L. Ed. 626, 32 S. Ct. 521, citing California Nat. Bank v. Thomas, 171 U. S. 441. 43 L. Ed. 231. 19 S. Ct. 4; Appleby v. Buffalo, 221 U. S. 524. 529. 55 L. Ed. 838. 31 S. Ct. 699. Discharge from attachment. — A writ of error to the highest state court to review its judgment, reversing an order of the lower court releasing and discharging cer- tain bonds and coupons attached thereto from the operation of a writ of attach- ment, will be dismissed for want of juris- diction. De Beam v. De Beam, 225 U. S. 695. 56 L. Ed. 1261. 32 S. Ct. 834, citing Toland v. Sprague, 12 Pet. 300, 331, 9 L. Ed. 1093; Boyle v. Zacharie, 6 Pet. 648. 8 L. Ed. 532; Loeber v. Schroeder. 149 U. S. 580. 37 L. Ed. 856. 13 S. Ct. 934; Mis- souri, etc., R. Co. V. Olathe, 222 U. S. 185, 56 L. Ed. 155, 32 S. Ct. 46. General law of landlord and tenant. — A decision of a state court that the general rule making the landlord responsible for the taxes has no application to the case of a perpetual leaseholder where the ten- ant is, in effect, the virtual owner of the property and entitled to its use forever, presents no federal question which can be reviewed by the federal supreme court on writ of error. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465, af- firming judgments (1908), City of Nor- folk V. J. \V. Perry Co., 61 S. E. 867, 108 Va. 28, and (1908), J. W. Perry Co. v. White. 61 S. E. 870, 108 Va. 35. 733-28. General principles of equity. — A writ of error to a supreme court of a state to review a decision dismissing a bill in a suit to establish a trust, will be dismissed for want of jurisdiction. Baird V. Howison, 223 U. S. 712, 56 L. Ed. 625. 32 S. Ct. 520. citing Dewey v. Des Moines, 173 U. S. 193. 205, 43 L. Ed. 665, 19 S. Ct. 379; Haire v. Rice, 204 U. S. 291, 301, 51 L. Ed. 490, 27 S. Ct. 281; Thomas v. Iowa, 209 U. S. 258, 52 L. Ed. 782, 28 S. Ct. 487; Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 118, 53 L. Ed. 431, 29 S. Ct. 227; Goodrich z\ Ferris, 214 U. S. 71, 79, 53 L. Ed. 914, 29 S. Ct. 580. 733-29a. Principles of comity. — St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, S85, 52 L. Ed. 1061, 28 S. Ct. 616. The contention that the courts of Ar- kansas have no jurisdiction of causes of action arising under the laws of the In- dian Territory, giving a right of action for death, does not present a federal question which will sustain a writ of error from the supreme court of the United States to a state court. Judgm,ent, St. Louis, I. M. & S. Ry. Co. v. Neal (1906). 98 S. W. 958. 83 Ark. 591. reversed. St. Louis, etc.. R. Co. v. Taylor, 210 U. S. 281. 52 L. Ed. 1061. 28 S. Ct. 616. 733-30. Res adjudicata. — A writ of error to a state court to review a judgment, which, on final hearing, dismissed, on the ground of res judicata, a bill seeking to revoke a decree of adoption, will be dis- missed for want of jurisdiction. Chase v. Phillips. 223 U. S. 715, 56 L- Ed. 627, 32 S. Ct. 521. citing Farrell v. O'Brien, 199 U. S. 89, 100, 50X Ed. 101. 25 S. Ct. 727; San Francisco 7. Itsell, 133 U. S. 65, 33 L. Ed. 570, 10 S. Ct. 241; Empire State- Idaho Min., etc.. Co. v. Hanley, 205 U. S. 225, 236, 51. L. Ed. 779, 27 S. Ct. 476; Chase V. Phillips, 216 U. S. 616, 54 L. Ed. 6.'5«. 30 S. Ct. 577. 93 735-743 APPEAL AND ERROR. Vol. L gg. Qualifications of General Rules. — See note 36. (62) Where Decision of State Court Depends upon the Construction of State Statutes and Constitutions — aa. In General. — See note 39. bb. Various Specific Applications of the General Rules. — See notes 54, 57^ 58, 62, 74. Estoppel by abandonment of grant. — Contentions in a suit between two rail- way companies, each claiming the same right of way through an Indian reserva- tion, that the congressional grant to one company was abandoned by the grantee, and that the circumstances show an es- toppel to claim under it, do not present federal questions which may be reviewed on a writ of error from the federal su- preme court to a state court. Spokane, etc., R. Co. V. Washington, etc., R. Co.. 219 U. S. 166, 55 L. Ed. 159, 31 S. Ct. 182, affirming decree (1908), 95 P. 64, 49 Wash. 280. 735-36. Qualifications of general rules. — "It is, however, equally well settled that if the federal question is properly pre- sented and necessarily controls the de- termination of the case, the appellate ju- risdiction of this court is not defeated be- cause the decision is put upon some matter of local law. West Chicago St. R. Co. v. Chicago, 201 U. S. 506, 520. 50 L. Ed. 845, 26 S. Ct. 518." Gaar, etc., Co. t-. Shannon, 223 U. S. 468, 56 L. Ed. 510, 32 S. Ct. 236. 736-39. Where decision of state courts depend upon the construction of state statutes and constitutions. — The interpre- tation of a state constitution and the con- formity of an enactment of the state leg- islature to that constitution are questions solely for the consideration of the state courts, whose decision thereon concludes the federal supreme court. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. The construction by a state court of the statutes of that state and its rulings as to the admissibility of evidence furnish no basis for a writ of error from the fed- eral supreme court. Los Angeles, etc., Milling Co. v. Los Angeles, 217 U. S 217 54 L. Ed. 736. 30 S. Ct. 452. The decision of a state court that a void provision of a state statute is sepa- rable from its valid provisions does not present a federal question which will sus- tain a writ of error from the federal su- preme court to a state court. King v. West Virginia, etc., Lumber Co., 216 U. S. 92, 54 h. Ed. 396. 30 S. Ct. 225. The misconstruction of a state statute by a state court can not present a ques- tion which will sustain a writ of error from the federal supreme court to a state court. King v. West Virginia, etc.. Lum- ber Co., 216 U. S. 92, 54 L. Ed. 396, 30 S. Ct. 225. 740-54. Prohibition to inferior court.— A writ of error to the supreme court of the state to review a judgment denying a petition for a writ of prohibition to re- quire the court below to proceed under the juvenile delinquent act, which denial is based upon a repeal of such act after the petition was filed and the cause sub- mitted, will be dismissed for want of ju- risdiction. Ferryman v. Coleman, 220 U. S. 602, 55 L. Ed. 604, 31 S. Ct. 716, citing Mutual Life Ins. Co. v. McGrew, 188 U. S. 291, 308, 47 L. Ed. 480, 23 S. Ct. 375; Farrell v. O'Brien, 199 U. S. 89, 100, 50 L. Ed. 101, 25 S. Ct. 727; Kaufman & Sons Co. V. Smith, 216 U. S. 610, 54 L. Ed. 636, 30 S. Ct. 419. 741-57. Taxation.— "The construction of a state statute and the conformity to it of the proceedings of the taxing officials were questions exclusively for the supreme court of the state, and we have no au- thority to review its determination of them." Elder v. Wood, 208 U. S. 226. 233, 52 L. Ed. 464, 28 S. Ct. 263. 742-58. Local assessments for street im- provements. — Whether or not a city coun- cil has determined that the board of public works has complied with the con- ditions of its jurisdiction to order a street improvement is not a federal question, which can be reviewed by the federal su- preme court on writ of error to a state court. Judgment, City of Denver v. Londoner (1905) 80 P. 117, 33 Colo. 104, reversed. Londoner z'. Denver, 210 U. S. 373, 52 L. Ed. 1103, 28 S. Ct. 708. A w^rit of error to the highest state court to review its judgment affirming the judgment of the trial court condemning certain lands for street railway purposes in proceedings in which the contention was made that the state statute was erroneously construed as conferring the power of eminent domain upon a suburban electric railway company, and by such erroneous construction deprived the land- owner of property without due process of law and denied the equal protection of the laws, will be dismissed for want of iurisdiction. Devon ?'. Cincinnati, etc., R. Co.. 220 U. S. 605, 55 L. Ed. 605. 31 S. Ct. 718, citing First Nat. Bank t'. City Council. 215 U. S, 341, 346. 54 L. Ed. 223, 30 S. Ct. 152; Rogers v. Clark Iron Co., 217 U. S. 589, 54 L. Ed. 895, 30 S. Ct. 693; Waters-Pierce Oil Co. 7-. Texas, No. 2, 212 U. S. 112, 117, 53 L. Ed. 431. 29 S. Ct. 227; Cincinnati, etc., R. Co. v. Slade. 216 U. S. 78, 83. 54 L. Ed. 390, 30 S. Ct. 230. 743-62. Criminal Practice Act.— The con- struction given by the Maryland court of appeals to Code Pub. Gen. Laws Md. 94 Vol. I. APPEAL AND ERROR. 745-748 cc. Bnactineut of State Statutes. — See note 75. (63) Where Decision of State Court Depends upon Questions of State Prac- tice and Procedure. — See note 78. 3 904, art. 43, § 99, making it a misdemeanor to attempt to practice medicine without registration, as not being subject to the limitations of § 80 of that article, relatmg to the sending of notice to unregistered physicians, is conclusive upon the federal supreme court on writ of error to the state court. Watson v. Maryland, 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644. affirm- ing judgment (1907), 66 A. 635, 105 Md. 650. 745-74. Validity of initiative and refer- endum act. — Questions as to the validity under the state constitution of Or. Laws 1907, chap. 226, authorizing the voters of a municipality to resort to the initiative to amend its charter, and as to the regu- larity of the proceedings leading up to the adoption of an amendment, and of the proceedings culminating in the adoption of a particular ordinance, are not federal, and hence will not support a writ of error from the federal supreme court to a state court. Kiernan v. Portland, 223 U. S. 151, 56 L. Ed. 386. 32 S. Ct. 231. Construction of boom in river. — Whether construction of a boom in a navigable stream lying entirely within the state is authorized by state statutes is not a federal question which will sustain a writ of error from the supreme court of the United States to a state court. North Shore Boom, etc., Co. v. Nicomen Boom Co., 212 U. S. 406, 53 L. Ed. 574, 29 S. Ct. 355. Whether the notice to a corporation to produce books and papers before a grand jury is broader than that provided for by Vermont Act of November 9, 1906, is a question of the construction of the statute and of the notice, on which the decision of the state court is final, and not review- able by the federal supreme court on writ of error. Consolidated Rendering Co. v. Vermont, 207 U. S. 541. 52 L. Ed.' 327, 28 S. Ct. 178. Quo warranto. — The ruling of the highest court of a state that, under the state constitution, it had jurisdiction of the subject matter, and authority to enter judgment of ouster and fine in civil quo warranto proceedings against foreign cor- porations holding licenses to do business in the state, is conclusive on the federal supreme court rn a writ of error to the state court, regardless of whether the judgment is civil or criminal, or both combined. Standard Oil Co. v. Missouri, 224 U. S. 270. 56 L. Ed. 760. 32 S. Ct. 406. Collateral questions as to whether quo warranto proceedings abated as against a foreign corporation when it gave notice of its withdrawal from the state, and as to whether an amendment to the state anti-trust act operated to relieve the cor- poration from the penalties for all com- binations in restraint of trade entered into prior to the adoption of the amendatory statute, are not reviewable on writ of er- ror from the federal supreme court to a state court, to review a judgment of ouster and fine, where such judginent was within the jurisdiction of the state court, and within the issues submitted. Standard Oil Co. V. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. Delegation of legislative power. — A de- cision sustaining the validity under the state constitution of an alleged delegation of legislative power to a building com- mission does not present a federal ques- tion for determination by the federal su- preme court on writ of error to a state court. Judgment (1907), 79 N. E. 745, 193 :\lass. 364, 118 Am. St. Rep. 523. Welch z'. Swasey, 214 U. S. 91, 53 L. Ed. 923, 29 S: Ct. .567. Married women's laws. — Whether or not the rights of a surviving wife in the community property as they existed when the marriage was celebrated were correctly subjected to a state inheritance tax law subsequently enacted can not be reviewed by the federal supreme court when de- termining, on writ of error to a state court, the validity of such statute under the con- tract clause of the federal constitution. Moffitt z: Kelly, 218 U. S. 400, 54 L. Ed. 1086, 31 S. Ct. 79, afiirming judgments In re Moffitt's Estate (1908), 95 P. 653, 1025, 153 Cal. 359, 20 L. R. A. (N. S.) 207. The nature and character of the rights of the surviving wife in the community property are peculiarly local questions, not open to review by the federal supreme court when determining, on a writ of er- ror to a state court, whether the imposi- tion of an inheritance tax under the state laws denies to the wife the enual protec- tion of the laws. Moffitt r. Kelly. 218 U. S. 400, 54 L. Ed. 1086. 31 S. Ct. 19. 746-75. Enactment of state statutes — Where the highest court of a state decided that a state statute was properly enacted and this decision was sought to be re- viewed in the federal supreme court, hejd, that the stipreme court had no authority to review the determination of the highest court of the state of the proper method of proving the existence of its own laws. Sticknev 7'. Kelsev. 209 U. S. 419. 52 L. Ed. 863. 28 S. Ct. 508. 748-78. Where decision of state court depends upon questions of state practice and procedure. — TIic construction and ef- fect of a prior decree of a state court, and 95 754-770 APPEAL AND ERROR. Vol. I. s. Transfer of Cause— (4) Alloumice of Writ of Error — cc. By Whom Al- loived. — See note 3. (13) Assignment of Errors.— See post, "Assignmgnt of Errors," X. Requisites and Sufficiency. — An assignment of error in a state court which has refused to give effect to a judgment of a circuit court of the United States in deciding a controversy before it, which states the refusal of the trial court to give proper and full credit to the judgment of the circuit court, thereby de- nying to the complaining party "a right arising under the authority of the United States," does not lack certainty of specification, so as to prevent the supreme court of the United States from taking jurisdiction of the cause.'*''' t. The Record — (1) In General. — See note 48. (2) Fonn and Contents of Record — dd. Petition for Rehearing. — Where it appears that the highest court of the state delivered two opinions in the case, one on the first hearing and the other on a rehearing, the petition for rehearing should be embraced in the record on appeal to the Supreme Court of the United States especially where it was denied by the state court. It may, however, be assumed that the court in denying the rehearing considered the federal ques- tion urged on the first hearing of the court.^^^ hh. Assignment of Errors. — See note 71. how far it bound the state, and whether or not it bound parties subsequently com- ing in, are matters of state procedure, the rulings upon which can not present any question which will sustain a writ of er- ror from the federal supreme court to a state court. King v. West Virginia, etc., Lumber Co., 216 U. S. '32, 54 L. Ed. 396, 30 S. Ct. 223. Whether or not the amount due to the holders of certain railroad equipment bonds on the issue of an execution against the railway company can be determined in a proceeding to enforce the lien of such bonds by a sale of the railroad property IS not open on a writ of error from the supreme court of the United States to a state court. Wabash R. Co. v. Adelbert College, 208 U. S. 38, 52 L- Ed. 379, 28 S. Ct. 182; S. C, 208 U. S. 609, 52 L. Ed. 642. 28 S. Ct. 425. 754-3. By whom allowed. — A writ of er- ror from the federal supreme court to the supreme court of the state of Nebraska sufficiently conforms to the requirement of Rev. St. U. S., § 999 [U. S. Comp. St. 1901, p. 712], respecting allowance by the Chief Justice of the state court, where it is signed "John B. Barnes, Presiding Judge of Supreme Court of Nebraska, in absence of Sedgwick, ,C. J., from this state," and the truth of this recital is not challenged. Missouri, etc., Land Co. 7'. Wiese. 208 U. S. 234, 52 L. Ed. 460, 28 S. Ct. 294, affirming judgment in Wiese f. Union Pac. Ry. Co. (Neb. 1906), 108 N. W. 175; Missouri, etc.. Land Co. z'. Wrich, 208 U. S. 250, 52 L. Ed. 473, 28 S. Ct. 299, affirming judgment in Wrich v. Union Pac. Ry. Co. CNeb. 1906). 108 N. W. 178. 762-47a. Requisites and sufficiency. — Judgment, Kirven r. Virginia-Carolina Chemical Co. (1907), 58 S. E. 424, 77 S. C. 493, affirmed. Virginia-Carolina Chem- ical Co. V. Kirven, 215 U. S. 252, 54 L. Ed. 179, 30 S. Ct. 78. 763-48. A federal question entirely out- side the record, and having no connection with any federal question which is raised in the record, can not be considered by the supreme court of the United States on writ of error to a state court. Judgment, In re City of Pittsburg, 66 A. 348, 217 Pa. 227; Appeal of Hunter, Id., affirmed. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. 765-59a. Petition for rehearing. — Kier- nan t'. Portland. 223 U. S. 151, 56 L. Ed. 386, 32 S. Ct. 231. 770-71. Assignment of errors. — The as- signment of errors in the supreme court can not raise a federal question, but such review is confined to the assignments of error made and passed on in the judg- ment brought up for review. Waters- Pierce Oil Co. V. Texas, No. 2. 212 U. S 112, 53 L. Ed. 431. 29 S. Ct. 227. "It is well settled in this court that a review of the judgment of a state court is confined to the assignments of error made and passed upon in the judgment of the state court brought here for review. The assignment of errors in this court can not bring into the record any new matter for our consideration." Waters- Pierce Oil Co. V. Texas, No. 2, 212 U. S. 112, 115, 53 L. Ed. 431, 29 S. Ct. 227. An attempt to assign new errors in a petition for rehearing in a state court which is overruled without an opinion passing on federal questions can not avail to import such questions into the record. Waters-Pierce Oil Co. v. Texas, 212 U. S. 112, 53 L. Ed. 431. 29 S. Ct. 227. 96 Vol. I. APPEAL AND ERROR. 772-773 u. Scope of Reviezv — (1) In General. — See note 85. Questions as to the validity, under Const. U. S. Amends. 13, 14, of the provision of Gen. Acts Ala. 1907, p. 636, creating a presumption of criminal intent from the refusal of an employee to perform service without refunding money obtained from his em- ployer, are not open on a writ of error from the federal supreme court to re- view a judgment of the highest court of the state, affirming the refusal of an inferior court to discharge the accused on habeas corpus, where all that appears from the record is that the accused is held to await trial on a charge of having obtained money from his employer under a written contract, with intent to de- fraud.ssa "In ascertaining, on a writ of error to a state court, what credit is given to these judicial proceedings by the laws and usages of the state of New Jersey, we are limited to the evidence on that subject before the court whose judgment we are reviewing. "'^f"' Qualifications of General Rule. — The exercise of the appellate jurisdiction of the federal supreme court over state courts extends to the inquiry whether, by some intervening event, the federal questions presented have ceased to be material to the right disposition of the cause, and to the disposition of the cause in the light of that event. ^^^ Thus, the rule which ordinarily would con- fine the scope of review in the federal supreme court on a writ of error to an inferior state court, presenting questions of the validity, under the federal con- stitution, of a state statute under which an attorney's fee was awarded to the successful plaintiff^ below, to the consideration and determination of the federal question, does not preclude it from recognizing the changed situation produced by a decision of the highest state court pending the writ of error, by which the statute was adjudged invalid because the subject was not sufficiently expressed in the title, and from reversing the judgment so that the inferior state court may •apply the decision of the highest state court by awarding a new judgment in conformity therewith. ^s'' 772-85. Scope of review. — "The juris- diction of this court to review the pro- ceedings of the state courts, as we have had frequent occasion to declare, is not that of a general reviewing court in er- ror, but is limited to the specific instances of denials of federal rights, whether those pertaining to the constitutionality of fed- eral or state statutes, or to certain rights, immunities and privileges of federal origin, specially set up in the state court and de- nied by the rulings and judgment of that court." Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 86, 97, 53 L. Ed. 417, 29 S. Ct. 220. On error to a state court, the supreme court has no jurisdiction to notice other errors than those which involve alleged violations of federal rights secured by the constitution of the United States or fed- eral statutes. The states have the right to administer their own laws for the prosecution of crime, and the jurisdiction of the federal supreme court extends only to the reversal of such state proceedings where fundamental rights secured by the federal law have been denied by the pro- ceedings in the state courts. Franklin 7'. South Carolina, 218 U. S. 161, 164, 54 L. Ed. 980, 30 S. Ct. 640. 773-86a. Bailey v. Alabama, 211 U. S. 452, 53 L. Ed. 278. 29 S. Ct. 141, affirming judgment in 48 So. 498. 12 U S Enc— 7 773-86b. Tilt v. Kelsey, 207 U. S. 43, 57, 52 L. Ed. 95, 28 S. Ct. 1. 773-88a. Qualification of general rule. — Gulf, etc., R. Co. V. Dennis, 224 U. S. 503, 56 L. Ed. 860, 32 S. Ct. 542. "While, on a writ of error to a state court, our province ordinarily is only to inquire whether that court has erred in the decision of some federal question, it does not follow that where, pending the writ, a statute of the state or a decision of its highest judicial tribunal intervenes and puts an end to the right which the judgment sustains, we should ignore the changed situation, and affirm or reverse the judgment with sole regard to the fed- eral question. On the contrary, we are of opinion that in such a case it becomes our duty to recognize the changed situa- tion, and either to apply the intervening law or decision, or to set aside the judg- ment and remand the case so that the state court may do so. To do this is not to review, in any proper sense of the term, the decision of that court upon a nonfederal question, but only to give ef- fect to a matter arising since its jvidgment, and bearing directly upon the right dis- position of the case." Gulf, etc., R. Co. z: Dennis, 224 U. S. 503, 56 L. Ed. 860, 32 S. Ct. 542. 773-88b. Gulf, etc., R. Co. z'. Dennis. 224 U. S. 503, 56 L. Ed. 860, 32 S. Ct. 542. 773-778 APPEAL AND ERROR. Vol. I. (2) Irregularities and Mere Errors. — See note 90. (4) Ouestions of Fact — aa. In General. — See note 93. Quahfications of General Rule.— While it is true that upon a writ of error to a state court the supreme court of the United States can not, as a general rule, review its decision upon pure questions of fact, but only upon questions of law bearing upon the federal right set up by the unsuccessful party, it equally is true that such court may examine the entire record, including the evi- dence, if properly incorporated therein, to determine whether what purports to be a finding upon questions of fact is so involved with and dependent upon such questions of law as to be in substance and effect a decision of the latter. That this is so is amply shown by the prior rulings of the federal supreme court.''^'' Perhaps the most frequent exercise of this power occurs in cases arising under the clause of the constitution forbidding a state to pass any law impairing the obligation of a contract, the existence of the contract in such cases being a mixed question of law and fact.^^'' A like exercise of this power is shown in cases arising under the clause of the constitution requiring" full faith and credit to be given in each state to the judicial proceedings of every other state.^^*^ 773-90. Power to correct errors in trial. — "We have not the power to correct mere errors in the trials in state courts, although affirmed by the highest state courts. This court is not a general court of appeals, with the general right to re- view the decisions of the state courts. We may only inquire whether there has been error committed in the decision of those federal questions which are set forth in § 709, Rev. Stat." St. Louis, etc., R. Co. V. Taylor, 210 U. S. 281, 291, 52 L. Ed. lOGl, 28 S. Ct. 616. 774-93. Questions of fact in general. — The ordinary rule is that questions of fact will not be reviewed by the federal su- preme court on writs of error to state courts. Thomas v. Texas. 212 U. S. 278. 281, 53 L. Ed. 512, 29 S. Ct. 393. Findings of fact are conclusive on writ of error to a state court. Judgment (Tex. Civ. App. 1908), 106 S. W. 918, affirmed. Waters-Pierce Oil Co. v. Texas. No. 2, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. Findings of fact of a state court are binding on the federal supreme court on a writ of error to the state court. Rankin V. Emigh, 218 U. S. 27, 54 L. Ed. 915, _ 30 S. Ct. 672, affirming judgment in Emigh V. Earling (1908), 115 N. W. 128, 134 Wis. 565. Acceptance of deed. — The decision of a state court that a trust deed was accepted by a national bank is a finding of fact not reviewable by the federal supreme court on writ of error to the state court. Ker- foot V. Farmers', etc., Bank, 218 U. S. 281, 54 L. Ed. 1042, 31 S. Ct. 14, affirming de- cree in Hall v. Same, 46 S. W. 1000, 145 Mo. 418. Location of vein or lode. — The decision of a state court rejecting the contention of an owner of a mining claim that a cer- tain vein or lode has part of its apex in his claim is not reviewable in the federal supreme court, where the case turned upon a question of fact. Mammoth Min. Co. V. Grand Cent. Min. Co., 213 U. S. 72, 53 L. Ed. 702, 29 S. Ct. 413. Location of boundaries. — A decision by a state court that certain tracts of land were not within the boundaries of a land grant rests upon a question of fact, which can not serve as the basis of a writ of er- ror from the federal supreme court to a state court. King v. West Virginia, etc., Lumber Co., 216 U. S. 92, 54 L. Ed. 396, 30 S. Ct. 225. Whether discrimination against negroes because of race or color was practiced by jury commissioners in selection of grand and petit jurors is a question of fact, de- cision of which by the state court is con- clusive on the federal supreme court, on writ of error, unless so grossly wrong as to amount to infraction of the federal con- stitution. Judgment (1906), 95 S. W. 1069. 49 Tex. Cr.'R. 633, affirmed. Thomas V. Texas, 212 U. S. 278, 53 L. Ed. 512, 29 S. Ct. 393. 778-98a. Qualification of general rule. — Kansas City, etc.. R. Co. z: Albers Comm. Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. 778-98b. Impairing obligation of con- tract. — Kansas City, etc., R. Co. 7'. Albers Comm. Co.. 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. 778-98C. Full faith and credit. — Kansas City, etc., R. Co. v. Albers Comm. Co., 223 U. S. 573. 56 L. Ed. 556, 32 S. Ct. 316. "Thus, in Mackay v. Dillon, 4 How. 421, 447, 11 L. Ed. 1038, where the state courts had given to certain evidence an effect claimed to be unwarranted by an appli- cable law of congress, it was held that their decision 'on the effect of such evi- dence may be fully considered here.' " Kansas City, etc., R. Co. v. Albers Comm. 98 Vol. I. APPEAL AND ERROR. 779 bb. Rulings on Questions of Evidence. — ^While it is true that upon a writ of error to a state court the supreme court does not review findings of fact, never- theless two propositions are as well settled as the rule itself, as follows: (a) That where a federal right has been denied as the result of a finding of fact which it is contended there was no evidence whatever to support, and the evidence is in the record, the resulting question of law is open for decision ; and (b) that where a conclusion of law as to a federal right and a finding of fact are so intermingled as to cause it to be essentially necessary, for the purpose of pass- ing upon the federal question, to analyze and dissect the facts, to the extent necessary to do so the power exists as a necessary incident to a decision upon the claim of denial of the federal right. ^'^ Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. "In Dower v. Richards, 151 U. S. 658, 667, 38 L. Ed. 305, 14 S. Ct. 452, where the conclusiveness of findings of fact by a state court was elaborately considered, it was recognized that where the question is 'of the competency and legal effect of the evidence as bearing upon a question of fed- eral law, the decision may be reviewed by this court.' " Kansas City, etc., R. Co. v. Albers Comm. Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. "In Stanley v. Schwalby, 162 U. S. 255, 279, 40 L. Ed. 960, 16 S. Ct. 754, which was an action of ejectment, the validity of an authority exercised under the United States was drawn in question, and depended upon whether the United States had a good title to the land in con- troversy. That question turned upon whether the attorney for the United States, who had represented it in the ac- quisition of the land, knew at the time of a prior deed to one McMillan, and the state court found that he had such knowl- edge. In this court it was insisted, on the one hand, that the finding was conclusive, and, on the other, that the evidence was insufficient, as matter of law, to warrant the finding, and could be examined to de- termine whether this was so. In that con- nection this court, although recognizing the general rule that findings upon pure questions of fact are not open to review, said: 'But so far as the judgment of the state court against the validity of an au- thority set up by the defendants under the United States necessarily involves the de- cision of a question of law, it must be re- viewed by this court, whether that question depends upon the constitution, laws, or treaties of the United States, or upon the local law, or upon principles of general jurisprudence.' And, upon examin- ing the evidence, this court held it to be 'wholly insufficient, in fact and in law, to support the conclusion that the attorney had any notice of the previous deed to McMillan,' and accordingly reversed the judgment of the state court." Kansas City, etc., R. Co. v. Albers Comm. Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. "And in Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. Ct. 407, a case arising under the federal safety appliance law, wherein the state court found that the deceased contributed to his injury by his own negligence, thereby preventing a recovery, this court exer- cised the power to examine the evidence, notwithstanding a contention that the finding was conclusive, and reversed the jud";ment upon the ground that it ap- peared that what had been, found to be contributory negligence was at most an assumption of the risk, which was not a defense under the federal statute." Kansas City, etc., R. Co. v. Albers Comm. Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. 779-4a. Rulings on questions of evi- dence. — Kansas City, etc.. R. Co. v. Al- bers Comm. Co., 223 U. S. 573, 591, 56 L. Ed. 556, 32 S. Ct. 316; Cedar Rapids Gas, etc.. Co. V. Cedar Rapids, 223 U. S. 655, 668, 56 L. Ed. 594, 32 S. Ct. 389; Oregon R., etc., Co. V. Fairchild, 224 U. S. 510, 56 L. Ed. 863, 32 S. Ct. 535; Creswill v. Grand Lodge Knights. 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822. A question of law arising out of the contention that there was no evidence whatever to support a finding of fact as the result of which a federal right was denied is open to review in the federal supreme court on writ of error to a state court, if the evidence is in the record. Creswill v. Grand Lodge Knights, 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822. Necessity for trackage connections be- tween competing railways. — Whether or not as a matter of law, the facts proved show the existence of such a public neces- sity for trackage connections between competing railway companies for the in- terchange of business as authorizes a tak- ing of propert}^ is a question for con- sideration in the federal supreme court on writ of error to a state court, in a case in which the order of a state railway com- mission requiring such connections is at- tacked as denying due process of law. Oregon R., etc., Co. v. Fairchild, 224 U. S. 510, 56 L. Ed. 863. 32 S. Ct. 535. 99 780-789 APPEAL AND ERROR. Vol. I. cc. Findings of Fact by Referee. — See note 6. ee. Rule in Equity Proceedings. — Since § 709, U. S. Comp. Statutes, 1901, p. 575, provides that a writ of error to a state court shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States, the facts are not open to re-examination in the federal supreme court. And merely because a decree of the state court can be reviewed only by a writ of error is no reason for construing the words of this statute as giving to a writ of error in the chancery case the eft'ect of an appeal, thereby opening the evidence to re-examination to the same extent as upon an appeal. ^^^ But the evidence in an equity case will be examined by the supreme court of the United States in proceedings in error to the state court, in so far as such examination is necessary to answer questions properly saved, coming within the appellate jurisdiction of the supreme court of the United States, where the findings to be reviewed depend on questions which are re-examinable in such court.i^'" v. Affirmance, Reversal or Disniissal — (3) Reversal — aa. In General. — It would require a very clear case to warrant the reversal of the decree of the state court, which, though final in form, merely postpones a decision upon the merits for further experience.^^a (4) Dismissal — aa. Grounds for Dismissal — ddd. JVont of Substantiality in Claim. — See note 43. The consideration which the highest state court gives to 780-6. Findings of fact by referee. — Exceptions to the findings of fact of a referee, or to his refusal to find facts as requested, can not be considered on a writ of error to review a judgment entered upon the facts found. Lupton's Sons Co. V. Automobile Club, 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711, citing Roberts v. Benjamin, 124 U. S. 64, 74, 31 L. Ed. 334, 8 S. Ct. 393; Shipman v. Straitsville Cent. Min. Co.. 158 U. S. 356, 361, 39 L. Ed. 1015. 15 S. Ct. 886; Chicago, etc., R. Co. V. Clark, 178 U. S. 353, 364, 44 L. Ed. 1099, 20 S. Ct. 924; Heckers v. Fowler. 2 Wall 123. 17 L. Ed. 759; Bond v. Dustin, 112 U. S. 604, 28 L. Ed. 835, 5 S. Ct. 296; Paine V. Central Vermont R. Co., 118 U. S. 152, 158. 30 L. Ed. 193, 6 S. Ct. 1019. Where the trial is had before a referee pursuant to stipulation, the only question presented in the appellate court is whether there is any error of law in the judgment rendered by the court upon the facts found by the referee. Lupton's Sons Co. v. Au- tomobile Club, 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711. 781-lOa. Rule in equity proceedings. — Cedar Rapids Gas. etc., Co. :■. Cedar Rap- ids, 223 U. S. 655, 56 L. Ed. 594, 32 S. Ct. 389. 781-lOb. Qualification of rule. — Cedar Rapids Gas, etc.. Co. 7\ Cedar Rapids, 223 U. S. 655, 56 L. Ed. 594. 32 S. Ct. 389. 787-32a. Reversal. — Cedar Rapids Gas, etc., Co. r. Cedar Rapids, 223 U. S. 655, 56 L. Ed. 594, 32 S. Ct. 389. A judgment of a state court, dismissing a bill to restrain the enforcement of an or- dinance fixing 90 cents per thousand cubic feet as a maximum gas rate, without prej- udice to a later suit after the ordinance. which had not been enforced before the coinmencement of the suit, had been given a fair test, the court estimating on a value fixed by it for the plant considerably in excess of its cost, that the return under the ordinance would be over 6 per cent, will not be disturbed on review by the su- preme court of the United States. Cedar Rapids Gas, etc., Co. v. Cedar Rapids, 223 U. S. 655, 56 L. Ed. 594, 32 S. Ct. 389. 789-43. Want of substantiality in claim. — Where upon a writ of error to a state court it appears that the questions pre- sented as federal questions to sustain the jurisdiction of the federal supreme court are manifestly frivolous, the writ of error must be dismissed. Hendricks v. United States, 223 U. S. 178, 56 L. Ed. 394, 32 S. Ct. 313. If it appears upon the hearing of a writ of error to a state court that the federal question is frivolous as, for example, where it involves the validity of a sentence to work in streets and public places the writ of error will be dismissed. Loeb v. Jennings, 219 U. S. 582,. 55 L. Ed. 345. 31 S. Ct. 469, citing Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 118, 53 L. Ed. 431, 29 S. Ct. 227; Goodrich v. Ferris, 214 U. S. 71, 79. 53 L. Ed. 914, 29 S. Ct. 580; Griffith 7'. Connecticut. 218 U. S. 563, 54 L. Ed. 1151, 31 S. Ct. 132. An error to the highest state court to review a judgment affirming a conviction of manslaughter had in the trial court in the state will be dismissed for want of ju- risdiction. Hunter v. South Carolina, 219 U. S. 582, 55 L. Ed. 345, 31 S. Ct. 470. cit- ing Farrell v. O'Brien, 199 U. S. 89, 100. 50 L. Ed. 101, 25 S. Ct. 727; Waters-Pierce Oil Co. V. Texas, No. 1, 212 U. S. 86, 113, 100 Vol. I. APPEAL AND ERROR. 789-796 a question claimed to be a federal question may be invoked to show that it is not so far frivolous as to sustain a motion to dismiss.'*"*^ eee. Moot Cases. — See note 45. (5) Hearing and Determination. — Where the only federal question involved has been decided in another case at the same term, the hearing of a motion to dismiss will be postponed to allow it to be amended bv adding a motion to af!irm.52a (6) Modification. — A judgment of ouster and iine. entered against a foreign corporation in quo warranto proceedings in the highest court of a state, which can not be reversed on the federal question involved, can not be modified so as to provide that the judgment shall not be construed to conflict with a decree entered in an equity cause in another court, to which the corporation is a party, nor be amended by adding a provision that the judgment of ouster shall not operate to make those who buy the- products of the corporation subject to prosecution under a statute making it a felony for any person to deal in articles manufactured by a corporation whose license has been forfeited, which the court has no right to assume will be applied so as to interfere with interstate commerce. ^2b y. Mandate — (1) Remand for Further Proceedings. — Where it appears that, after a case is brought to the federal supreme court from the highest court of a state, the questions involved have ceased to be material to the right disposition of any particular case by reason of some intervening event, the court in declining to hear the cause will not dismiss the writ because that would leave the judg- ment to be enforced as rendered contrary to the changed conditions brought about by the intervening event. Accordingly, the supreme court of the United States will vacate the judgment so that the state court may apply the change of conditions to the case by awarding a new judgment in conformity therewith.^^a (4) Compliance with Mandate. — The order and remittitur of the highest court of the state, to be in compliance with the mandate of the federal supreme court which has reversed the state court, should require further proceedings to conform to the opinion of the federal supreme court.^^^ The action of the high- est court of. a state in remanding a cause to be retried on the settled principles of law as theretofore declared in its decisions, instead of requiring the further proceedings to conform to the opinion of the federal supreme court, as the man- date of that court, which had reversed a judgment of the state court, required, is not cause for reversing the judgment rendered on the second trial and af- 53 L. Ed. 417, 29 S. Ct. 220; King v. West missed as presenting a moot case, where Virginia, etc., Lumber Co., 216 U. S. 92. 54 the election to be afifected by the decree L. Ed. 396, 30 S. Ct. 225; Griffith v. Con- has long since been held, and the persons necticut. 218 U. S. 563, 54 L. Ed. 1151, 31 elected have been admitted to their re- S Ct 13'' spective seats, and their successors elected '789-44a.' Determination of question.- according to the same schenne of appoi^ West, etc.. R. Co. v. Pittsburgh Constr. Vt^'^c'''.^- -?'r rf i?9i\^ c;^rrf.-'' Co., 219 U. S. 92. 55 L. Ed. 107, 31 S. Ct. U. S. 48.. o4 L. Ed. 1121 31 S. Ct 43. 196 affirming judgment Pittsburgh Const. ^ 791-52a Hearing and determmation.- Co. r. West Side R. R. Co. (1910), 75 A. '^''\^^'\ ¥0,^""''' ^^^ ^^ ^■' ^^ ' ' iu„y, ,^.< l^a. yj. 791-52b. Modification.— Standard Oil Co. 789-45. Moot Cases.— A writ of error to ,, ^jj^^o^ri ^24 U. S. 270, 56 L. Ed. 760, review a decree of a state court refusmg .^\., ^ q^ ^q". to require a state official, when certifying ^■' ^^ ^^^^ Mandate.-Gulf. etc., R. Co. v. the names of nommees for congres. to the . ^ g. 503. 56 L. Ed. 800, 32 S. clerks of the various county court?, to pro- p. .,0 -- ^ ^ ' ceed under the Kentucky congressional '-t. o4_. ^ ,. . , , ^ apportionment act (Act April 15. 1882), 796-69a, Compliance with mandate- rather than under Act March 12, 1900, Schlemmer :•. Buffalo, etc., R. Co., 220 U. which is attacked as invalid, must be dis- S. 590, 55 L. Ed. 596, 31 b. Lt. 06I. 101 796-798 APPEAL AND ERROR. Vol. I. firmed by the highest state court, where the change in the form of the mandate has not worked prejudice.^^*' 8. Over Military Courts and Tribunals. — See notes 72, 74. 9. Over Supreme Court of Philippine Islands — a. In General. — Section 248 of the New Judicial Code of the Act of March 3, 1911, simply re-enacts § 10 of the Philippine Act of July 1, 1902, as set forth in 1 U. S. E. 797, ex- cept, however, in the latter part of the section in which it is provided that the appeal or writ of error must be brought within the same time, in the same man- ner, under the same regulations, and by the same procedure, as final judgments and decrees of the district courts of the United States instead of the circuit courts as provided in the old act, the circuit courts having been abolished.'^^^ b. Amount in Controversy. — See note 77. 796-69b. Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561, affirming judgment 71 A. 1053, 222 Pa. 470. 796-72. Over military courts and tribu- nals.— See post, MILITARY LAW. 797-74. By certiorari. — Errors and in- justice done in the proceedings before the examining board convened under the au- thority of the act of October 1, 1890, en- acted to provide for the promotion or re- tirement of army officers, which resulted in the discharge of an officer with one year's pay, bj^ an order made by the pres- ident, in the exercise of his reserved power to review the proceedings and decisions of such board, can not be corrected by the courts on certiorari. Reaves v. Ainsworth, 219 U. S. 296, 55 L. Ed. 225, 31 S. Ct. 230. 797-76a. In general. — Error to the su- preme court of the Philippine Islands to review a judgment which, on an appeal taken by the accused from a sentence to life imprisonment imposed by the court of first instance upon a conviction of murder, reversed the judgment and imposed sen- tence of death, will be dismissed as not involving anj^ federal question. Beecham V. United States, 223 U. S. 708, 56 L. Ed. .623, 32 S. Ct. 518, citing Farrell v. O'Brien, 199 U. S. 89, TOO, 50 L. Ed. 101. 25 S. Ct. 727: Kaufman & Sons Co. 7'. Smith, 216 U S. 610, 54 L. Ed. 636. 30 S. Ct. 419; Downes V. Bidwell, 182 U. S. 344. 45 L. Ed. 1088, 21 S. Ct. 770; Hawaii v. Mankichi, 190 U. S. 197, 47 L. Ed. 1016, 23 S. Ct. 787; Rass- mussen v. United States, 197 U. S. 516, 520, 49 L. Ed. 862'. 25 S. Ct. 514; Dorr v. United States, 19.S U. S. 1.^8. 49 L._Ed. 128. 24 S. Ct. 808; Trono z: United States, 199 U. S. 521. 50 L. Ed. 292. 26 S. Ct. 121; Grafton z: United States. 206 U. S. 333, 51 L. Ed 1084. 2T S. Ct. 749. Conduct of trial. — The error, if any, committed, by the court of first instance,' when determining the guilt or innocence of accused, in considering the latter's fail- ure to testify in his own behalf, is not available on a writ of error from the fed- eral suprerne court to the supreme court of the Philippine Islands, where the latter court, in denying a motion for new trial after its decision reducing the sentence on the accused's appeal, stated that it did not, as the trial court did, take the accused's failure to testify into consideration. Pen- dleton V. United States, 216 U. S. 305, 54 L. Ed. 491, 30 _S. Ct. 315. Cases involving a treaty. — Judgments of the supreme court of the Philippine Islands denying any liability of the present city of Manila upon municipal obligations in- curred prior to the cession of the Philip- pine Islands to the United States by treaty with Spain (Act Dec. 10, 1898, 30 Stat. 1754), are rendered in cases in which a treaty of the United States is involved, within the meaning of Act July 1, 1902, c. 1369, § 10, 32 Stat. 695 (U. S. Comp. St. Supp. 1909, p. 226), governing the appel- late jurisdiction of the federal supreme court, although no distinct claim under that treaty was made in the pleadings. Vi- las V. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416. Denial of protection afforded by Philip- pine Bill of Rights. — A conviction of fal- sification of documents under Pen. Code P. I. art. 300, els. 4, 7, is not reviewable in the federal supreme court as involving the denial of the protection aflforded by the Philippine Bill of Rights, where the most that can be gathered from the record is that the accused contended that the com- plaint was bad by the rules of criminal pleading. Paraiso v. United States, 207 U. S. 368, 52 L. Ed. 249, 28 S. Ct. 127. Cases involving statute of United States. — A suit to restrain the defendant from setting up title to certain gold mines in the Philippine Islands, or interfering with the same, and to obtain an accounting, in which the meaning and effect of the pro- visions of Act July 1, 1902 (32 Stat. 703, c. 1369), § 45, concerning mining titles, are in question, is one in which a statute of the United States is "involved," within the meaning of section 10 of the act (32 Stat. 695 [U. S. Comp. St. Supp. 1907, p. 214]) defining the appellate jurisdiction of the supreme court of the United States over the supreme court of the Philippine Is- lands. Reavis v. Fianza, 215 U. S. 16. 54 L. Ed. 72. 30 S. Ct. 1. 798-77. Amount in controversy. — State- ments in the complaint and amended com- 102 Vol. I. APPEAL AND ERROR. 798-799 c. Remedies for Transferring Cause. — See note 79. d. Rc-Examination of Facts. — See notes 81. 85. Concurrent findings of fact by the two lower courts in support of a claim of certain natives of the Philippine Islands to have held possession of certain mines, and to have worked them to the exclusion of all others down to the bringing of suit, will not be disturbed by the supreme court of the United States on appeal from the supreme court of the Philippine Islands, if there is some evidence of the facts found. ^*^^ h. The Record. — The denial of a motion for rehearing by the supreme court of the Philippine Islands can not serve to bring federal questions into the record, so as to sustain a writ of error from the supreme court of the United States.^^^ plaint in a suit to set aside a convej^ance of real property, from which inight Se in- ferred the existence of the jurisdictional amount requisite, under Act July 1, 1902, c. 1369, § 10, 32 Stat. 695 (U. S. Comp. St. Supp. 1909, p. 226), to sustain an appeal from the supreme court of the Philippine Islands to the federal supreme court, are insufficient as against a motion to dismiss, where the record otherwise shows that such amount is not involved. Enriquez v. Enriquez. 222 U. S. 123. 56 L. Ed. 122, 32 S. Ct. 62. The value of the real property involved in a suit to set aside conveyances thereof as fraudulent simulations can not be said to be shown by a preponderance of evi- dence to be in excess of the jurisdictional amount prescribed for appeals from thf supreme court of the Philippine Islands to the federal supreme court by an affida- vit to that effect, where there is an oppos- ing affidavit, and the record shows that the requisite value does not exist. Enri- quez v. Enriquez, 222 U. S. 123, 56 L. Ed. 122. 32 S. Ct. 62. An affidavit that the value of the real property, the title to and possession of which is involved in a suit to set aside a conveyance, is in excess of the jurisdic- l^ional amount prescribed by Act July 1. 1902. c. 1369, § 10, 32 Stat. 695 (U. S. Comp. St. Supp. 1909, p. 226), governing appeals to the federal supreme court irom the su- preme court of the Philippine Islands, is inadequate to sustain such an appeal from a decree which, on the appeal of the de- fendants alone, reversed a decree of the trial court, upholding such conveyance as against the objections of forgery and mental incapacity, and setting the same aside as to one-half of the property only, on the ground that it belonged to the es- tate of the grantor's deceased wife, as an acquet of the community. Enriquez v. En- riquez. 222 U. S. 123, 56 L. Ed. 122, 32 S. Ct. 62. 798-79. Remedies for transferring cause. — Writ of error is the proper mode of bringing up to the federal supreme court for review a judgment of the supreme court of the Philippine Islands, affirming a judgment below, dismissing, upon grounds of law. an application for the reg- istration of land. Carino v. Insular Gov- ernment, 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. Writ of error, and not appeal, is the proper mode of bringing up to the federal supreme court for review a judgment of the supreme court of the Philippine Is- lands, affirming a judgment of the court of land registration, granting registration of a part only of a tract of land. Costas v. Insular Government. 221 U. S. 623. 55 L. Ed. 884, 31 S. Ct. 664. Writ of error, and not appeal, is the proper proceeding to obtain a review in the federal supreme court of a judgment of the supreme court of the Philippine Is- lands, affirming a judgment of the court of land registration, which denied registra- tion of a tract of land. Tiglao v. Insular Government, 215 U. S. 410,^54 L. Ed. 257. 30 S. Ct. 129. 798-81. The facts, when the courts be- low differ, will be reviewed bj' the federal supreme court under Act July 1, 1902, c. 1369, § 10, 32 Stat. 695 (U. S. Comp. St. Supp. 1907, p. 214), on appeal from or writ of error to the judgment of the supreme court of the Philippine Islands. Strong z\ Repide, 213 U. S. 419, 53 L. Ed. 853, 29 S. Ct. 521. 799-85. Only questions of law are brought up for review bj' a writ of error from the federal supreme court to the su- preme court of the Philippine Islands. Santos V. Holy Roman Catholic, etc.. Church, 212 U. S. 463. 53 L. Ed. 599, 29 S. Ct. 338. Assignments of error which challenge the sufficiency of the evidence to warrant a conviction can not be considered by the federal supreme court on a writ of error to the supreme court of the Philippine Is- lands, to review a judgment affirming such conviction, where it is not contended that there was no evidence of guiit. since only errors of law can be considered upon a writ of error. Ling Su Fan v. United States, 218 U. S. 302, 54 L. Ed. 1049. 31 S. Ct. 21. 799-86a. Concurrent findings of fact. — Reavis ;•. Fianza. 315 U. S. 16, 54 L. Ed. 72, 30 S. Ct. 1. 799-89a. The record. — Paraiso v. United States, 207 U. S. 368. 52 L. Ed. 249. 28 S. Ct. 127. 103 799-806 APPEAL AND ERROR. Vol. I. i. Scope of Revieiv.— Theory of the Case.— The right to registration of a land title in the Philippine Islands on the ground of established possession when a composition deed from the Spanish authorities was issued will not be consid- ered by the federal supreme court, when reviewing a judgment of the supreme court of the Philippine Islands, which affirmed a judgment of the trial court, refusing registration on the opposition of the insular government, where the case, as made by the pleadings, is rested solely upon the right to register result- ing from the composition deed, without the slightest averment of possession prior to the time such deed was issued, except as it may be considered that such possession was alleged as a necessary result of the averments as to the deed, and no evidence whatever was offered concerning the possession prior to, or at the time of, the composition deed, irrespective of the administration proceed- ings leading up to the issue of such deed, and following upon its annulment, the validity of the deed, as depending upon the competency of the administrative officers to avoid it and to annul the composition proceedings, being the one issue which, as understood by the court below and by the parties, arose upon the op- position of the government.^^*' 11. Over Supreme Court oe Porto Rico and United States District Court — a. In General. — See note 18. Only matters of law can be considered by the federal supreme court on the appeal authorized by Act April 12, 1900, c. 191, § 35, 31 Stat. 85, to be taken from the district court of the United States for the District of Porto Rico in the same manner and under the same regulations as from the supreme courts of the territories.^®* But § 244 of the New Judi- cial Code of March 3, 1911, makes many important changes in appeals and writs of error from the supreme court of, and the United States district courts for, Porto Rico. Such writs of error and appeals are now taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken to the supreme court of the United States from the district courts, and is not to conform in such respects to writs of error and appeals from territorial courts as was the case under former enactments. b. Jurisdiction as Dependent on Amount in Controversy. — See note 25. Under § 244 of the New Judicial Code of March 3, 1911, writs of error and appeals from the final judgments and decrees of the supreme court of, and the United States district court for, Porto Rico, may be taken and prosecuted to the su- preme court of the United States, in any case wherein is involved the validity of any copyright, or in which is drawn in question the validity of a treaty or 799-89b. Theory of the case. — Roura zf. appeals to the federal supreme court from Philippine Islands, 218 U. S. 386, 54 L. Ed. final judgments of the district court of 1080, 31 S. Ct. 73. Porto Rico "in the same manner and under 805-18. Over supreme court of Porto the same regulations and in the same cases Rico and the United States district court. as from the supreme courts of territories." —The appellate jurisdiction of the su- Tefft, etc., Co. v. Munsuri, 222 U. S. 114, preme court of the United States over the 56 L. Ed. 118, 32 S. Ct. 67. See post, supreme court of Porto Rico formerly BANKRUPTCY. arose from the thirty-fifth section of the 806-25. Jurisdiction as dependent on act of April 12, 1900 (31 Stat. 77, 85, chap. amount in controversy.— Under act of 191). Kent t;. Porto Rico, 207 U. S. 113, April 12, 1900, 31 Stat. 77, 85, c. 191, when 114, 52 L. Ed. 127, 28 S. Ct. 55. ^hg jurisdiction of the supreme court to re- 805-18a. Under Act April 12, 1900. — Gar- view the decisions of the district court of zot V. De Rubio, 209 U. S. 284, 52 L. Ed. the United States for the district of Porto 794. 28 _S. Ct. 548. Rico depends upon amount. $5,000 is the No right to have an order of the district criterion. Aran v. Zurrinach, 222 U. S. 395, cpurt of the United States for Porto Rico 56 L. Ed. 246, 32 S. Ct. 162. sitting as a court of bankruptcy disallow- Writs of error to the district court of ing certain claims against a bankrupt's the United States for Porto Rico will be estate reviewed in the federal supreme dismissed where judgments reached less court is given by the provisions of Act than $5,000. Valdes v. Munich, 212 U. S. April 12, 1900, c. 191, § 35, 31 Stat. 85, for 568, 53 L. Ed. 654, 29 S. Ct. 692. 104 Vol. I. APPEAL AND ERROR. 807-808 statute of, or authority exercised under, the United States, or wherein the consti- tution of the United States, or a treaty thereof, or an act of congress is brought in question and the right claimed thereunder is denied, without regard to the sum or value of the matter in dispute; and in all other cases in which the sum or value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party or of other competent ^yitnesses, exceeds the sum or value of five thousand dollars. c. Jurisdiction as Dependent on Claim of Federal Right. — See note 30. e. Necessity for Finality of Judgment. — An appeal from the United States district court for Porto Rico, to review a decree in a suit for the dissolution of a partnership, which finds a certain lease to be of no force or eflfect, leaving for future determination the accounting and separation of the property, the case being retained for all necessary purposes, will be dismissed for lack of finality of the judgment.^^* 807-30. Jurisdiction as dependent on claim of Federal right. — It is settled that the provisions of the thirty-fifth section of the act of April 12, 1900, which gives a right to bring the federal supreme court from the district court of Porto Rico by- writs of error or appeal all final decisions of such court in all cases where "an act of congress is brought in question and the right claimed thereunder is denied" does not contemplate that the right to review thus conferred should be confined solely to cases where the validity of an act of congress is called in question or its inter- pretation is necessarily involved, but also gives power to review where a right under an act of congress was asserted and denied in the court below. Aran v. Zurrinach, 222 U. S. 395, 398, 56 L. Ed. 246, 32 S. Ct. 163. _ Frivolous claim that federal question is involved. — Not every mere question of ir- regularity, in applying the law of the United States, which arises in the case in the court below, confers a right to review on the federal supreme court which other- wise would not exist, and when from the manner in which questions are raised, that is, their generality of statement and the absence of all specification to sustain thein, the conclusion is justified that they are of a frivolous character, the appeal will be dismissed. Aran 7'. Zurrinach, 222 U. S. 395, 56 L. Ed. 246, 32 S. Ct. 162. The federal question presented by the contention that the changes made by the Porto Rico Legislature in the boundaries of judicial districts and' in the number of judges deprived the courts affected of their validity, under Act April 12, 1900, c. 191, § 33, 31 Stat. 85, legalizing existing tribu- nals, must be deemed too frivolous to sus- tain a writ of error to the supreme court of Porto Rico under section 35 of that act, when the whole of section 33 is consid- ered together with the context of the act, and especially with section 15, giving the local Legislature the power of amendment, alteration, modification, or repeal. Kent V. Porto Rico, 207 U. S. 113, 52 L. Ed. 127, 28 S. Ct. 55. Errors assigned with respect to the ac- tion of the trial court with reference to an alleged confession of guilt furnish no basis for the exercise by the supreme court of the United States of its appellate jurisdic- tion over the Porto Rican supreme court, under Act April 12, 1900, c. 191, § 35, 31 Stat. 85, where the record does not show even the semblance of the assertion or de- nial of a right under the federal constitu- tion. Kent v. Porto Rico, 207 U. S. 113, 52 L. Ed. 127, 28 S. Ct. 55. General objections to the jury panel, based upon the political status of the clerk of the court and of the jury commissioner, or upon the political opinions of the ju- rors, are too frivolous and wanting in merit to afford any support for the con- tention that the court, in overruling a mo- tion to quash the panel on those grounds, denied a right claimed under an act of con- gress, within the meaning of Act Cong. April 12, 1900, c. 191, § 35 (31 Stat. 85), governing the appellate jurisdiction of the federal supreme court over the district court of the United States for the district of Porto Rico. Aran v. Zurrinach, 222 U. S. 395, 56 L. Ed. 246, 32 S. Ct. 162. Determination of existence of federal question. — "Tn determining whether the as- signments of error present federal ques- tions it is to be borne in mind that the mere fact that some of the assignments re- lied on assert federal rights is not deter- minative, since, even although the assign- ments formally involve such rights, we are nevertheless without jurisdiction 'where it indubitably appears that the federal right asserted is frivolous, that is, without color of merit.' American R. Co. z'. Cas- tro, 204 U. S. 453, 51 L. Ed. 564, 27 S. Ct. 466." Kent ?'. Porto Rico, 207 U. S. 113, 114, 52 L. Ed. 127. 28 S. Ct. 55. 808-39a. Finality of judgment. — Van Syckel v. Arsuaga, 220 U. S. 601, 55 L. Ed. 603, 31 S. Ct. 716, citing St. Louis, etc., R. Co. v. Southern Exp. Co., 108 U. S. 24, 28. 105 808-825 APPEAL AND ERROR. Vol. I. f. Review of Findings of Fact. — The findings of fact made by the district court of the United States for Porto Rico are not such as will enable the federal supreme court to determine whether or not they support the judgment on an appeal which, under the act of April 12, 1900 (31 Stat, at L. 85, chap. 191), § 35, is governed by the rules applicable to appeals from the territorial supreme courts, where, instead of stating the ultimate facts, the findings merely embody conflicting statements of counsel concerning the facts as they suppose them to be, and their appreciation of the law which they deem applicable. ^^^ E. Under Circuit Court of Appeals Act — 3. Purpose: or Object of Stat- ute. — See note 54. 9. Appellate Jurisdiction oe Circuit Court oe Appeals — a. In General. — A circuit court of appeals has jurisdiction to review a decree of a federal cir- cuit court, dismissing a bill to restrain a municipality from removing the poles and wires of a telephone and telegraph company from the city streets, and from preventing the placing of further poles and wires therein, on the ground that the company had rights under the act of July 24, 1866 (14 Stat, at L. 221, chap. 230, Rev. Stat., §§ 5263, et seq., U. S. Comp. Stat. 1901, p. 3579), that were infringed, and that the conduct of the city has given rise to a contract protected against impairment. ^^'^ Power to Issue Writs. — Mandamus to require a federal circuit court to proceed with and determine a pending suit which it has stayed to await the com- mencement and prosecution to final judgment of a suit in a state court may be issued by a circuit court of appeals as in aid of its appellate jurisdiction under Act March 3, 1891, c. 517, § 12, 26 Stat. 829 (U. S. Comp. St. 1901, p. 553), giving the circuit courts of appeals the powers specified in Rev. St. U. S., § 716 (U. S. Comp. St. 1901, p. 580), to issue all writs not specifically provided for by statute, and necessary for the exercise of the court's jurisdiction, and agree- able to the usages and principles of law.*'^'' i. Finality of Judgments and Decrees — (2) Interlocutory Orders Granting or Refusing Injunctions. — See note 17. 27 L. Ed. 638, 2 S. Ct. 6; Southern R. Co. V. Postal Tel., etc., Co., 179 U. S. G41, 644, 45 L. Ed. 355, 21 S. Ct. 249; Covington v. Covington First Nat. Bank, 185 U. S. 270, 277, 46 L. Ed. 906, 22 S. Ct. 645; Heike v. United States, 217 U. S. 423, 429, 54 L. Ed. 821, 30 S. Ct. 539. 808-39b. Review of findings of fact. — Gonzales v. Buist, 224 U. S. 126, 56 L. Ed. 693, 32 S. Ct. 463. 811-54. Purpose or object of statute. — That act (26 Stat, at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488) was framed for the purpose of relieving the supreme court from the excessive burden imposed upon it by its increasingly crowded docket, and assigned to the circuit courts of ap- peals thereby established a considerable part of the appellate jurisdiction formerly exercised by the supreme court. Ameri- can Constr. Co. v. Jacksonville, etc., R. Co., 148 U. S. 372, 37 L. Ed. 486, 13 S. Ct. 758; United States v. Dickinson, 213 U. S. 92, 53 L. Ed. 711, 29 S. Ct. 485. The object of the act of March 3, 1891, c. 517, 26 Stat. 826. was to distribute the appellate jurisdiction of the supreme court between it and the newly-created circuit courts of appeal, and to abolish the appel- late jurisdiction of the circuit courts. Macfadden v. United States, 213 U. S. 288, 292, 53 L. Ed. 801, 29 S. Ct. 490. 814-66a. Jurisdiction of circuit court of appeals. — Pomona v. Sunset Tel., etc., Co., 224 U. S. 330, 56 L- Ed. 788, 32 S. Ct. 477. 814-66b. Power to issue writs. — McClel- lan V. Carland, 217 U. S. 268, 54 L. Ed. 763, 30 S. Ct. 501. 825-17. Interlocutory orders granting or refusing injunctions. — On appeal to the circuit court of appeals from an interlocu- tory decree granting or continuing an in- junction or appointing a receiver the court is authorized to review the whole of the mterlocutory decree, not merely the part granting the injunction, but also to deter- mine whether there was any insuperable objection, in point of jurisdictional merits, to the maintainahce of the suit, and if there was to direct a final decree dismiss- ing the bill. United States Fidelity, etc., Co. V. Bray, 225 U. S. 205, 56 L. Ed. 1055, 32 S. Ct. 620, citing Smith v. Vulcan Iron Works, 165 U. S. 518, 41 L. Ed. 810, 17 S. Ct. 407; In re Tampa, etc., R. Co., 168 U. S. 583, 42 L. Ed. 589, 18 S. Ct. 177; Mast, etc., Co. V. Stover Mfg. Co.. 177 U. S. 485, 44 L. Ed. 856, 20 S. Ct. 708; Ex parte, etc.. Stamping Co., 201 U. S. 156, 50 L. Ed. 707, 26 S. Ct. 404. 106 Vol. I. APPEAL AND ERROR. 827-831 j. Limitations upon Appeal. — See note 23. Appeals in Injunction Cases.— The thirty-day limitation prescribed by the act of March 3, 1891, § 7, for appeals in injunction cases, applies only to ap- peals thereunder to the circuit courts of appeals. ^S'^ k. Double Appeals. — See note 32. (1^^) Scope of Review. — The entire case may be taken to the circuit court of appeals for review where the district court takes jurisdiction of a writ of habeas corpus and then proceeds to determine the merits. ^^^ m. Mandate. — The circuit court of appeals, on an appeal from a mere inter- locutory order, may direct the bill to be dismissed, if it appears that the com- plainant is not entitled to maintain the suit."^^ P. Appellate Jurisdiction as Dependent upon Amount or Value in Controversy. — See ante, ''Over Supreme Court of Porto Rico and United States District Court," III, D, 11. 2. What Law Governs — a. In General. — The limitation with reference to the 827-23. Limitations upon appeal.— A writ of error for the review in a circuit court of appeals of a judgment of a federal dis- trict court can not be allowed by the court after the expiration of the six months given by Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829 (U. S. Comp. St. 1901, p. 552), for suing out such writs. Judgment (1907) 152 F. 925, 82 C. C. A. 73, affirmed. Old Nick Williams Co. v. United States, 215 U. S. 541, 54 L. Ed. 318, 30 S. Ct. 221. Delay in settling the bill of exceptions, due to judicial engagements of the trial judge, is no excuse for the failure to sue out a writ of error from a circuit court of appeals to a federal district court within the six months allowed by x\ct March 3, 1891, c. 517, § 11, 20 Stat. 829 (U. S. Comp. St. 190], p. 552), although an assignment of errors should accompany the petition for the writ of error, since such assign- ment may be formulated without the pre- vious settlement of the bill of exceptions, and, besides, is not a jurisdictional require- ment. Old Nick Williams Co. v. United States, 215 U. S. 541, 54 L. Ed. 318, 30 S. Ct. 221. 827-25a. Appeals in injunction cases — United States Fidelity, etc., Co. v. Bray, 225 U. S. 205, 56 L. Ed. 1055, 32 S. Ct. 620. 830-32. Double appeals.— The fact that the case involves grounds which warrant a direct appeal to the federal supreme court does not deprive the circuit court of appeals of jurisdiction if the case is one which might be taken to the latter court. Railroad Comm. v. Worthington, 225 U. S. 101, 56 E. Ed. 1004, 32 S. Ct. 653, citing American Sugar Refin. Co. v. New Or- leans, 181 U. S. 277, 45 E. Ed. 859, 21 S. Ct. 646; Macfadden v. United States, 213 U. S. 288, 53 L. Ed. 801, 29 S. Ct. 490. An appeal lies to the appropriate federal circuit court of appeals from a final decree of a circuit court in a suit in which juris- diction was invoked both because the case was ancillary to a receivership suit which depended upon diverse citizenship, and upon grounds which involved alleged in- fractions of the federal constitution and rights secured thereby which might have warranted a direct appeal to the federal supreme court. Railroad Comm. v. Wor- thington, 225 U. S. 101, 56 L. Ed. 1004, 32 S. Ct. 653. A circuit court of appeals is not without jurisdiction of an appeal from a decree of a federal circuit court in a suit founded upon a decree of that court because the petition for the removal of the suit from the state court in which it was brought alleges that the construction of the federal constitution is involved. Kansas, etc., R. Co. V. Zimmerman, 210 U. S. 336, 52 L. Ed. 1084, 28 S. Ct. 730. The question as to jurisdiction below, when in issue, is reviewable in the circuit court of appeals on a writ of error to a circuit court, bringing up the whole case, although the circuit court, under Act March 3, 1891, c. 517, § 5, 26 Stat. 827 (U. S. Comp. St. 1901, p. 549), might have cer- ti^ed the sole question of jurisdiction directly to the supreme court. Judgment (1906) 149 F. 42, 79 C. C. A. 64, affirmed. Eoston. etc.. Railroad i: Gokey, 210 U. S. 155, 52 L. Ed. 1002, 28 S. Ct. 057. 831-35a. Scope of review. — Tang Tun v. Edsell, 223 U. S. 073, 56 L. Ed. 606, 32 S. Ct. 359, citing United States v. Jahn, 155 U. S. 109, 39 L. Ed. 87, 15 S. Ct. 39; Spreckles Sugar Ref^n. Co. v. McClain, 192 U. S. 397, 407. 48 L. Ed. 496, 24 S. Ct. 376; United States v. Ju Tov, 198 U. S. 253. 259, 49 L. Ed. 10 to. 25 S. Ct. 644. 831-36a. Mandate. — Metropolitan Water Co. V. Kaw Valley, etc.. District. 223 U. S. 519, 56 L. Ed. 533, 32 S. Ct. 246. following Smith V. Vulcan Iron Works, 165 U. S. 518, 41 L. Ed. 810, 17 S. Ct. 407; In re Tamna, etc.. R. Co., 168 U. S. 583, 42 L. Ed. 589, 18 S. Ct. 177; Ex parte, etc.. Stamping Co., 201 U. S. 156, 50 L. Ed. 707, 26 S. Ct. 404; Bissell, Carpet-Sweeper Co. v. Goshen Sweeper Co., 19 C. C. A. 25, 43 U. S. App. 47, 72 Fed. 545 (5), 556-560. 107 833-866 APPEAL AND ERROR. Vol. I. amount in dispute, prescribed by the act of March 3, 1887 (24 Stat, at- L. 505, chap. 359, U. S. Comp. Stat. 1901, p. 754), for appeals from or writs of error to a federal district court sitting as a court of claims, remains in force, not- withstanding the provision of the circuit courts of appeals act of March 3, 1891 (26 Stat, at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488), § 14, that "all acts and parts of acts relating to appeals or writs of error inconsistent with the provisions for review by appeals or writs of error in the preceding §§ 5 and 6 of this act are hereby repealed. ^^^ 3. RkviE-w of Proce;edings in ParticuIvAr Courts — a. Appeals from Terri- torial Courts. — See note 58. d. Appeals from District of Columbia. — See note 65. 11. Amount Actually in Dispute Controls — a. In General. — See note 82. e. Collateral Effect of Judgment. — See note 89. 13. Aggre^gate; Amount of Dfmand^ — g. Suit to Recover Possession of Land. — See note 29. 8S3-55a. What law governs. — Reid v. United States, 211 U. S. 529, 53 L. Ed. 529, 29 S. Ct. 171. 835-58. Appeals from territorial courts. — Appeals and writs of error were allowed from the supreme court of Oklahoma to the federal supreme court where the value of the property or the amount in contro- versy, to be ascertained by the affidavit of either party or other competent witness, exceeds $5,000. Supplement U. S. Revised Stats, vol. 1, p. 724; Beadles v. Smyser, 209 U. S. 393, 400, 52 L. Ed. 849, 28 S". Ct. 522. 836-65, Appeals from District of Colum- bia. — Jurisdictional limit upon writs of error and appeals to or from the court of appeals of the District of Columbia is $5,000, exclusive of interest and costs. See act of February 9, 1893, c. 74, 27 Stat. 434, 436. Wallach v. Rudolph, 217 U. S. 561, 562, 54 L. Ed. 883, 30 S. Ct. 587. 840-82. Amount actually in dispute con- trols. — "The value of the matter in dispute in this court is the test of our jurisdicticm. Hilton V. Dickinson, 108 U. S. 165, 27 L Ed. 688, 2 S. Ct. 424." Martinez v. Inter- national Banking Corp.. 220 U. S. 214, 221, 55 L. Ed. 438, 31 S. Ct! 408. 842-89. Collateral effect of judgment. — "Jurisdiction is to be determined by the amount directly involved in the decree ap- pealed from, and not by any contingent demand which may be recovered, or any contingent loss which may be sustained by either one of the parties through the probative effect of the decree, however direct its bearing upon such contingency." Hollander v. Fechheimer, 162 U. "S. 326, 328, 40 L. Ed. 985. 16 S. Ct. 795; Wallach T'. Rudolph, 217 U. S. 561. 562, 54 L. Ed. 883, 30 S. Ct. 587. The contingent liability of owners of property assessed for benefits accruing from a street extension, incurred by rea- son of their disposal of other property pending the condemnation proceedings, under an undertaking to remove the lien of any assessment for benefits which might be made therein, does not enter into the amount in dispute on a writ of error from the federal supreme court to review a judgment of the court of appeals of the District of Columbia, confirming the as- sessment as to the property owned by them. Wallach 7-'. Rudolph, 217 U. S. 561. 54 L. Ed. 883, 30 S. Ct. 587. 866-29. Suit to recover possession of land. — Where a complaint alleges a joint entry and ouster, and the answer takes is- sue, without setting up separate claims to distinct parcels by the several defendants, and the judgment for the recovery of pos- session is against all the defendants jointly, then the measure of appellate jurisdiction is the value of the whole land. Tupino v. La Compania General De Tab- acos, 214 U. S. 268, 53 L. Ed. 992, 29 S. Ct. GIO, following Friend v. Wise, 111 U. S. 797, 28 L. Ed. 602, 4 S. Ct. 695. Where the pleadings show that there v.^as no allegation of joint ownership or joint possession, and that the controversy with each defendant related to a separate and distinct lot of land, and the judgment is rendered separately against the defend- ants, then the measure of jurisdiction on appeal or writ of error is not the value of the whole land, but the value of each part separately. Tupino v. La Compania General De Tabacos. 214 U. S. 268, 53 L. Ed. 992, 29 S. Ct. 610, following Tupper v. Wise, 110 U. S. 398, 28 L. Ed. 189, 4 S. Ct. 26. The judgment in a suit to recover realty in which olaintiff, though claiming under a single title all land occupied separately by various defendants, does not allege joint ownership or joint possession or joint action of any kind, controversy with each defendant relating to a separate and distinct parcel, does not show an amount in dispvite svifficient to sustain writ of error from the federal supreme court, where such judgment, while apparently rendered jointly, so far as damages are concerned, against all defendants, runs separately 108 Vol. I. APPEAL AND ERROR. 867-900 h. Hearing Causes Together. — Two suits separately commenced, but tried to- gether for convenience, will not be treated as consolidated, for the purpose of increasing the amount in dispute so as to sustain an appeal to the federal su- preme court from the supreme court of the Philippine Islands, where the un- derstanding of court and counsel below was that there was in fact no consoli- dation. ^^^^ i. Qualification of General Rule — (1) Persons Having Common and Undir- vided Interests. — The aggregate sum of the possible penalties sued for in several actions brought by the United States against a carrier under Act June 29, 1906, c. 3594, 34 Stat. 607 (_U. S. Comp. St. Supp. 1909, p. 1178), requiring the unloading of live stock during transit, and consolidated, is the amount in dis- pute for the purpose of susta'ining the appellate jurisdiction of the federal su- preme court. 22* 14. Set-Oi^f and Counterclaim. — See note 38. 16. Showing and Dstermination of Amount — d. Affidavits. — Affidavits in Rebuttal — Necessity.— Where the affidavits filed show a value large enough to give the federal supreme court jurisdiction, a sufficient showing has been made in the absence of affidavits in rebuttal. ■^^'^ o. Determination of Amount in Particular Proceedings — (3) In Probate Pro- ceedings. — The necessary jurisdictional amount to sustain a writ of error to the court of appeals of the District of Columbia to review decree denying probate of a will is not involved where the total amount of legacies to those interested is less than $5,000."'^ (5) In Suits to Foreclose Mortgages. — The value of a mortgaged vessel and the profits from its use, demanded in a dismissed counterclaim in a suit to fore- close the mortgage, cannot be added to the amount of the mortgage debt in de- termining the value of the matter in controversy, for the purpose of an appeal to the federal supreme court from the supreme court of the Philippine Islands.'^o^ against each for recovery of possession of that part of the land of which he was al- leged and found to be in possession, and the whole amount of damages added to value of land in controversy with any of defendants does not equal the jurisdic- tional amount. Tupino v. La Compania General De Tabacos, 214 U. S. 268, 53 L. Ed. 992, 29 S. Ct. 610, following Tupper v. Wise, 110 U. S. 398, 28 L. Ed. 189, 4 S. Ct. 26. 867-31a. Hearing causes together. — Mar- tinez z'. International Banking Corp., 220 U. S. 214, 55 L. Ed. 438, 31 S. Ct. 408. 871-33a. Aggregate sum of possible pen- alties. — Baltimore, etc., R. Co. v. United States, 220 U. S. 94, 55 L. Ed. 384, 31 S. Ct. 368, modifying judgment United States v. Baltimore & O. S. W. R. Co. (1908) 159 F. 33, 86 C. C. A. 223. 872-38. Set-off and counterclaim. — The amount in dispute in a suit to recover damages for refusal of vendor to carry out a contract for sale of real property is suf- ficient to give the federal supreme court jurisdiction of a writ of error to the court of appeals of the District of Columbia to review a judgment in favor of plaintiff for $1,250, where defendant, in his set-ofT, claims an unpaid balance of $11,750 of the purchase price, and claims that the amount of the judgment against him is erroneous, and that a reversal will permit him to claim before the jury on another trial the full amount of his set-ofif, or, at least, the balance due for the purchase price. Judg- ment (1907) Harten v. Loffler, 29 App. D. C. 490, affirmed. Harten z: Loffler, 212 U. S. 397, 53 L. Ed. 568, 29 S. Ct. 351, dis.tin- guished in Martinez v. International Bank- ing Corp., 220 U. S. 214, 55 L. Ed. 438, 31 S. Ct. 408. 883-88a. Affidavits in rebuttal — Neces- sity. — "The right to prosecute the writ is challenged on the ground that the amount involved is not sufficient to confer juris- diction, and because there are no questions arising adequate alone to give jurisdiction. Without going into detail, we say, in view of the affidavits filed in this court concern- ing the value of the propeity, after allow- ing for the elements of speculation pos- sibly entering into the amount fixed in the affidavits, we think, in the absence of affidavits in rebuttal, a sufficient show- ing has been made to give jurisdiction." Roura v. Philippine Is^^nds, 218 U. S. 386, 54 L. Ed. 1080, 31 S. Ct. 73. 900-48a. In probate proceedings. — Mor- gan z: Adams. 211 U. S. 627, 53 L. Ed. .362, 29 S. Ct. 213. 900-50a. In suits to foreclose mortgages. — Martinez v. International Banking Corp., 220 U. S. 214, 55 L. Ed. 438, 31 S. Ct. 408, citing Peyton v. Robertson, 9 Wheat. 527, 6 L. Ed. 151. 109 900-923 APPEAL AND ERROR. Vol. I. (6) In Suit to Compel City to Levy Tax to Pay Its Debt. — The amount of all the judgments against a municipality concerning which relief was sought, and which were directly adjudicated to be barred by the statute of limitations, and not simply the judgment fund in the hands of the treasurer, is the amount in controversy, for the purpose of a writ of error from the federal supreme court to a territorial supreme court, to review a judgment denying relief by mandamus, where the prayer was for a continuous levy of taxes by the mu- nicipal officers for the amount permitted by law annually to be applied in pay- ment of the judgments.^*^'' IV, Decisions Reviewable. B. Nature, Form and Validity of Judgment as Governing Right of Review — 1. In General. — The answer to the question whether an order is final and appealable often turns upon the character of the order. If it is remedial and interlocutory, it is reviewable only on appeal from the final decree; but if it is punitive or criminal in its nature, it is reviewable upon a writ of error without awaiting the final decree. ^^^ Judgment in Contempt Proceedings. — Thus, a judgment finding defend- ants in a pending suit in equity guilty of contempt of its authority in violating an interlocutory injunction previously granted in a suit for the benefit of the complainant, and ordering the payment of specified fines, three-fourths of which when paid would go to the complainant "as compensation in part for the ex- penses incurred in prosecuting these contempt proceedings," is punitive instead of remedial, and reviewable on writ of error without awaiting a final decree in the suit in equity.^**" 2. Decision Must Be Exercise oe Iudiciae Power. — See note 44. 900-50b. To compel city to levy tax. — Beadles r. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522, reversing judgment in 87 P. 292, 17 Okl. 162. 922-34a. Character of order. — In re Merchants' Stock, etc., Co., 223 U. S. 639, 56 L. Ed. 584, 32 S. Ct. 339. See post, "Statement of General Rules or Tests," IV, C, 3. And see post, JUDGMENTS AND DECREES. 922-34b. Judgment in contempt proceed- ings. — In re Merchants' Stock, etc., Co., 223 U. S. 639, 56 L. Ed. 584, 32 S. Ct. 339. 923-44. Decision must be exercise of judicial power.— Section 2, art. 3, Const., which limits the judicial power of the su- preme court to "cases" and "controversies" has frequently been the subject of judicial interpretation, especially in those cases involving the right of appeal from the court of claims, and it has been definitely determined from the earliest times that the power conferred on that court is ex- clusively judicial and it can not be re- quired or authorized to exercise any other, and it is apparent that from its earliest history that the supreme court has con- sistently declined to exercise any powers other than those which are strictly judicial in their nature. Muskrat v. United States, 219_U. S. 346, 55 L. Ed. 246, 31 S. Ct. 250, reviewing this question at length and quoting from state papers and citing United States v. Ferreira, 13 How. 40, 14 L. Ed. 42; Gordon v. United States, 117 U. S., appx., 697; Baltimore, etc., R. Co. v. Interstate Commerce Comm., 215 U. S. 216, 54 L. Ed. 164. 30 S. Ct. 86. See ante, "Over Court of Claims," III, D, 5. All attempts to provide for judicial de- termination, final in the supreme court, of the constitutional validity of an act of congress in a suit arising between par- ties concerning a property right not neces- sarily involved in the decision in ques- tion have been declared futile. It is merely an attempt to obtain a judicial declaration of the validity of an act of congress in proceedings in a case or con- troversy in which, under the constitution of the United States, the judicial power alone extends. Muskrat v. United States, 219 U. S. 346, 55 L. Ed. 246, 31 S. Ct. 250. It therefore becomes necessary to in- quire what is meant by the judicial power thus conferred by the constitution upon the federal supreme court, and with the aid of appropriate legislation upon the in- ferior courts of the United States. "Ju- dicial power," says Mr. Justice Miller in his work on the constitution, "is the power of a court to decide and pronounce a judgment and carry it into effect be- tween persons and parties who bring a case before it for decision." Miller on the Constitution, 314. Muskrat v. United States, 219 U. S. 346, 356, 55 L. Ed. 246, 31 S. Ct. 250. As to the meaning of the words "cases" and "controversies" within the meaning 110 Vol. I. APPEAL AND ERROR. 929-933 C. Finality of Decision as Governing Right of Review — 2. Necessity FOR Finality — a. Iti General. — See note 76. b. Under Circuit Court of Appeals Act. — In the federal courts an appeal, as a general rule, lies only from a final decree. But § 7 of the act of March 3^ 1891, 26 Stat, at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488, as amended April 14, 1906, 34 Stat, at L. 116, chap. 1627, establishes an exception by pro- viding for an appeal to the circuit court of appeals from an interlocutory decree granting or continuing an injunction or appointing a receiver. ^^^ 3. Statement of General Rules or Tests — a. In General. — See notes 90, 95. of § 1, art. 2, Fed. Const., limiting the ju- risdiction of the federal supreme court, see post, CASE; CONTROVERSY. History of previous attempts to get ex- trajudicial opinions from supreme court. — In 1793. by direction of the president, secretarj^ of state, Jefferson, addressed to the justices of the supreme court a com- munication soliciting their views upon the question whether their advice to the ex- ecutive would be available in the solution of important questions of the construc- tion of treaties, laws of nations and laws of the land, which the secretary said were often presented under circumstances which "do not give a cognizance of them to the tribunals of the country." The answer to the question was postponed un- til the subsequent sitting of the supreme court, when Chief Justice Jay and his as- sociates answered to President Washing- ton that in consideration of the lines of separation drawn b}^ the constitution be- tween the three departments of govern- ment, and being judges of a court of last resort, afforded strong arguments against the propriety of extrajudicially deciding the questions alluded to, and expressing the view that the power given by the con- stitution to the president of calling on heads of departments for opinions "seems to have been purposely, as well as ex- pressl3^ united to the executive depart- ments." Correspondence and public pa- pers of John Jav. vol. 3, p. 486. Muskrat z: United States', 219 U. S. 346, 354. 55 L. Ed. 246, 31 S. Ct. 250. "If such actions as are here attempted, to determine the validity of legislation, are sustained, the result will be that this court, instead of keeping withhi the limits of judicial power and deciding cases or controversies arising between opposing parties, as the constitution intended it should, will be required to give opinions in the nature of advice concerning legis- lative action, a function never conferred upon it by the constitution, and against the exercise of which this court has steadily set its face from the beginning." Musk- rat r. United States, 219 U. S. 346. 362, 55 L. Ed. 246, 31 S. Ct. 250. 929-76. Necessity for finality in gen- eral. — Ordinarily, in the federal courts, in the absence of express statutory authority, no appeal can be taken or writ of error brought except from a final decree or to a final judgment. Baltimore, etc., R. Co. z\ Interstate Commerce Comm., 215 U. S. 216, 224, 54 L. Ed. 164, 30 S. Ct. 86. Where it does not appear from the record that the judgment sought to be reviewed was one which finally determined the cause, this court is without jurisdic- tion. ^Iiner!s Bank v. Grant, 5 How. 213, 12 L. Ed. 121; McComb z: Commissioners, 91 U. S. 1, 23 L. Ed. 185; Great Western Tel. Co. V. Burnham, 162 U. S. 339, 40 L. Ed. 991. 16 S. Ct. 850; Haseltine v. Cen- tral Bank. No. 1, 183 U. S. 130. 46 L. Ed. 117, 22 S. Ct. 49; Missouri, etc., R. Co. v. Olathe. 222 U. S. 185, 186, 56 L. Ed. 155, 32 S. Ct. 46. "The foundation upon which rests the doctrine which, as a general rule, limits the appellate jurisdiction of this court to final judgments is that cases should not be brought here by piecemeal through the medium of successive appeals." Martinez V. International Banking Corp., 220 U. S. 214, 223, 55 L. Ed. 438, 31 S. Ct. 408. 931-81a. Under Circuit Court of Ap- peals Act. — United States Fidelity, etc., Co. v. Bray, 225 U. S. 205, 56 L. Ed. 1055, 32 S. Ct. 6'20. 933-90. Judgment of respondeat ouster with leave to plead over. — A judgment of a federal circuit court entered upon a ver- dict directed in favor of the government on the issues raised by a special plea in bar, by which the accused claimed im- munity from prosecution under Act Feb. 25. 1903, c. 755, 32 Stat. 904 (U. S. Comp. St. Supp. 1909, p. 1142). as amended by Act June 30, 1906, c. 3920, 34 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1168). because of his testimony before the grand jury, is not a final judgment, reviewable under Act March 3, 1891, c. 517, § 5, 26 Stat. 827 (U. S. Comp. St. 1901, p. 549), by a direct writ of error from the federal su- preme court, where leave was given to plead over, and a plea of not guilty was entered, uoon which no trial has been had. Heike z'. United States. 217 U. S. 423. 54 h. Ed. 821. 30 S. Ct. 539. "It is unnecessary to enter upon a full consideration of what constitutes a final judgment, a subject of much discussion. The definition of a final judgment or de- cree was tersely stated by Mr. Chief Jus- 111 935-964 APPEAL AND ERROR. Vol. I. 4. Particular Judgments, Orders and Decrees Considered — k. Decisions ivith Respect to Reference — (1) Decree Ordering a Reference. — See note 70. n. Decisions Affecting Pleadings — (1) Judgments on Demurrers. — See note 78. p. Vacating and Setting Aside Judgment. — An appeal from the United States circuit court to review an order vacating an order directing that certain non- resident defendants be served wherever they might be found, will be dismissed for lack of finality.'^* tice Waite in St. Louis, etc., R. Co. v. Southern Exp. Co., 108 U. S. 24, 28, 27 L. Ed. 638, 2 S. Ct. 6, in these terms: 'A decree is final for the purposes of an ap- peal to this court when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done bat to enforce b^^ execution what has been determined.' If we apply the definition herein contained of a final judg- ment or decree it appears certain that the judgment of respondeat ouster, leaving the case with issue joined upon the plea of not guilt}', does not dispose of the whole matter litigated in this proceeding, leaving nothing to be done except the ministerial act of executing the judg- ment." Heike z: United States, 217 U. S. 423, 429, 54 L. Ed. 821, 30 S. Ct. 539. 935-95. Failure to ascertain amount of judgment. — A judgment of the supreme court of the Philippine Islands which di- rects the entry of judgment for the plain- tifif below, in accordance with its decision, but leaves to the lower court the judicial determination of the exact amount for which the judgment shall be entered, is not final for the purpose of an appeal to the federal supreme court. Martinez v. International Banking Corp., 220 U. S. 214. 55 L. Ed. 438, 31 S. Ct. 408. 952-70. Decree ordering reference. — A decree in proceedings in admiralty for limitation of liability, which gfants such limitation, determines the question of pending freight to be surrendered, and disallows all claims for loss of life, but refers all other claims to a commissioner to take testimony and report, can not be regarded as final for the purpose of an appeal, especially where the court below and the parties have treated such decree as a mere interlocutory one. Judgment, La Bourgogne (1906). 144 F. 781, 75 C. C A. 647, affirmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973. 28 S. Ct. 664. See, also, post, REFERENCE. 957-78. A writ of error to a state court to review a decree, reversing a decree of the court below, sustaining a demurrer to the answer in a suit to enjoin an assess- ment for taxing purposes, will be dis- missed for lack of finality in the judg- ment. State Nat. Bank v. Richardson, 225 U. S. 696, 56 L- Ed. 1262, 32 S. Ct. 838, citing Haseitine v. Central Bank, No 1, 183 U. S. 130, 46 L. Ed. 117, 22 S. Ct. 49; Schlosser v. Hemphill, 198 U. S. 173, 175, 49 L. Ed. 1000, 25 S. Ct. 654. A writ of error to a state court to re- view a judgment of its highest court, af- firming a judgment below sustaining a demurrer to an application to assess com- pensation for land appropriated in eminent domain proceedings, will be dismissed for want of finality of the judgment. Nichols z: Cleveland, 220 U. S. 602, 55 L. Ed. 604, 31 S. Ct. 716, citing Great Western Tel. Co. v. Burnham, 162 U. S. 339, 341, 40 L. Ed. 991, 16 S. Ct. 850; Schlosser v. Hemp- hill, 198 U. S. 173, 49 L. Ed. lOOO* 25 S. Ct. 654. A decree of the highest state court, af- firming a decree of the trial court in that state sustaining a demurrer to a bill by which injunctive relief is sought, and dis- solving a preliminary injunction, is not such a final judgment as is reviewable upon error to a state court. Vicksburg Water, etc., Co. t'. Yazoo, etc., R. Co., 220 U. S. 601, 55 L. Ed. 603, 31 S. Ct. 715, fol- lowing Great Western Tel. Co. v. Burn- ham, 162 U. S. 339, 40 L. Ed. 991, 16 S. Ct. 850; Schlosser v. Hemphill, 198 U. S. 173, 49 L. Ed. 1000, 25 S. Ct. 654. A judgment of the highest court of a state, afiirming, without directing a dis- missal, the judgment of the court below, which had sustained a demurrer to the petition in a civil suit upon the ground that it did not state facts sufficient to con- stitute a cause of action, but had not dis- missed the suit, lacks the finality requisite to sustain a writ of error from the federal supreme court. Missouri, etc.. R. Co. v. Olathe, 222 U. S. 185, 56 L. Ed. 155, 32 S. Ct. 46, dismissing appeal (Kan. 1909), Ed- son r. Same, 105 P. 521. A writ of error to a state court to re- view a judgment of its highest court, af- firming a judgment of an intermediate ap- pellate court, reversing a judgment of the trial court, which overruled demurrers to the petition in a suit for the recovery of money, will be dismissed for lack of finality of the judgment. Meyers v. Sam- uels, 223 U. S. 715. 56 L. Ed. 627, 32 S. Ct. .■)21, citing Missouri, etc., R. Co. 7'. Olathe, 222 U. S. 185, 56 L. Ed. 155, 32 S. Ct. 46. 964-7a. Vacating and setting aside judg- ments. — Walker v. Harriman, 220 U. S. 606, 55 L. Ed. 606, 31 S. Ct. 722, citing Southern R. Co. v. Postal Tel., etc.. Co., 179 U. S. 641, 45 L. Ed. 355, 21 S. Ct. 249. 112 Vol. I. APPEAL AND ERROR. 966-987 s. Judgments Reversing and Remanding Causes — (1) In General. — See note 16. t. Orders Made in Progress of Cause — (6) Order Directing Witness to Tes- tify and Produce Documents.- — See note 43. D. Discretionary Matters — 2. Amendments. — See notes 93, 94. 3. Bail. — See note 99. 8. Continuances. — See note 8. 966-16. Judgments reversing and re- manding causes in general. — Although the appellate court fixes the rights and lia- bilities of the party, yet if it in effect re- fers the question in the case to the subor- dinate court for further judicial action, its judgment is not final for the purpose of an appeal or writ of error. Martinez v. International Banking Corp., 220 U. S. 214, 55 L. Ed. 438, 31 S. Ct. 408, citing Drake V. Kochersperger, 170 U. S. 303, 42 L. Ed. 1046, 18 S. Ct. 942; Clark v. Kansas City, 172 U. S. 334, 43 L. Ed. 467, 19 S. Ct. 207. A decree which reversed some of the findings and conclusions of law of the court below in an action for an account- ing, and directed a new decree to be entered in accordance with the opinion of the court, is not final for the purpose of an appeal to the supreme court of the United States. Judgment, Waggaman v. Earle (1905), 25 App. D. C. 582; Earle v. Wagga- man, Id., reversed. Earle :■. flyers, 207 U. S. 244, 52 L. Ed. 191, 28 S. Ct. 86. 974-43. Order directing witness to pro- duce documents. — An order entered in an action to recover damages from a carrier for violations of Interstate Commerce Act Feb. 4. 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], requiring cer- tain specified officers and employees who are not parties to produce relevant books and papers, is not, as to those persons, a final decree within the meaning of the provision of Act March 3, 1891. c. 517, § 6, 26 Stat. 828 [U. S. Comp. St. 1901, p. 549], governing writs of error from circuit courts of appeals to the circuit courts, and hence will not sustain a writ of error sued out by them. Judgment, Cassatt v. Web- ster Coal & Coke Co. (C. C. A.). 150 F. 48, 81 C. C. A. 97; Same v. Pennsylvania Coal & Coke Co., Id., affirmed. Webster Coal, etc., Co. v. Cassatt. 207 U. S. 181, 52 L. Ed. 160, 28 S. Ct. 108; Pennsylvania Coal, etc., Co. v. Cassatt. 207 U. S. 187, 52 L. Ed. 163. 28 S. Ct. 110. 984-93. Amendments. — The principle is elementary "that the action of the court below in refusing to permit the proposed amendment, however germane that amend- ment may have been to the cause of ac- tion stated in the original bill ard even al- though the subject matter of the amend- ment was not foreclosed by our previous decision, is not susceptible of being re- viewed, because the allowance of amend- ments to pleadings is discretionary with a trial court, and the action of the court be- low in refusing to permit the amendment, 12 U S Enc— 8 113 even though erroneous, may not be re- versed for error unless a gross abuse of discretion was committed." United States V. Lehigh Valley R. Co., 220 U. S. 257, 270, 55 L. Ed. 458, 31 S. Ct. 387. 985-94. But v/here there is an absolute abuse of discretion by the court below in refusing to permit an amendment, such action of the court below is reviewable, even though such abuse was obviously oc- casioned by a misconception of the char- acter of the action of the supreme court and the scope of its mandate. United States V. Lehigh Valley R. Co., 220 U. S. 257, 55 L. Ed. 458, 31 S. Ct. 387. Abuse of discretion which may be re- viewed on appeal is committed by the trial court when it refuses to permit an amend- ment to the bill in a suit by the federal government to enjoin railway carriers from interstate transportation of com- modities with which they are associated or in which they are interested, where such amendment is germane to the origi- nal cause of action, and was not fore- closed by the decision of the federal su- preme court, which on appeal had reversed a prior decree of dismissal founded upon the alleged unconstitutionality of the statute upon which the suit was based, and had remanded the cause for further pro- ceedings. United States v. Lehigh Valley R. Co., 220 U. S. 257, 55 L. Ed. 458, 31 S. Ct. 387. 986-99. Bail. — A person convicted of a crime is not entitled to bail, pending an appeal, as a matter of right, but the ac- ceptance or refusal of bail rests in the discretion of the court to which the appeal was taken. Harlan v. McGourin. 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. See, also, post, BAIL AND RECOGNI- ZANCE. 987-8. Continuances. — "The elementary rule is that the granting of a continuance of the cause was peculiarly within the sound discretion of the court below, a dis- cretion not subject to be reviewed on ap- peal except in case of such clear error as to amount to a plain abuse springing from an arbitrary exercise of power." Valdes V. Central Altagracia, 225 U. S. 58, 56 L. Ed. 980. 32 S. Ct. 664. Continuances are within the discretion of the court, and unless great abuse is shown, the action of the court below will not be disturbed. Pickett v. United States. 216 U. S. 456, 461, 54 L. Ed. 566. 30 S. Ct. 265. See, also, post, CONTINUANCES. Refusing to grant a continuance of a 988-1001 APPEAL AND ERROR. Vol. I. 9. Costs. — See note 12. 13. EviDENCi:— d. Witnesses.— K,novr\e&ge as Expert.— See note 38. 16. Injunctions. — The refusal of the court of original jurisdiction to allow damages for the period during which the temporary restraining order, granted pursuant to U. S. Rev. Stat., § 718, U. S. Comp. Stat. 1901, p. 580, was in force, upon the undertaking given as a condition of granting such order, can not be sustained as an appropriate exercise of discretion, where, by such order, the postmaster general was restrained from refusing to transmit certain publica- tions at second-class rates, as theretofore, and the result of the litigation was to establish not only the right of the government to receive additional postage pending the controversy, but also the fact that the publishers had received a very considerable service from the government in carrying the publications through the mails at a rate less than that which it was entitled to charge.-*"^^ 18. Interve^ntion. — See note 49. 25. Nkw Triai^s. — See note 75. 27. Pleadings — a. Supplemental Pleadings. — The granting of leave to file an amended and supplemental bill is a matter within the discretion of the court, and its action will not be reviewed in an appellate court unless there has been a gross abuse of this discretion. ^■^^ consolidated cause arising out of the fi- nancial difficulties of a corporation whose property is in the hands of a receiver, based upon an affidavit as to the absence of material witnesses, is not an abuse of discretion, where the matter had been pending for more than a year, and ail the parties in interest had acquiesced in the ateps taken by the court for the purpose of bringing the cause to a speedy con- clusion and thus avoiding further loss, and had complied with the terms of the order setting the cause for trial, and taken ad- vantage of the rights which it conferred. Valdes v. Central Altagracia, 225 U. S. 58, 56 L. Ed. 980, 32 S. Ct. 664. 988-12. Costs in general. — It is well settled in the federal supreme court that an appeal prosecuted only for costs must be dismissed. Wingert v. First Nat. Bank, 223 U. S. 670, 56 L. Ed. 605, 32 S. Ct. 391, citing Paper Bag Cases, 105 U. S. 766, 26 L. Ed. 959. See, also, post, COSTS. An appeal from a decree refusing to en- join the construction of a new building by a national bank, which is prosecuted as one for costs only, because of the com- pletion of the new building pending the litigation, will be dismissed. Wingert v. First Nat. Bank, 223 U. S. 670, 56 L. Ed. 605, 32 S. Ct. 391. 992-38. Witnesses — Expert witness. — The discretion of the trial judge in de- termining whether a given nonexpert wit- ness has the qualifications which will per- mit him, to the profit of the jury, to state his opinion upon an issue of mental ca- pacity, should not be reviewed on appeal unless the decision is clearly erroneous. Decree (1907), 29 App. D. C. 460, affirmed. Turner v. American, etc., Trust Co., 213 U. S. 257, 53 L. Ed. 788, 29 S. Ct. 420. 993-47a. Injunctions. — Houghton v. Meyer, 208 U. S. 149, 52 L. Ed. 4S2, 28 S. Ct. 234. See, also, post. INJUNCTIONS. 993-49. Disallowance of motion to in- tervene not reviewable. — Ex parte Leaf Tobacco Board, 222 U. S. 578, 56 L. Ed. 323, 32 S. Ct. 833. 998-75. Allowance or refusal of new trial. — It has been frequently decided that the allowance or refusal of a new trial rests in the sound discretion of the trial court and its action in that respect can not be made the basis of review by writ of error to the federal supreme court. Holmgren v. United States, 217 U. S. 509, 521, 54 L. Ed. 861, 30 S. Ct. 588. See, also, post, NEW TRIALS. The denial of a motion for a new trial can not be treated as more than a matter of discretion on a ground for reversal ex- cept in very plain circumstances indeed. Holt V. United States, 218 U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, citing Mattox v. United States, 146 U. S. 140, 36 L. Ed. 917, 13 S. Ct. 50; Holmgren v. United States, 217 U. S. 509, 54 L. Ed. 861, 30 S. Ct. 588; Pickett v. United States. 216 U. S. 456, 54 L. Ed. 566, 30 S. Ct. 265. The denial of a motion for a new trial, raising for the first time the objection that the jury was permitted to take into the jury room the indictment, which con- tained an indorsement showing the con- viction of the accused on a count thereof at a former trial, is not reviewable in the federal supreme court. Holmgren v. United States, 217 U. S. 509, 54 L. Ed. 861, 30 S. Ct. 588. affirming judgment (1907), 156 F. 439, 84 C. C. A. 301. 1001-84a. Leave to file amended and supplemental bill. — Rio Grande Dam., etc., Co. V. United States, 215 U. S. 266, 277, 54 114 Vol. I. APPEAL AND ERROR. 1001-1012 e. JVithdraival and Striking Out Pleadings. — See note 95. 27^. Powe:r to Punish for Contempt. — The only question that can arise on the review of a contempt proceeding in the supreme court is as to the juris- diction of the lower court, since the power to punish for contempt is a discre- tionary power, and, if fairly exercised in a case within the jurisdiction of the court, no review can be had.^^'' 39. Acts of Officers of thf Various Dfpartmfnts. — See note 17. E. Review of Questions of Fact — 1. In General. — See notes 24, 27. 3. Concurrent Decisions of Two Inferior Courts — a. In General. — See note 42. L. Ed. 190, 30 S. Ct. 97. See, generally, post, PLEADING. Permitting the filing of a supplemental bill after the case has been remanded by an appellate court for the production of further evidence can not be deemed an abuse of the trial court's discretion, where the facts set forth in such bill grew out of and were connected with the same trans- action out of which the litigation arose, and were germane to the object of the suit, and where all the grounds of relief, even if not existing when the original bill was filed, were alleged to exist when the supplemental bill was tendered, especially in view of the provisions of Comp. Laws N. M. 1897, § 2685 (Code Civ. Proc. subsec. 87), that a party may be allowed, on motion, to make a supplemental com- plaint, answer, or reply alleging facts ma- terial to the cause, or praying for any other or dififerent relief, order, or judg- ment. Decree, United States v. Rio Grande Dam & Irrigation Co. (1906). 85 P. 393, 13 N. M. 386, affirmed. Rio Grande Dam. etc., Co. v. United States. 215 U. S. 266. 54 L. Ed. 190, 30 S. Ct. 97. 1001-95. Withdrawal and striking out pleadings. — -An exception to the refusal of the trial court to reconsider its order, made on defendant's motion, permitting the withdrawal of a plea in abatement and the filing of a plea in bar, and to allow the trial of the issue joined on the plea in abatement, is not available in the federal supreme court. Judgment (1904). 23 App. D. C. 551, reversed. Chunn v. City, etc.. Railway, 207 U. S. 302, 52 L. Ed. 219. 28 S. Ct. 63. See, also, post. PLEADING. ■'002-99a. Power to punish for contempt. — In re Consolidated Rendering Co., 66 A. 790. 80 Vt. 55. judgment affirmed. Con- solidated Rendering Co. ?'. Vermont, 207 U. S. 541. 52 L. Ed. 327, 28 S. Ct. 178. See post, CONTEMPT. 1005-17. Acts of officers of the various departments in general. — If it does not affirmatively appear that the executive of- ficers of the federal government have acted in some unlawful or improper way and abused their discretion, their findings are conclusive and irreviewable bj^ the federal supreme court. Tang Tun 7'. Edsell, 223 U. S. 673, 56 L. Ed. 606, 32 S. Ct. 359, cit- ing United States v. Ju Toy, 198 U. S. 253, 49 L. Ed. 1040, 25 S. Ct. 644; Chin Yow z\ United States, 208 U. S. 8, 52 L. Ed. 369, 28 S. Ct. 201; Ness v. Fisher, 223 U. S. 683, 56 L. Ed. 610, 32 S. Ct. 356. 1005-24. Review of questions of fact in general. — The facts and the conclusions to be drawn from them are for the jury, and can not be reviewed by the federal su- preme court upon writ of error. Standard Oil Co. V. Brown, 218 U. S. 78, 54 L. Ed. 939, 30 S. Ct. 669, affirming judgment in 31 App. D. C. 371. 1008-27. The federal supreme court must accept the conclusions of the court below on a question of fact, unless clearly and manifestly wrong. Judgment, United States Min. Co. v. Lawson (1904), 134 F. 769, 67 C. C. A. 587, affirmed. Lawson z: United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. 1012-42. Concurrent decisions of two in- ferior courts in general. — Continental Pa- per Bag Co. V. Eastern Paper Bag Co., 210 U. S. 405, 52 L. Ed. 1122, 28 S. Ct. 748. The verdict of the jury, approved by the trial and appellate courts, settles the disputed questions of fact. El Paso, etc., R. Co. r. Vizard, 211 U. S. 608, 611, 53 L. Ed. 348, 29 S. Ct. 210. Suit in equity. — Concurrent findings of facts of the courts below in a suit in equity will not be disturbed by the fed- eral supreme court on appeal unless clearly erroneous. Judgment (1906), 144 F. 83, 75 C. C. A. 241, affirmed. Dun v. Lun^ber- men's Credit Ass'n, 209 U. S. 20, 53 L. Ed. 66.3, 28 S. Ct. 335; Page 7'. Rogers. 211 U. S. 575, 53 L. Ed. 332. 29 S. Ct. 159. Suit to set aside fraudulent conveyance. — Concurrent findings of fact In' the two lower courts in a suit to set aside a con- veyance as in fraud of creditors will or- dinarily be accepted by the federal su- preme court on appeal. Merillat v. Ilen- sey, 221 U. S. 333. 55 L. Ed. 758. 31 S. Ct. 575. affirming decree (1908). 32 App. D. C. 64. Translation of will. — Concurrent find- ings of the two lower courts on the ques- tion as to what is the correct English translation of a will written in the Ha- waiian language will be followed by the 115 1018 APPEAL AND ERROR. Vol. I. 7. We;ight and SuFficiKNCY OF Evidence. — See note 61. supreme court on appeal from the Ha- waiian suoreme court. Gray v. Noholoa, 214 U. S."l08, 53 L. Ed. 931, 29 S. Ct. 571. Patent infringement cases. — Concurrent findings of fact bj^ the two lower courts on the question of infringement of a pat- ent will ordinarily not be revised by the federal supreme court. Decrees (1907), 154 F. 65, 83 C. C. A. 177, affirmed, and (1908), 159 F. 436, 86 C. C. A. 416, re- versed. Rumford Chemical Works v. Hygienic Chemical Co., 215 U. S. 156, 54 L. Ed. 137, 30 S. Ct. 45. Concurrent findings of the courts below that the Liddell patent No. 558, 969,_ for an improvement in paper bag machines, which combines a rotary cylinder with a forming plate oscillating about its rear edge upon the surface of the cylinder, is a broad invention, and is infringed by a machine in which the surface of the cylinder is depressed away from the form- ing plate, while the patent adopts the de- vice of causing the pivot or axis of the forming plate to yield away from the cylinder, will not be disturbed by the fed- eral supreme court on certiorari, as clearly erroneous. Continental Paper Bag Co. ^'. Eastern Paper Bag Co., 210 U. S. 405, 52 L. Ed. _ 1122,, 28 S. Ct. 748. Findings of fact made by an auditor to whom a case is referred to state the ac- count, and confirmed by the courts below, will be affirmed by the supreme court of the United States, unless clearly erro- neous. Judgment, Waggaman v. Earle (1905), 25 App. D. C. 582; Earle v. Wagga- man, reversed. Earle v. Myers, 207 U. S. 244, 52 L. Ed. 191. 28 S. Ct. 86. Suit to restrain sale of copyrighted pub- lications. — Concurrent findings of the courts below in a suit to restrain the sale of copyrighted publications at less than the fixed price, that there was no satisfac- tory proof that the defendant had induced and persuaded sundry jobbers and dealers, Avho had obtained copyrighted books from the complainants, to deliver the same to tlie (defendant for sale at retail at less than the prices fixed by the complainants, and in violation of the agreement upon which the books were obtained, will not be dis- turbed by the federal supreme court, on aopeal, if not clearly erroneous. Judg- ment (1906). 147 F. 28, 78 C. C. A. 122, af- firmed. Scribner v. Straus, 210 U. S. 352, 52 L. Ed. 1094, 28 S. Ct. 735. Negligence. — A verdict finding that a construction company was guilty of neg- ligence toward a locomotive fireman in its employ who was injured by the giv- insr way of a pile bridge during high water will not be disturbed by the federal su- preme court, where it has been approved by both the trial and territorial supreme courts, and there was evidence that the bridge had once before given way in time of high water, and was rebuilt without change of plan. Judgment (1906), 87 P. 320, 17 Okl. 355, affirmed. McCabe, etc., Constr. Co. v. Wilson, 209 U. S. 275, 52 L. Ed. 788, 28 S. Ct. 558. Collision cases. — Concurrent findings of both the courts below as to the density of a fog and the rate of the speed of a steam- ship at the time of collision will not be disturbed by the federal supreme court on appeal, unless such findings are so un- warranted by the evidence as clearly to be erroneous. La Bourgogne, 210 U. S. 95. 52 L. Ed. 973, 28 S. Ct. 664. Partnership. — Concurrent findings of the two courts below that two brothers were partners, and that the stock in trade be- longed to the firm, are not so clearly er- roneous as to call for reversal, where there was evidence that one brother, with the original intention of forming a cor- poration, furnished the capital, and the other his personal services in disposing of it, and that the latter was interested in the profits, if any, and at the same time was not a debtor of the former, and there was some evidence that he also contributed to the assets. Manson v. Williams, 213 U. S. 453, 53 L. Ed. 869, 29 S. Ct. 519. An allowance for counsel fees out of funds in court will not be disturbed as ex- cessive, where the two lower courts have concurred in the amount allowed as rea- sonable. Decree (1909), 172 F. 1, 96 C. C. A. 587, affirmed. United States v. Car- ter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. 1018-61. Weight and sufficiency of evi- dence. — Where there is evidence proper for the consideration of the jury, the ob- jection that the verdict is against the weight of evidence or that the damages al- lowed are excessive can not be considered by the federal supreme court. Lincoln v. Power, 151 U. S. 436, 438, 38 L. Ed. 224, 14 S. Ct. 387; Humes v. United States. 170 U. S. 210, 42 L. Ed. 1011, 18 S. Ct. 602; Herencia z\ Guzman, 219 U. S. 44, 55 L. Ed. 81, 31 S. Ct. 135, citing Express Co. 7'. Ware, 20 Wall. 543, 22 L. Ed. 422; New York, etc., R. Co. v. Winter, 143 U. S. 60, 75. 36 L. Ed. 71. The objection that the verdict in a neg- ligence action was against the weight of evidence can not be considered by the fed- eral supreme court on a writ of error, where there is evidence proper for the consideration of the jury. Herencia v. Guzman, 219 U. S. 44, 55 L- Ed. 81, 31 S. Ct. 135. Appeal from District of Columbia. — Upon a writ of error to the court of ap- peals of the District of Columbia it is not within the province of the federal supreme court to weigh questions of evidence. Co- 116 Vol. I. APPEAL AND ERROR. 1020-1032 8. ExcESSivKNEss OP Damages. — See note 69. 10. Decisions oe Land Department. — See note 80. 12. How Findings oe Fact by the Court May Be Reviewed — b. Review of Findings of Court— (2) Statutory Rule— hh. To What Courts Applicable.— See note 8. ff. Form and Sufficiency of Findings — bbb. Facts Must Be Found by Circuit Court. — See note 18. lumbia Heights Realty Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 1020-69. Excessiveness of damages in general. — The objection that the damages allowed in a negligence action were ex- cessive can not be considered by the fed- eral supreme court on a writ of error where there is evidence proper for the con- sideration of the jury. Herencia v. Guz- man. 219 U. S. 44, 55 L. Ed. 81, 31 S. Ct. 135. 1022-80. Decisions of land department. — As far as a decision of the land depart- ment involves a question of fact it is con- clusive upon the courts. And this rule is applied in cases where there is a mixed question of law and fact, unless the court is able to separate the question as to see clearly what and where the mistake of law- is. Whitcomb v. White, 214 U. S. 15, 53 L. Ed. 889, 29 S. Ct. 599. See, also, post, PUBLIC LANDS. A finding of the land department in favor of a homestead entry in a contest with persons claiming to have been oc- cupants of the premises as a town site, which rests, not solely upon the fact that the application for the homestead entry was filed a few hours before that of the trustee for the occupants of the town site, but rather chiefly on the priority of the homesteader's equitable rights, must be regarded as conclusive by the federal su- preme court, especially where such finding is reinforced by the judgments of the state courts, unless there is the clearest and most convincing evidence of mistake or injustice. Whitcomb v. White, 214 U. S. 15, 53 L. Ed. 889, 29 S. Ct. 599. 1031-8. Reviev^^ of findings of district court. — Where the trial is in the district court without a jury in the nature of a submission to a arbitrator, the court's de- termination of the issues of fact and of the questions of law supposed to arise upon its special finding is not a judicial determination, and therefore the circuit court of appeals is without power to con- sider the sufficiency of the facts found to support the judgment. The power of that court is limited to a consideration of such questions of law as may have been pre- sented by the record proper, independ- ently of the special finding; such as whether the pleadings were sufficient to support the judgment. Campbell v. United States, 224 "^U. S. 09. BC, L. Ed. 684, 32 S. Ct. 398, citing Campbell v. Boyreau, 21 How. 223, 16 L. Ed. 96; Rogers v. United States, 141 U. S. 548, 35 L. Ed. 853. The circuit court of appeals has no power to consider the sufficiency of the facts found by the district court to sup- port the judgment in an action at law, tried without a jury, contrary to U. S. Rev. Stat., § 566, U. S. Comp. Stat. 1901, p. 461, since such a trial was in the nature of an unauthorized submission to an ar- bitrator, and the court's determination was not a judicial one; the provisions of §§ 649, 700, which provide for such a trial and review, being in terms limited to cases in the circuit courts. Campbell v. United States, 224 U. S. 99, 56 L. Ed. 684, 32 S. Ct. 398. 1032-18. Facts must be found by cir- cuit court. — "It is insisted that the find- ings of the circuit court should have bound and concluded the court of appeals upon questions of fact. The difficulty with this contention is that there is nothing to show what the circuit court found to be the facts. Whatever might have been sug- gested by the course of the argument at the hearing, the comments of the court upon such argument, or in announcing its decision, there is nothing in the record to indicate whether its decision was based upon a question of fact or a matter of law. The record only contains its decree, dismissing the bill. All else is a matter of surmise, except as may be inferred from the allegations of the pleadings and the scope of the testimony. While it is ap- parent that the circuit court must have based its decision upon one of two or three grounds, yet upon which it is not certain. The circuit court of appeals made no separate finding of facts, but it filed an opinion which indicates the scope of its decision, and it is the decree of that court which is before us for consideration. The attitude of the case is very like that of one in which a trial court refers all things to a master who takes the testi- mony and reports it, with a general find- ing for the plaintiff or defendant, upon which report the trial court states its views of the facts and the law and en- ters its decree. An appellate court re- viewing such decree will give its consid- eration to the conclusions stated by the trial court, irrespective of the report of the master, unless the issue be so nar- row that sustaining the decree of the court necessarily involves an overruling of 117 1048-48 APPEAL AND ERROR. Vol. II. kk. Review of Findings upon Questions of Fact.— The federal supreme court will not review the conclusions of the court below upon the merits of the con- troversy, when such conclusions are embraced in the findings of fact."^^"" e. Review of Findings by Referees, Arbitrators, etc. — Findings of facts made by an auditor to whom a cause is referred to ascertain the damages resulting from the wrongful suing out of a temporary restraining order will not be set aside on appeal unless it is shown that there has been an error in law or a con- clusion of fact unwarranted by the evidence.^^* The general rule respecting the conclusiveness of a master's findings of fact when confirmed by the court will not be applied by the federal supreme court on an appeal from a decree enjoining the enforcement of a municipal ordinance fixing maximum water rates, on the ground that the ordinance is invalid under Const. U. S. Amend. 14, as confiscatory.*^" V. Certificate of Division of Opinion, A. Under the Acts of 1802 and 1872—11. Affirmance: or Reversal — b. Division of Opinion. — See note 68. B. Under Circuit Court of Appeals Act — 1. In General. — By the Judiciary Act of March 3, 1891, a review by certificate is limited to the certificate of its equivalent by the circuit courts, made after final judgment, of the question, when raised, of their jurisdiction as courts of the United States, and to the certificate by the circuit courts of appeal of questions of law in relation to which the advice of the federal supreme court is sought as therein provided, which certificates are governed by the same rules as were formerly applied to certifi- cates of division.'^ 1^ 5. Questions to Be Brought Up and Considered — e. Discretionary Mat- ters. — See note 83. the master on a matter of fact." Lawson V. United States Min. Co., 207 U. S. 1, 11, 52 L. Ed. 65, 28 S. Ct. 15. 1048-78a. Review of findings upon questions of fact. — Will t'. Tornabells, 217 U. S. 47, 54 L. Ed. 660, 30 S. Ct. 424. The findings of fact in a creditors' suit, which are not reviewable in the federal su- preme court, embrace a statement accom- panying the findings, to the effect that certain conversations between an attorney and client were excluded because the plan outlined by the latter did not tend to es- tablish a fraud on creditors so as to ex- clude the claim of privilege, since such statement really shows that, instead of re- jecting the testimony, the court weighed and considered it, and its finding that the conversation did not tend to show the fraud which it was asserted it did show, and which was the same fraud charged in the bill, was but an expression of the con- clusion of the court upon the facts in- volved in the merits of the controversy. Will V. Tornabells, 217 U. S. 47, 54 L. Ed. 660, 30 S. Ct. 424. 1062-48a. Findings of facts made by an auditor. — Decree (1906), 28 App. D. C. 271, affirmed. Hutchins v. Munn, 209 U. S. 246, 52 L. Ed. 776, 28 S. Ct. 504. 1062-48b. Exception to rule. — Knoxville V. Knoxville Water Co.. 212 U. S. 1, 53 L. Ed. 371. 29 S. Ct. 148. 45-68. Division of opinion. — Where the supreme court is equally divided on a cer- tificate of division in opinion of the judges of the circuit court, the case will be re- manded to the circuit court without an- swer. Richey v. Williams (U. S.), 20 L. Ed. 238. 46-71a. Under Circuit Court of Appeals Act. — Baltimore, etc., R. Co. v. Interstate Commerce Comm., 215 U. S. 216, 220, 54 L. Ed. 164, 30 S. Ct. 86. 48-83. Discretionary matters. — Defend- ants in an action for contributory infringe- ment of a patented rotary mimeograph by a sale of ink to the purchaser in violation of a license restriction that it should be used only with the ink made by the pat- entee can not, where the facts certified to the United States supreme court state that they made a direct sale of the ink to the user of the patented article with knowl- edge that, under the license from the patentee, she could not use such ink in connection with the machine without in- fringement of the monopoly of the pat- ent, and that the sale was made with the expectation that it would be used in con- nection with such mimeograph, claim that the sale of the ink was not an infringe- ment as it might be used in a noninfring- ing way. Henry v. Dick Co., 224 U. S. 1, 56 L. Ed. 645, 32 S. Ct. 364. 118 Vol. II. APPEAL AND ERROR. 48-52 6. Form, Contents and Sufficiency of Certificate — a. In General. If the certificate conforms, in substance, with the statute, § 6 act March 3 1891, c. 517, 26 Stat. 826, it is sufficient.s^a d. Certificate Must Present a Distinct Point or Proposition of Law — See note 91. 7. Review of Questions of Fact. — See note 92. 8. Right to Certify the Whoee Case to this Court. — See note 93. 11. Affirmance — Division of Opinion. — Afftrmances in the federal su- preme court, upon equal division of opinion, of rulings of the circuit courts of appeals against the legality of a tax, are not such authoritative determinations of the question as to preclude one of the latter courts, when called upon again to consider the question, and finding a decision of another circuit court of ap- peals opposed, from certifying such question to the supreme court for determina- tion.99^ VI. Parties and Persons Entitled to Appeal. A. Who Entitled to Appeal — 1. In General. — See note 1. 48-85a. Conformity in substance. — Hertz V. Woodman, 218 U. S. 205, 211, 54 L. Ed. 1001, 30 S. Ct. 621. 49-91. Certificate must present a dis- tinct point or proposition of law, — It has been established by repeated decisions that questions certified to the federal su- preme court upon a division of opinion must be distinct points of law clearly stated so that they can be distinctly an- swered without regard to other issues of law or of fact; and not questions of fact or of mixed law and fact involving in- ferences of fact from particular facts stated in the certificates; nor yet the whole case even if divided into several points. Baltimore, etc., R. Co. v. Inter- state Commerce Comm., 215 U. S. 216, 221, 54 L. Ed. 164, 30 S. Ct. 86. A question presented to the federal su- preme court by a certificate from a circuit court of appeals need not be answered where it does not propound a distinct is- sue of law, but, in effect, calls for a de- cision of the whole case. The Folmina, 212 U. S. 354. 53 L. Ed. 546, 29 S. Ct. 363. 50-92. Review of questions of fact. — Mixed questions of law and fact which re- quire the construction of various acts of congress and the determination, in the light of all the testimony in a criminal case, of the question of whether or not the accused can be held guilty of any of- fense legally punishable by the United States, can not be certified by a circuit court of appeals, under Act March 3, 1891. c. 517, § 6, 26 Stat. 828 (U. S. Comp. St. 1901, p. 549), to the federal supreme court for decision. Hallowell v. United States, 209 U. S. 101, 52 L. Ed. 702. 28 S. Ct. 498. 51-93. Can not certify whole case to the federal supreme court. — Questions which involve the determination of the whole case can not be sent up to the federal su- preme court by a certificate from a circuit court of appeals. Chicago, etc., R. Co. v. Williams, 214 U. S. 492, 53 L. Ed. 1058, 29 S. Ct. 514. It has been settled that the whole case, even when its decision turns upon matter of law only, can not be sent to the federal supreme court by certificate of division. Baltimore, etc., R. Co. v. Interstate Com- merce Comm., 215 U. S. 216, 221, 54 L. Ed. 164, 30 S. Ct. 86. Cases involving monopolies and inter- state commerce. — The provisions of Act Feb. 11, 1903, c. 544, 32 Stat. 823 (U. S. Comp. St. Supp. 1907, p. 951), permitting the judges sitting in a suit arising under the acts involving monopolies and inter- state commerce, in case of division in opinion, to certify the case to the supreme court of the United States for review, does not authorize the sending up of the whole case, and therefore that court will not consider a case where no final judg- ment, order, or decree determinative of the merits is rendered, but the lower court orders that this case be certified for re- view to the supreme court, and that "a transcript of the record and proceedings of the cause aforesaid, together with all things thereunto relating, be transmitted to" that court, "and the same is trans- mitted accordingly." Baltimore, etc., R. Co. V. Interstate Commerce Comm., 215 U. S. 216, 54 L. Ed. 164, 30 S. Ct. 86; Southern Pac. Co. v. Interstate Com- merce Comm., 215 U. S. 226, 54 L. Ed. 169, 30 S. Ct. 89. 52-99a. Affirmance — Division of opinion. —Hertz V. Woodman, 218 U. S. 205, 54 L. Ed. 1001, 30 S. Ct. 621. 52-1. One who is not a party to a record and judgment is not entitled to appeal therefrom. Ex oarte Leaf Tobacco Board, 222 U. S. 578, 581, 56 L. Ed. 323, 32 S. Ct. 833. 119 53-61 APPEAL AND ERROR. Vol. IL 3. Party AcGRmvKD. — A person indicted for a crime can not sue out a writ of error to review the entry of a nolle prosequi. ^"^ 4. Appealable; Interest — a. In General. — See note 9. 5. Particular Parties and Persons Considered — k. States — (2) The State or United States in Criminal Cases — (a) Former Rule as to Right of United States to Appeal. — As to the right of the United States to appeal in criminal cases under the laws of the District of Columbia, 1901, § 935, the cir- cuit court of appeals act of March 3, 1891, and the prior statutes, see foot- note 55. (b) Statutes Allozving United States an Appeal in Criminal Cases — aa. Right of Appeal and Construction of Statute.^^^ — By a recent statute,^^'' it is provided 53-8a. Party aggrieved. — Where a de- fendant charged with illegally using the mails was discharged by nolle prosequi and sued out a writ of error, held that no one may complain until he has suffered and that the defendant had not been le- gally aggrieved when discharged from cus- tody. Lewis V. United States, 216 U. S. 611, 54 L. Ed. 637, 30 S. Ct. 438. 53-9. Appealable interest in general.— The jurisdiction of the federal supreme court can only be invoked by a party hav- ing a personal interest in the litigation. McCandless v. Pratt. 211 U. S. 437, 53 L. Ed. 271, 29 S. Ct. 144. Appeal from supreme court of Hawaii. — A property ov/ner and taxpayer has no such personal interest in a suit brought by him to restrain territorial officers from exchanging certain public lands of the territory of Hawaii for other lands as will sustain a writ of error from the federal supreme court to review a judgment of the territorial suprem.e court, denying the relief sought, where the suit is grounded on the theory that the proposed exchange is illegal under the territorial laws be- cause the lands sought to be exchanged are under lease and are in parcels of more than 1,000 acres. McCandless v. Pratt, 211 U. vS. 437, 53 L. Ed. 271, 29 S. Ct. 144. Error to state court. — Although the act of the state is charged to be in violation of the national constitution, and though the charge is not frivolous, this does not always give the federal supreme court ju- risdiction to review the judgment of a state court. The party raising the ques- tion of constitutionality and invoking the federal supreme court's jurisdiction must be interested in and affected adversely by the decision of the state court sustaining the act, and the interest must be of a per- sonal and not of an official nature. Brax- ton Countv Court v. State Tax Comm'rs, 208 U. S. 192. 197, 52 L. Ed. 450, 28 S. Ct. 275. A West Virginia county court and its members have no personal interest in a controversy over the validity, under Const. U. S., art. 1, § 10, as affecting county bondholders, of a state statute limiting the amount which may be raised by taxation, so as to sustain a writ of error from the supreme court of the United States to re- view a judgment of the West Virginia su- preme court of appeals, awarding a man- damus to compel the county court to change its assessment to conform to the requirements of the statute. Braxton County Court v. State Tax Comm'rs, 208 U. S. 192, 52 L. Ed. 450, 28 S. Ct. 275. 61-55. Former rule as to right of the United States to appeal. — See the title APPEAL AND ERROR, vol. 2, pp. 59, 60, 61, footnote 43-56, inclusive. "In United States v. Sanges, 144 U. S. 310, 36 L. Ed. 445, 12 S. Ct. 609 (decided April 4, 1892), it was held, on great con- sideration, that the right of review given by that provision of § 5, so far as it related to criminal cases, must be limited to re- view at the instance of the defendant after a decision in favor of the govern- ment. The decision was reached after a thorough examination of the federal leg- islation as to appellate jurisdiction in criminal cases and of the authorities in England and in the United States relating to criminal appeals, in which the court finds no precedent without express statu- tory enactment for any review of any judgment in favor of the accused." United States v. Dickinson, 213 U. S. 92, 53 L. Ed. 711, 29 S. Ct. 485. Laws of District of Columbia, 1901, § 935. — An appeal after a verdict of not guilty in a criminal case was not author- ized on behalf of the government by the provisions of Code of Laws D. C. 1901, § 935, that, "in all criminal prosecutions, the United States or the District of Co- lumbia, as the case may be, shall have the same right of appeal as is given to the defendant, including the right to a bill of exceptions; provided, that if, on such ap- peal, it shall be found that there was er- ror in the ruHngs of the court during the trial, a verdict in favor of the defendant shall not be set aside." United States v. Evans. 213 U. S. 297, 53 L. Ed. 803, 29 S. Ct. 507. 61-56a. See post, "In Criminal Cases," IX. D. 2, h. 61-56b. Recent statute. — Act of March 2, 1907, chap. 2564, 34 Stat, at L. 1246. See Herer.cia v. Guzman, 219 U. S. 44, 55 L- Ed. 81. 31 S. Ct. 135. 120 Vol. II. APPEAL AND ERROR. 61 that a writ of error may be taken by and on behalf of the United States from the district courts direct to the supreme court of the United States in all crim- inal cases, in the following instances, to wit: From a decision or judgment quashing, setting aside, or sustaining a demurrer to any indictment or any count thereof, where such decision or judgment is based upon the invalidity or con- struction of the statute upon which the indictment is founded. ^^"^ From a de- 61-56C. Decisions quashing indictments — Construction of Immigration Act. — The United States may bring error under Act Marcli 2, 1907, c. 2564, 34 Stat. 1246 [U. S. Comp. St. Supp. 1907, p. 209], to review a judgment of a federal circuit court, quashing an indictment for violat- ing Immigration Act March 3, 1903, c. 1012, § 18, 32 Stat. 1213, 1217, by willfully permitting an alien to land at another place than that designated by the immi- gration officers, because the indictment disclosed that the alien in question was a seaman. Judgment (C. C. A.), 152 F. 1, affirmed. Taylor v. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53; Schrot- ter V. United States, 157 F. 1005. Construction of oleomargarine laws. — • The United States may sue out a writ of error to the federal supreme court where the lower court quashes an indictment on the ground that the sixth section of the act of congress May 1902, c. 784, § 6. 32 Stat. 193, 197, requiring wholesale dealers in oleomargarine, etc., to keep certain books and make certain returns, is not applicable to corporations. United States V. Union Supply Co., 215 U. S. 50, 54 L. Ed. 87, 30 S. Ct. 15. Construction of statute as misapplica- tion national bank funds. — A judgment of a federal circuit court, quashing, on motion, certain counts of an indictment for willfully misapplying the funds of a national bank, in violation of Rev. St. U. S., § 5209 (U. S. Comp. St. 1901, p. 3497), because they possessed the defects which that court had found in a prior indictment, which it held did not charge a crime un- der the statute, is reviewable in the fed- eral supreme court under Act March 2, 1907, c. 2564, 34 Stat. 1246 (U. S. Comp. St. Supp. 1909, p. 220), as a decision quash- ing a count in an indictment based upon the construction of the statute upon which the indictment is founded. United States V. Heinze, No. 2, 218 U. S. 547, 54 L. Ed. 1145, 31 S. Ct. 102. The construction of a statute is con- cerned so as to give the supreme court of the United States jurisdiction of a writ of error to the United States district court in behalf of the government in a criminal case, under Act March 2, 1907, c. 2564, 34 Stat. 1246 (U. S. Comp. St. Supp. 1907, p. 209), where an indictment against a na- tional bank officer for making false re- ports to the comptroller of the currency is quashed because such officer is not an agent within the meaning of the statute defining the crime. United States v. Cor- bett, 215 U. S. 233, 54 L. Ed. 173, 30 S. Ct. 81, reversing 162 Fed. 687. Construction of statute relative to ille- gally acquiring coal lands. — Jurisdiction of the federal supreme court of a writ of error sued out under Act March 2, 1907, c. 2564, 34 Stat. 1246 (U. S. Comp. St. Supp. 1907, p. 209), to review a judgment of a federal district court quashing an indict- ment for a conspiracy illegally to acquire coal lands from the United States, be- cause of the opinion that the federal stat- ute did not prohibit the acts complained of, can not be successfully challenged on the theory that the indictment, and not the statute, was construed. Order (D. C. 1907), 157 F. 396, reversed. United States V. Keitel, 211 U. S. 370, 53 L. Ed. 230, 29 S. Ct. 123; United States v. Herr, 211 U. S. 404, 53 L. Ed. 251. 29 S. Ct. 134; S. C, 211 U. S. 406, 53 L. Ed. 252, 29 S. Ct. 135. Interpretation is included in the term "construction," as used in the act of March 2, 1907 (34 Stat, at L. 1246, chap. 2564, U. S. Comp. Stat. Supp. 1907. p. 209), authorizing a writ of error on behalf of the government from the federal su- preme court to review the judgment of a district or circuit court sustaining a de- murrer to an indictment when based upon the construction of the statute upon which such indictment is founded. United States V. Biggs, 211 U. S. 507, 53 L. Ed. 305, 29 S. Ct. 181. Interpretation as v/ell as construction of the statute, conceding an abstract dis- tinction between these two terms, is com- prehended by the provision of Act March 2, 1907, c. 2564, 34 Stat. 1246 (U. S. Comp. St. Supp. 1907, p. 209), authorizing a writ of error on behalf of the government froin the federal supreme court to review a judgment of a district or circuit court, quashing an indictment, when based upon the construction of the statute upon which the indictment is founded. Order (D. C. 1907), 157 F. 396, reversed. United States V. Keitel, 211 U. S. 370. 53 L. Ed. 230, 29 S. Ct. 123; United States v. Herr. 211 U. S. 404, 53 L. Ed. 251, 29 S. Ct. 134; S. C, 211 U. S. 406, 53 L. Ed. 252, 29 S. Ct. 135. But the action of the court below as to the mere construction of an indictment is not open to review on the writ of error authorized by such act. United States v. Biggs, 211 U. S. 507, 53 L. Ed. 305, 29 S. Ct. 181; United States v. Sullenberger, 211 U. S. 522, 53 L. Ed. 311, 29 S. Ct. 186; 121 61 APPEAL AND ERROR. Vol. II. cision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded.^*"* From the decision or judgment sus- taining a special plea in bar, when the defendant has not been put in jeopardy.^*'^ There is, however, the important proviso that no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant. This, of course, was added to obviate the constitutional . State, 31 Tex. of the court in refusing a continuance Crim. Rep. 13, 23 S. W. 191 ; Cooley, Const, based upon the absence of witnesses. Lim. 6th Ed. 469; 2 Sutherland, Stat. Valdes v. Central Altagracia, 225 U. S. 58, Constr. 2d Ed., § 286; Gulf, etc., R. Co. f. 56 L. Ed. 980, 32 S. Ct. 664. Dennis, 224 U. S. 503, 56 L. Ed. 860, 32 352-25a. Overruling demurrer to evi- S. Ct. 542. dence.— McCabe, etc., Constr. Co. v. Wil- 365-36b. Under Code of March 3, 1911. son, 209 U. S. 275, 52 L. Ed. 788, 28 S. —Washington Home v. .'Xmerican, etc., Ct. 558. _ Trust Co., 224 U. S. 486, 56 L. Ed. 854, 32 352-26a. Determination of unadjudicated S. Ct. 554. questions. — Virginia f. West Virginia, 222 139 365-372 APPEAL AND ERROR. Vol. 11. by the words, "including those pending on appeal," etc., which suggest that but for them appeals already taken would have fallen.^^c 0. Scope of Review — 1. In Gene^ral. — The federal supreme court, when reviewing a judgment of a circuit court of appeals, affirming a judgment of a circuit court in an action to recover damages for personal injuries, discharges its whole duty, with reference to the contention that the plaintiff was so clearly guilty of contributory negligence that it was the duty of the court to have di- rected a verdict for defendant, by giving to the record such examination and consideration as may be necessary in order to determine whether plain error was committed by the court below, and is not called upon to scrutinize the whole record for the purpose of discovering whether it may not be possible by a min- ute analysis of the evidence to draw inferences therefrom which may possibly conflict with the conclusions below as to the tendencies of the proof.^^^ 1^. Matters Not Raised in Court rElow. — Contentions which the record does not show to have been presented, directly or indirectly, to the trial court, by way of pleading or otherwise, before final judgment, and which were not made the subject of complaint in the motion for a new trial, and which were evidently regarded by the supreme court of the territory, on writ of error, as an afterthought, and not open under the state of the record, can not be considered- by the federal supreme court on an appeal from the supreme court of the ter- ritory.s^^ 7. Matters Not Decided bEeow. — Where the circuit court had not passed upon the question of whether it should follow the decisions of the federal su- preme court or the state court, in determining the rights of certain bond holders, the supreme court refused to express or intimate any opinion upon that subject, and held that the questions in the first instance must be passed upon by the circuit court.*'"^ 8. In Particular Cases — g. Revieiv by Supreme Court of Philippine Islands. — The supreme court of the Philippine Islands, in reviewing the judgment of the court of first instance, in a criminal case, may determine for itself the guilt or innocence of the defendant, upon the proofs presented at the trial."^^ The supreme court of the Philippine Islands, upon reversing a judgment of the court below in a criminal case on an appeal taken by the accused, has jurisdiction to convict him, on the same facts, of a different offense, carrying an increased sentence.'''^'' 365-36C. Railroad Co. v. Grant, 98 U. S. arising or acts done prior to such date, 398, 25 L. Ed. 231; Washington Home v. may be commenced and orcsecuted within American, etc.. Trust Co., 224 II. S. 4SG, the same time, and with the same effect. 56 L. Ed. 854, 32 S. C_t. 554. as if said repeal or amendments had not Appeals from District of Columbia. — been made." Washington Home v. Ameri- The right to a review in the federal su- can, etc., Trust Co., 224 U. S. 486, 56 L- preme court by writ of error or appeal of Ed. 854, 32 S. Ct. 554. a judgment or decree of the court of ap- 368-55a. Scope of review in general.^ peals of the District of Columbia in a Chicago Junction R. Co. v. King, 222 U. case in which the matter in dispute ex- .S. 222^ 56 L. Ed. 173, 32 S. Ct. 79. coeds $5,000 was not saved as to a cause 368-55b. Matters not raised in court be- pendmg in the court of appeals on Jan- low.— Southern Pine Lumber Co. v. uary 1, 1912, when the federal judicial code Ward, 208 U. S. 126, 52 L. Ed. 420, 28 S. took effect, by § 299 of that code, provid- Ct. 239, affirming in 85 P. 259, 16 Okl. 131. mg that its repealing provision "shall not r,r-n nn -n/r .^^ ^ j -j j u i afifect any act done, ^^or'any right accruing ^'ms, \ cf "\?elben Colfe^e °oTu or accrued, or any suit or proceeding, m- ^^ rno \o T t? 1 ' ^ to o« Q r, ±or eluding those pending on writ of error, ^^- ''^^- ^" ^- ^^^- ^'^'^^ ^8 S. Ct. 425. appeal, certificate, or writ of certiorari, 372-79a. Review by supreme court of in any appellate court referred to or in- Philippmes.— Pendleton v. United States, eluded within the provisions of this act, 216 U. S. 305, 54 L. Ed. 491. 30 S. Ct. 315. pending at the tim.e of the taking effect 372-79b. Jurisdiction to convict of a dif- of this act, but all such suits and proceed- ferent offense. — Flemister v. United States, ings, and suits and proceedings for causes 207 U. S. 372, 52 L. Ed. 252, 28 S. Ct. 129. 140 Vol. II. APPEAL AND ERROR. 372-385 h. Appeal from Order Granting Preliminary Injunction. — \\'here an appeal is allowed from an order granting a preliminary injunction the reviewing court is put to the duty of determining whether, on the face of the papers, the court below erred as a matter of law in granting the preliminary injunction.'^^'^ Q. Reversal — 2. Grounds for Reversal — a. In General.-^Oia. Matters of Local Practice. — While the federal supreme court is loath to overrule the decisions of courts other than courts of the United States upon matters of local practice, yet if such court unwillingly yields a consideration of the merits to matters of form, the supreme court will feel less hesitancy in overriding such decision."* f. Changing Theory of Case on Appeal. — It is a well-settled rule of appellate practice that where the parties, with the assent of the court, unite in trying a case on the theory that a particular matter is within the issues, that theory can not be rejected when the case comes before an appellate court for review. ^"^^ A judgment can not be reversed in the appellate court on the mere suggestion that, upon some other theory than that on which the case was tried, evidence might 'have been introduced which might have changed the result.^^*^ A suggestion as to want of parties below, made after final judgment, is not available on appeal when that suggestion conflicts with the issues as made up and upon which the case is tried, and which, if the suggestion be correct, will involve reversing the judgment at the request of appellants because of deceit practised by them upon the courts below. ^'^'^ 8. Rendition and Entry oe Judgme^nt — a. Rendering and Ordering Pinal Judgment — (1) In General. — Final judgment for plaintiff in error may be en- tered where the findings of the court below^ are full and adequate, and protect every substantial right of the party in whose favor the judgment originally was entered.''^'' R. Affirmance — 2. Grounds for Affirmance — aj^. That Contentions Urged for Reversal Are Stare Decisis. — A judgment of a federal circuit court will be affirmed on motion, under supreme court rule 6, subd. 5, where the ques- 372-79C. Order granting preliminary in- tion against them for attesting a false re- 3 unction. — United States v. Baltimore, port of the condition of the bank, in re- etc, R. Co., 225 U. S. 306, 56 L. Ed. 1100, liance upon vv^hich plaintiff purchased stock 32 S. Ct. 817. of the bank, can not urge on appeal that 374-7a. On matters of local practice. — if the action in the trial court had not Taylor v. Leesnitzer, 220 U. S. 90, 55 L. '^^^^ based on deceit, instead of on a Ed 38'' 3] S Ct 371. violation of the national bank act, they oDft oc /->i. • iU « f „ „-. « would have been able to make a showing 380-35a. Changing heory of case on ap- ^^^^^^ ^j^j^j^ ^^^^. ^^^,^ ^^^^^ ^^ peal.-ban Juan Light etc Co^ z'. Re- j^^^^, ^^ knowingly violating such act, cTZo ' ' ^^here the action was tried on the theory that, to maintain an action for deceit. An objection that the complaint m an knowledge of the falsity of the represen- action for negligence causing the death of tations must be shown, and their defense plaintiff's husband did not sufficiently ^^-^s that the requirements of the national charge the negligence which was found ^jj^i^ ^ct had not been violated. Thomas to have caused the accident is not avail- ^. Taylor. 224 U. S. 73, 56 L. Ed. 673. 32 able in an appellate court, where the case g qi_ 403. was tried on the theory that such negli- 380-35c. Suggestion as to want of parties gence was within the issues, and both below. — Southern Pine Lumber Co. z: parties introduced evidence bearing on Ward, 208 U. S. 126, 52 L. Ed. 420, 28 S. that question, v^^ithout objection. San Ct. 239. affirming 16 Okl. 131. So P. 259. Juan Light, etc., Co. v. Requena, 224 U. 385-66a. Rendering and ordering final S. 89, 56 L. Ed. 680, 32 S. Ct. 399. judgment.— Judgment (C. C. A. 1908). 380-35b. Suggestion that another the- Thomas v. Green County, 159 F. 339, af- ory might have changed result. — Thomas firmed. Green County f. Thomas, 211 U. t' Tavlor 224 U. S. 73. 56 L. Ed. 673, 32 S. 598. 53 L. Ed. 343, 29 S. Ct. 168. See S. Ct.' 403. post, MANDATE AND PROCEEDINGS Directors of a national bank, in an ac- THEREON. 141 392-412 APPEAL AND ERROR. Vol. 11. tions urged as a basis for reversal have been so plainly foreclosed by the de- cisions of the supreme court as to make further argument unnecessary. ^^^ g. Division of Opinion — (1) In General. — See note 39. (4) Force and Effect of Judgment — bb. The Rule of Precedents or Stare Decisis. — See note 52. 5y2. Affirmance without PrFjudicf. — Where the ends of justice require that the appellant's right to further relief be not foreclosed by the judgment of affirmance, the appellate court may affirm without prejudice to his right to any such relief. ^■^^ S. Modification. — Power to modify, on appeal, a judgment of a dis- trict court in mandamus, is included in the grant to the New ]\Iexico su- preme court by Comp. Laws N. M. 1897, § 897, of the authority to render such other judgment as may be right and just and in accordance with law in cases which may have been tried by the equity side of the court, or which may have been tried by a jury on the common-law side of the court, or in which a jury may have been waived and the case tried by the court or judge.'*-*^ U. Force and Effect of Decision — 1. On Second Appeal — a. In General. — See note 64. 392-20a. Contentions urged are stare decisis. — Missouri Pac. R. Co. v. Castle, 224 U. S. 541, 56 L- Ed. 875, 32 S. Ct. 606. 395-39. Upon equal division among judges, judgment is affirmed. — Hertz v. Woodman, 218 U. S. 205, 54 L. Ed. 1001, 30 S. Ct. 621, citing early cases. When the federal supreme court in the exercise of its appellate powers is called upon to decide whether that which has been done in the lower court shall be re- versed or affirmed, it is obvious that that which has been done must stand unless reversed by the affirmative action of a ma- jority. Hertz V. Woodman, 218 U. S. 205, 212, 54 L. Ed. 1001, 30 S. Ct. 621. Therefore, it has been the invariable practice to affirm, without opinion, any judgment or decree w*hich is not decided to be erroneous by a majority of the court sitting in the cause. Hertz z'. Woodman. 218 U. S. 205, 212, 54 L. Ed. 1001, 30 S. Ct. 621. Rule in England. — "A diflferent rule seems to have been sanctioned in the Eng- lish courts. Calherwood z'. Caslin, 13 Meeson & Welby, 261; Beemish v. Beem- ish, 9 H. L. Cases, 274." Hertz v. Wood- man, 218 U. S. 205, 213, 54 L. Ed. 1001, 30 S. Ct. 621. 397-52. The rule of precedents or stare decisis. — Under the precedents of the su- preme court, and as seems justified by reason as well as by authority, an affirm- ance by an equally divided court is as be- tween the parties a conclusive determina- tion and adjudication of the matter adjudged, but the principles of law in- volved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in the supreme or in inferior courts. Hertz V. Woodman, 218 U. S. 205, 213, 54 L. Ed. 1001, 30 S. Ct. 621. 397-54a. Affirmance without prejudice. — Northern Pac. R. Co. v. McCue, 216 U. S. 579, 54 L. Ed. 624, 30 S. Ct. 423, af- firming State t'. Northern Pac. Ry. Co., 120 N. W. 869. The decree of a state court enjoining a carrier from further violation of a law fixing rates for the carriage of coal within the state, over the objection that the maximum rates so fixed are inadequate and confiscatory, will be affirmed by the federal supreme court, where the evidence leaves the question of reasonableness in doubt, but without prejudice to the right of the carrier to reopen the case by ap- propriate proceedings, if, after adequate trial, it thinks it can prove more clearly the confiscatory character of the rates. Decree, State f. Northern Pac. Ry. Co. (1909), 120 N. W. 869. affirmed. North- ern Pac. R. Co. z'. McCue, 216 U. S. 579, 54 L. Ed. 624, 30 S. Ct. 423, following Willcox z: Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. 410-49a. Modification in general. — Judg- ment, Territory z'. Board of Com'rs of Santa Fe County (N. M. 1907). 89 P. 252, affirmed. Commissioners z'. Coler, 215 U. S. 296, 54 L. Ed. 202. 30 S. Ct. 111. 412-64. On second appeal in general. — "In the absence of statute, the phrase, 'law of the case,' as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power. King z'. West Virginia, etc.. Lumber Co., 216 U. S. 92, 100, 54 L. Ed. 396, 30 S. Ct. 225; Remington 7'. Central Pac. R. Co., 198 U. S. 95, 100. 49 L. Ed. 959, 25 S. Ct. 577; Great Western Tel. Co. v. Burnham, 142 Vol. II. APPEARANCE BAIL. 415-416 Qualifications of Rule. — The holding of a territorial supreme court on the first appeal is not the law of the case for the federal supreme court when re- viewing a decree rendered on the second appeal.*'"^ Nor is a prior decision of a federal circuit court of appeals the law of the case for the supreme court when reviewing a later decision of the former court in the same case.^'"'' e. Matters Concluded — (1) Jurisdictional Matters. — See note 75. APPEAL BONDS.— See ante, Appeal and Error, p. 34. APPEARANCE BAIL.— See post, Bail and Recognizance. 1(32 U. S. 339, 343, 40 L. Ed. 991, 16 S. Ct. 850." Messenger v. Anderson, 225 U. S. 436, 56 L. Ed. 1152, 32 S. Ct. 739. "Of course this court, at least, is free when the case comes here. Panama R. Co. V. Napier Shipping Co., 166 U. S. 280, 41 L. Ed. 1004, 17 S. Ct. 572; United States V. Denver, etc., R. Co., 191 U. S. 84, 48 L. Ed. 106, 24 S. Ct. 33." Messenger z: An- derson, 225 U. S. 436, 56 L. Ed. 1152, 32 S. Ct. 739. An appeal from the circuit court to re- view an order refusing to modify a de- cree of dismissal of a bill to enjoin the enforcement of a municipal ordinance, en- tered pursuant to the mandate of the su- preme court on a former appeal, so as to make the dismissal without prejudice, will be dismissed for want of jurisdiction. United R. Co. z'. St. Louis, 220 U. S. 607. 55 L. Ed. 607, 31 S. Ct. 722. The right of the attorneys for the Cherokee Nation to counsel fees payable out of the moneys recovered for the bene- fit of the Eastern Cherokees in a suit over a claim against the United States, arising out of treaty stipulations, can not be chal- lenged by a supplemental petition filed in the court of claims, where the decree of that court, as affirmed on appeal by the supreme court, has determined every ques- tion bearing upon the right of such at- torneys to have their fees paid out of the award, save the single question of the amount of such fees. Eastern Cherokees V. United States, 225 U. S. 572, 56 L. Ed. 1212. 32 S. Ct. 707. 415-67a. Qualification of rule.^Zecken- dorf V. Steinfeld, 225 U. S. 445, 56 L. Ed. 115G, 32 S. Ct. 728. 415-67b. Prior decision of federal cir- cuit court. — Messenger v. Anderson, 225 U. S. 436, 56 L. Ed. 1152, 32 S. Ct. 739. 416-75. Matters concluded.— The de- cision of the federal supreme court on a former appeal that the lower court had jurisdiction of the case is conclusive on a second appeal. Richardson v. Ainsa, 218 U. S. 289, 54 L. Ed. 1044, 31 S. Ct. 23, af- firming decree in 95 P. 103, 11 Ariz. 359. A judgment of the circuit court of ap- peals affirming a conviction does not pre- clude a subsequent reversal for want of the trial court's jurisdiction, where the question is not presented on the first ap- peal. (C. C. 1909), Ex parte Harlan, 180 F. 119, decrees affirmed in Harlan 7'. Mc- Gourin, 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. 143 440 APPEARANCES. ' Vol. II. APPEARANCES. II. Persons Who May Appear, 144. 4. In Suits in Rem, 144. III. Mode of Making and Acts Which Constitute, 144 A. General Appearance, 144. 6. Filing Petition for Removal, 144. 8. Demurrer, 144. 10. Pleading to the Merits, 144. a. In General, 144. B. Special Appearance, 145. IV. Effect of Appearance, 145. A. General Appearance, 145. 1. Respecting Jurisdiction, 145. a. Jurisdiction of Subject Matter, 145. b. Jurisdiction over the Person, 145. (1) In General, 145. 2. As Waiving Privilege Respecting Particular Court, 145. 3. Summons and Process, 146. a. Want of Process, 146. (2) Nonservice of Process, 146. (a) In General, 146. c. Defective Service, 146. 8. Exemption from Arrest, 146. B. Effect of Special Appearance with Respect to Jurisdiction, 146. 1. Where General Rule Obtains, 146. 2. State Statutes Making Special Equivalent to General Appearance, 146. c. Not Binding on Federal Courts, 146. 3. Rules of Court Treating a Special as a General Appearance, 146. CROSS REFERENCES, See the title Appearances, vol. 2, p. 429, and references there given. In addition, see post. Removal of Causes. II. Persons Who May Appear. 4. In Suits in Rem. — See post, "Special Appearance," III, B. Ill, Mode of Making and Acts Which Constitute. A. General Appearance — 6. Filing Petition for Removal. — See post. Removal of Causes. 8. Demurrer. — The objection that a particular federal circuit court is with- out jurisdiction of a suit between citizens of different states because neither of the parties is a resident of the district is waived by demurring upon grounds reaching to the merits of the cause of action in addition to jurisdictional grounds, where, under the local practice, defendant could have made a special appear- ance by motion aimed at the jurisdiction of the court over his person, or by motion to quash the service of process.'*^ 10. Pleading to the Merits — a. In General. — See post, "As Waiving Priv- 440-43. Demurrer.— Western Loan, etc., Co. z'. Butte, etc., Min. Co., 210 U. S. 368, 52 L. Ed. 1101, 28 S. Ct. 730. 144 Vol. II. APPEARANCES. 442-448 ilege Respecting Particular Court," IV, A, 2 ; "Summons and Process " IV A, 3. ' . ' B. Special Appearance. — A defendant may raise the objection to the ju- risdiction over his person by making a special appearance by motion aimed at the jurisdiction of the court over his person to quash the service of process undertaken to be made upon him in the district wherein he was not personally liable to suit under the act of congress. ^*^ . Motion to Set Aside Attachment. — A person over whom personal juris- diction has not been obtained can appear specially to set aside an attachment of his property. ^'^^ IV. Effect of Appearance. A. General Appearance — 1. Respecting Jurisdiction — a. Jurisdiction of Subject Matter. — See note 51. b. Jurisdiction over the Person — (1) In General. — See note 52. 2. As Waiving PrivilRgr Respecting Particular Court. — See note 62. Where diversity of citizenship exists, so that the suit is cognizable in some circuit court, the objection that there is not jurisdiction in a particular district may be waived by appearance and pleading to the merits.*^-^ 442-50. Special appearance. — Western Loan, etc., Co. v. Butte, etc., Min. Co., 210 U. S. 368, 371, 52 L- Ed. 1101, 28 S. Ct. 720, following Shaw v. Quincy Min. Co., 145 U. S. 444, 36 L. Ed. 768, 12 S. Ct. 935; Matter of Moore, 209 U. S. 490, 503, 52 L. Ed. 904, 28 S. Ct. 585, 706. In Shaw V. Quincy Min. Co., 145 U. S. 444, 36 L. Ed, 768, 12 S. Ct. 935, the par- ties were "a citizen of Massachusetts and a corporation of Michigan, being citizens of states other than New York. A motion was made entering a special appearance for the purpose of setting aside the serv- ice. This matter of raising the question, it was held, did not amount to a waiver of the objection to jurisdiction. The same course was pursued with the approval of this court in In re Keasbey. etc., Co., 160 U. S. 221, 40 L. Ed. 402." Western Loan, etc., Co. V. Butte, etc., Min. Co.. 210 U. S. 368, 371, 52 L. Ed. 1101, 28 S. Ct. 720. Foreign corporations. — Mechanical Ap- pliance Co. T'. Castleman. 215 U. S. 437, 444, 54 L. Ed. 272, 30 S. Ct. 125. 442-50a. Motion to quash attachment. — A nonresident defendant over wliom per- sonal jurisdiction has not been obtained may appear specially in a suit in a federal circuit court for the sole purpose of mov- ing to quash the service of writs of at- tachment and garnishment upon its prop- erty in the district, on the ground that such property v/as not subject to attach- ment or garnishment. Davis v. Cleveland, etc., R. Co.. 217 U. S. 157, 54 L. Ed. 708, 30 S. Ct. 463. "The jurisdiction of the court, * * * depended upon the attachment, and the ap- pearance to set that aside was an appear- ance to obj.ect to the jurisdiction. In other wcjrds. the defendant was only in court through its property, and it appeared 12 U S Enc— 10 145 specially to show that it was improperly in court." Davis v. Cleveland, etc., R. Co., 217 U. S. 157, 174, 54 L. Ed. 708, 30 S. Ct. 463. 443-51. Jurisdiction of subject matter. —In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515, is a case where, upon its face, no circuit court of the United States had jurisdiction of the controversy, originally or by removal. In such a case the consent of the parties can not confer jurisdiction. Louisville, etc., R. Co. v. Mottley, 211 U. S. 149, 53 L. Ed. 126, 29 S. Ct. 42, and cases cited. A general appearance by the plaintiff in a federal circuit court after the cause has been removed from a state court does not waive an objection to the jurisdiction founded upon the total lack of any con- troversy of a federal nature, since in such cases consent of both parties can not con- fer jurisdiction. In re Winn, 213 U. S. 458. 53 L. Ed. 873, 29 S. Ct. 515. 444-52. Jurisdiction of person. — David- son Bros. Marble Co. v. United States. 213 U. S. 10, 53 L. Ed. 675, 29 S. Ct. 324. 327; Mechanical Appliance Co. v. Castle- man, 215 U. S. 437, 54 L. Ed. 272, 30 S- Ct. 125. Foreign corporations. — iMechanical Ap- pliance Co. f. Castleman. 215 U. S. 437. 442, 54 L. Ed. 272, 30 S. Ct. 125. 448-62. Privilege respecting particular court. — Western Loan, etc., Co. v. Butte, etc.. Min. Co., 210 U. S. 368, 372, 52 L. Ed. 1101, 28 S. Ct. 720. 448-62a. Pleading to merits — Where di- versity of citizenship exists. — flatter of Moore, 209 U. S. 490, 52 L. Ed. 904, 28 S. Ct. 585, 706, overruling anything to the contrary said in Ex parte Wisner. 203 U. S. 449, 51 L. Ed. 264. but leaving it other- wise untouched. In re Winn, 213 U. S. 448-458 APPEARANCES. Vol. IL The exemption of national banks from suits in state courts established elsewhere than in the county or city in which such bank is located, is a personal privilege which it waives by appearing and making defense without claiming the immunity. ^2b 3. Summons and Process — a. Want of Process — (2) Nonservice of Process (a) In General. — Want of service of process may be waived by a defendant appearing and pleading to the merits.^^'^ c. Defectk'e Service. — See note 67. 8. Exemption from Arrest. — Exemption from arrest in a district in which the defendant is not an inhabitant, or in which he is not found at the time of serving the process, is the privilege of the defendant, which he may waive by a voluntary appearance.^"^ B. Effect of Special Appearance with Respect to Jurisdiction — 1. Where General Rule Obtains. — See ante, "Special Appearance," III, B. 2. State Statutes Making Special Equivalent to General Appearance — c. Not Binding on Federal Courts. — A state statute, giving to a special ap- pearance, made solely to challenge the court's jurisdiction, the effect of a gen- eral appearance, is not binding upon the federal courts sitting in the state, not- withstanding the provisions of § 914 of the Revised Statutes of the United States, and must not be followed by the courts of the United States.*^^ 3. Rules oe Court Treating a Special as a Gener.^l Appearance. — A rule of a federal circuit court which treats as a general appearance a special appearance by a party sued in the wrong federal district, made solely for the purpose of objecting to the jurisdiction, without stating that, if the purpose for which such special appearance is made shall not be sanctioned or sustained by the court, he will appear generally in the case, is invalid, as substantially impair- ing his right under the act of March 3, 1891, § 5, to appear specially and object to the jurisdiction of the court, and bring an adverse decision directly to the supreme court for review. •^^'' 458, 5.3 L. Ed. 873, 29 S. Ct. 515; Western Loan, etc., Co. f. Butte, etc., Min. Co., 210 U. S. 368, 369, 52 L. Ed. llOl, 28 S. Ct. 720. Foreign corporation. — Mechanical Ap- pliance Co. f. Castleman, 215 U. S. 437, 442. 54 L. Ed. 272, 30 S. Ct. 125. 448-62b. National banks. — Matter of Moore, 209 U. S. 490, 502, 52 L. Ed. 904, 28 S. Ct. 585, 706. 449-64a. Want of service. — Mechanical Appliance Co. r. Castleman, 215 U. S. 437, 54 L. Ed. 272, 30 S. Ct. 125. 451-67. Defective service. — Western Loan, etc., Co. v. Butte, etc., Min. Co., 210 U. S. 368, 372, 52 L. Ed. 1101, 28 S. Ct. 720. Foreign corporations. — Mechanical Ap- pliance Co. V. Castleman, 215 U. S. 437, 442. 54 L. Ed. 272, 30 S. Ct. 125. 451-67a. Exemption from arrest. — Mat- ter of Moore, 209 U. S. 490, 501. 52 L. Ed. 904, 28 S. Ct. 585, 706. 458-81a. Not binding on federal courts. - — Western Loan, etc., Co. 7'. Butte, etc., Min. Co., 210' U. S. 368, 369, 52 L. Ed. 1101, 28 S. Ct. 720, following Mexican Cent. R. Co. V. Pinkney, 149 U. S. 194, 37 L. Ed. 699, 13 S. Ct. 859; Davidson Bros. Marble Co. v. United States, 213 U. S. 10, 53 L. Ed. 675, 29 S. Ct. 324. 327, approving Southern Pac. Co. v. Denton, 146 U. S 202, 36 L. Ed. 943, 13 S. Ct. 44; Galves- ton, etc., R. Co. V. Gonzales. 151 U. S. 496. 38 L. Ed. 248, 14 S. Ct. 401. See post, COURTS. 458-81b. Rules of court treating special as general appearance. — Davidson Bros. ]\Iarbie Co. :•. United States, 213 U. S. 10, 53 L. Ed. 675, 29 S. Ct. 324, 26 Stat, at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488, § 5. "It is bej^ond the power of the circuit court to make and enforce a rule which imposes upon defendants such conditions, and transforms an objection to the juris- diction into a waiver of the objection it- self. The jurisdiction of the circuit courts is fixed by statute, * * * and a defend- ant can not be compelled to waive an ob- jection to the jurisdiction over his person if he chooses seasonably to insist upon it, and any rule of court which seeks to com- pel a waiver is unauthorized by law and in- valid." Davidson Bros. Marble Co. t'. United States. 213 U. S. 10, 53 L. Ed. 675, 29 S. Ct. 324. 327. 146 Vol. II. ARBITRARY CLASS I PICA TION. 461 APPRAISEMENT.— See note la. APPROPRIATE.— See note 3. ARBITRARY CLASSIFICATION.— See post, Constitutionai. Law. 461-la. Arbitration and appraisement distinguished. — "An arbitration implies a difference, a dispute, that involves or- dinarily a hearing and all thereby implied. The right to notice of hearings, to pro- duce evidence and cross-examine that pro- duced is implied when the matter to be decided is one of dispute and difference. But when, as here, the parties had agreed that one should sell and the other buy a specific thing, and the price should be a valuation fixed by persons agreed upon, it can not be said that there was any dis- pute or difference. Such an arrangement precludes or prevents difference, and is not intended to settle any which has arisen. This seerns to be the distinction between an arbitration and an appraise- ment, though the first term is often used when the other is more appropriate." Omaha v. Omaha Water Co., 218 U. S. 180, 194, 54 L. Ed. 991, 30 S. Ct. 615. See post, ARBITRATION AND AWARD. The valuation of a waterworks plant, made by a board of appraisers where a municipality has elected, under legislative authority, to exercise its option to pur- chase at a value to be determined by three engineers, one each to be selected by the city and the waterworks company, and the third by the two so selected, is not vitiated in the absence of any evidence of actual bad faith, by the examination of the company's books by the appraisers without the consent of the city or the presence of its representatives. If this was a technical arbitration of a matter of dispute or difference between the parties, to be heard and decided upon the evidence admitted, the action of the appraisers would be such misconduct as would vitiate the award. In such matters the rule relating to judicial inquiry would ap- ply. But in an appraisement, such as that herein involved, the strict rules relating to arbitration and awards do not apply, and the appraisers are not so rigidly re- quired to confine themselves either to mat- ters within their own knowledge or to those submitted to them formally in the presence of the parties; but might reject, if they saw fit, evidence so submitted, and inform themselves from any other source, as experts who were at last to act upon their own judgment. Omaha z'. Omaha Water Co., 218 U. S. 180, 54 L. Ed. 991, 30 S. Ct. 615. 461-3. Lands reserved and appropriated, —In art. 2, Treaty of Jan. 31, 1855, whereby the Wyandotte Nation ceded their land to the United States for sub- division in severalty to the members, "ex- cept as follows, viz, the portion now enclosed and used as a public burying ground, shall be permanently reserved and appropriated for that purpose;" etc., the words "shall be permanently reserved and appropriated for that purpose," like the rest of the treaty, were addressed only to the tribe and rested for their fulfillment on the good faith of the United States — a good faith that would not be broken by a change believed by congress to be for the welfare of the Indians. A disposi- tion of the property under an act of con- gress could not be enjoined. Conlev v. Ballinger, 216 U. S. 84, 88, 54 L. Ed. 393, 30 S. Ct. 224. See post, INDIANS; TREA- TIES. 147 471-478 ARGBNTINB CONFEDERATION. Vol. 11. ARBITRATION AND AWARD. IV. The Submission, 148. C. Basis and Scope of Submission, 148. 1. Necessity for Dispute or Controversy between Parties, 148. VII. Hearing before Arbitrators, 148. A. Necessity for Hearing in Presence of Parties, 148. VIII. The Award, 148. B. Validity of Award by Majority of Arbitrators, 148. CROSS REFERENCES. See the title Arditration and Award, vol. 2, p. 464, and references there given. IV. The Submission. C. Basis and Scope of Submission — 1. Necessity egr Dispute or Con- troversy BETWEEN Parties. — See note 20. VII. Hearing before Arbitrators. A. Necessity for Hearing in Presence of Parties. — See note 61. VIII. The Award. B. Validity of Award by Majority of Arbitrators. — See note 70. ARGENTINE CONFEDERATION.— See post, Executors and Administra- tors. 471-20. "An arbitration implies a dif- out being guilty of misconduct, ference, a dispute, and involves ordinarily 478-70. Validity of award by majority a . hearing and all thereby implied." of arbitrators. — When a matter of purely Omaha v. Omaha Water Co., 318 U. S. private concern is submitted to the de- 180, 54 L. Ed. 991, 30 S. Ct. 615. termination of either arbitrators, or ap- 477-61. Right to hearing in presence of praisers, the rule seems to be that there parties. — The right to notice of hearings, must be unanimity of conclusion by such to produce evidence, and cross examine board, unless otherwise indicated by the that produced is implied when the matter terms of the submission. The rule is. to be decided is one of dispute and dif- however, otherwise when the submission ference. Omaha v. Omaha Water Co., is one which concerns the public. In such 218 U. S. 180, 54 L. Ed. 991, 30 S. Ct. 615, submissions, whether it be the arbitration in which case the court held that in the of a difference or the ascertainment of a case of an appraisal such rule did not ap- value, a majority inay act, imless other- ply, but the appraisers might properly ex- wise indicated by the agreement for sub- amine books and papers relating to the mission. Omaha v. Omaha Water Co., property in the absence of counsel, with- 218 U. S. 180, 54 L. Ed. 991, 30 S. Ct. 615. 148 Vol. II. ARISE. 489-492 ARGUMENT OF COUNSEL I. Control of Argument by Court, 149. C. Interruption of Argument, 149. II. Latitude of Argument, 149. CROSS REFERENCES. See the title Argument of Counsel, vol. 2, p. 489, and references there given. I. Control of Argument by Court. C. Interruption of Argument. — The court may properly interrupt counsel to ask him to make an argument that does not tend to degrade the administra- tion of justice. ^'^ II. Latitude of Argument. Comment on Admission of Evidence. — Any comment by counsel which is practically an impeachment of a ruling of the court on the admission of evi- dence is improper.3^ Comment on Written Statement Made Part of Evidence. — A written statement made a part of a witness' testimony is a proper subject of comment.-'*'' ARISE.— See note 1. 489-2a. Interruption of argument. — The court properly interrupts counsel to ask him to make an argument that does not tend to degrade the administration of justice, where counsel is appealing to race prejudice, and is asking the jury to be- lieve a white man not on his oath before a negro who is sworn, adding that the jury can "swallow those niggers" if it wishes, but counsel will not. Judgment, United States z'. Battle (C. C. 1907), 154 F. 540, affirmed. Battle v. United States, 209 U. S. .36, 52 L. Ed. 670. 28 S. Ct. 422. 489-3a. Comments on admission of evi- dence. — Thus it is improper for counsel for the accused in a criminal case to argue to the jury that the accused have been sub- stantially deprived of their constitutional right to be confronted by the witnesses against them. Hyde f. United States, 35 App. D. C. 451, writ of certiorari granted in Hyde v. United States, 218 U. S. 681. 54 L. Ed. 1207, 31 S. Ct. 228. 489-3b. Written statement admitted to be true. — Where a witness for the prose- cution in a criminal case admits that a written statement made by him before the trial, and read to him at the trial, is true, he makes the statement a part of his testi- mony, and the statement is a proper sub- ject of comment by the prosecuting of- ficer in his argument to the jury. Hyde V. United States. 35 App. D. C. 451, writ of certiorari granted. Hyde v. United States, 218 U. S. 681, 54 L. Ed. 1207. 31 S. Ct. 228. 492-1. Arise. — Cases arising under the constitution of laws of the United States, see ante, APPEAL AXD ERROR, p. 34; post, COURTS; REVENUE LAWS. 149 504-507 ARMY AND NAJ'Y. Vol. II. ARMY AND NAVY. VI. Officers, 150. F. Pay and Allowances, 150. 1. Pay, 150. c. Amount, 150. (1) Army Officers. 150. (g) Longevity Pav. 150. (2) Naval Officers, 15"0. (c) Increased Pay for Foreign Service, 150. (c>4) Additional Pay to Aid to Admiral, 150. (d) Additional Pay to Aid to Rear Admiral, 151. (h) Longevity Pay, 151. aa. In General, 151. dd. In What Grade Prior Services Are to Be Treated as Having Been Rendered, 151. (j) Assistant Surgeons, 152. f. Recovery Back of Amount Improperly Paid to Officer, 152. K. Dismissal, 152. 1. Dismissal of Officers, 152. c. Relief of Officer Wrongfully Dismissed, 152. CROSS REFERENCES. See the title Army and Navy, vol. 2, p. 494, and references there given. As to taxation of money received by a naval officer as salary and deposited in bank, see post. Taxation. VL Officers. F. Pay and Allowances — 1. Pay — c. Amount — (1) Army Officers — (g) Longevity Pay. — The calculation of the longevity pay of officers of the army under the act of May 13, 1908, 3S Stat. 127, c. 166, should be made on the sum of the base pay and not the base pay and previous increases thereof."*^^ (2) Naval Officers — (c) Increased Pay for Foreign Service. — An officer on duty beyond seas is not entitled to the extra ten per cent, allowed to officers of the navy detached for shore duty beyond seas, while in hospital and not rendering service. ^'^^ And when an officer is detached from one service and assigned to another, he is not considered as attached to the latter until he enters upon his duties.^^*" (c5^) Additional Pay to Aid to Admiral. — An officer of the navy serving as aid to the admiral is not entitled, under the assimilating provisions of the Navy Personnel Act, to the higher rank and pay of aid to the general of the army, when that office existed, irrespective of actual rank of such naval officer during 504-45a. Longevity pay.— Plummer v. United States and assigned to another be- United States, 224 U. S. 137, 56 L. Ed. yond seas his pay will be only shore pay, 697. 32 S. Ct. 467. See post, "In General." as if within the continental limits of the VI. F, 1, c, (2). (h). aa. United States, until he enters upon the _ 507-65a. Increased pay for foreign serv- new duties to which he is assigned. An of- ice.— Farenhalt v. United States, 42 Ct. CI. iicer detached from one service is not at- 114, judgment affirmed. United States v. tached to another until he enters upon Farenholt. 206 U. S. 226, 51 L. Ed. 1036. its duties. Farenholt v. United States, 42 27 S. Ct. 629. Ct. CI. 114. judgment affirmed in United 507-65b. Detached from one service and States i: Farenholt, 206 U. S. 226, 51 L. Ed. assigned to another.— Where a naval offi- 1036, 27 S. Ct. 629. cer is detached from one duty within the 150 Vol. II. ARMY AXD NAVY. 507-511 his period of service as such aid.'^^'^ The statute which created the office of general of the army ceased to be effective by reason of death of the general of the army, since which time there has been no such office to which pay of aids to the admiral of the navy can be assimilated.^^"* And the fact that the pay of all other naval officers is assimilated to the corresponding army officers, except the aids to the admirals, is a matter which must be corrected, if it is corrected, by congress and not by the court.^^^ (d) Additional Pay to Aid to Rear Admiral. — See note 66. (h) Longevity Pax — aa. In General. — The calculation of the longevity pay of officers of the navy under the act of :\Iay 13, 1908, 35 Stat. 127, c. 166, should be made on the sum of the base pay and not the base pay and pre- vious increases thereof.'*^^ It has been said in this connection that where con- gress passes a statute declaring that certain words shall be construed as having a definite meaning different from the construction already given by the court, that those words, when used in a later statute on the same subject, will be pre- sumed to have the meaning so given to it by congress.'''^'' dd. In What Grade Prior Services Are to Be Treated as Having Been Ren- dered. — Under the statute the calculation of an officer's longevity pay is to be made on the yearly pay affixed by law to the grades or rank to which the officer belongs and not upon his increased allowance as an aid to a rear admiral. ^^'^ 50r-65c. Additional pay — Aid to ad- miral.— \\'ood V. United States. 2.24 U. S. 1.32, .56 L. Ed. G96, 32 S. Ct. 461. 507-65d. Statute repealed by virtue of death of officer. — Wood v. United States. 224 U. S. 132, .56 L. Ed. 696. 32 S. Ct. 461. 507-65e. Correction of the discrepancy. —Wood z: United States, 224 U. S. 132, 56 L. Ed. 696, 32 S. Ct. 461. 507-66. Additional pay to aid to rear ad- miral.— Wood c'. United States, 224 U. S. 132, 56 L. Ed. 696, 32 S. Ct. 461. A naval officer assigned to duty on the personal staff of the commander in chief on the Pacific station as flag lieutenant, and bj" no other designation, is an aid and entitled to the additional pay of $200 given to the aid of a major eeneral in the army by Rqv. St., § 1261 [UT S. Comp. St. 1901, p. 8931. (1906) Miller v. United States, 41 Ct. CI. 400, judgment affirmed in United States V. Miller. 208 U. S. 32, 52 L. Ed. 376. 28 S. Ct. 199. A lieutenant in the navy, assigned to duty on the personal staff of a rear ad- miral as flag lieutenant, is entitled to the extra pay due an aid of the rear admiral, although he is not technically designated as an aid in the provisions of the navy regulations, 1896. §§ 343-345, authorizing such selection, and although such regula- tions expressly provide for the selection of juniors to the flag lieutenant to serve as aids. Judgment. Miller v. United States. 41 Ct. CI. 400, affirmed. United States v. Miller. 208 U. S. 32. 52 L. Ed. 376, 28 S.Ct. 199, modifying judgment Miller v. United States, 42 Ct. CI. 121. 509-76a. Longevity pay in general. — Plummer z: United States. 224 U. S. 137. 56 L. Ed. 697, 32 S. Ct. 467. 509-76b. Construction given by con- gress. — Plummer v. United States, 224 U. S. 137. 56 L. Ed. 697, 32 S. Ct. 467. "Current yearly pay." — The act of June 30, 1882, 22 Stat. 118, c. 254, expressly pro- vided that the current yearly pay on which longevity pay of officers of the army and navy is to be computed is base pay, and not base pay and increases. This does away with the construction given to the words "current yearly pay'' in United States z: Tyler, 105 U. S. 244, 26 L. Ed. 985. The phrase should be construed in the same manner when used in the subse- quent act of May 13, 1908. 35 Stat. 125, c. 166. and not as construed in United States V. Tyler, 45 Ct. CI. 614. reversed. Plum- mer V. United States. 224 U. S. 137. 56 L. Ed. 697, 32 S. Ct. 467. 511-85a. Computation of longevity pay. —United States :•. Miller, 208 U. S. 32. 52 L. Ed. 376. 28 S. Ct. 199, modifying Miller V. United States. 41 Ct. CI. 400. "In the case of United States v. Tyler. 105 U. S. 244, 26 L. Ed. 985, this court held that current yearly pay upon which lon- gevity increase was to be computed should include previous longevity increases, and in United States r. Mills, 197 U. S. 223, 49 L. Ed. 732, it was held that the ten per cent increase upon 'pay proper' of the compensation of officers serving beyond the continental limits should be computed upon the total amount which the officer was entitled to receive at the time of such service, both for longevity pay and the pay provided by § 1261, Rev. Stat." United States V. Miller. 208 U. S. 32, 37, 52 L. Ed, 376. 28 S. Ct. 199. 151 512-545 ARTIFICIAL COLORATION. Vol. 11- (j) Assistant Surgeons. — The pay of acting assistant surgeons was, by the Navy Personnel Act and subsequent acts, enhanced and assimilated to that of assistant surgeons in the army, and did not remain fixed as regulated by § 1556, Rev. Stat.9"^ f. Recovery Back of Amount Improperly Paid to Officer. — Sums improvi- dently paid to an army officer by the auditor for the war department can not be deducted from the extra pay sued for in the court of claims, where the United States filed no set-off or counterclaim. '^i^ K. Dismissal— 1. Dismissal of Officers — c. Relief of Officer IVrongfully Dismissed. — See note 81. ARRAIGN.— See note 1. ARREST. — See the title Arrest, vol. 2, p. 541, and references there given. In addition, see post. Imprisonment for Debt. As to congressional privileges from arrest, see post. Privilege. ARRESTMENT.— See post. Attachment and Garnishment. ARREST OF JUDGMENT.— See ante. Appeal and Error, p. 34; post, judgments and Decrees. ARTICLE.— See note 2. ARTIFICIAL COLORATION.— See note la. 512-90a. Assistant surgeons. — Plummer z,'. United States. 224 U. S. 137, 56 L. Ed. 697, 32 S. Ct. 467. The Navy Personnel Act of 1899, pro- vides for a standard by which to determine rank and pay of officers, and it will not be presumed that congress intended to create an inequality of compensation while leav- ing unmodified equality of rank and duty. The provisions for pay of assistant sur- geons and acting assistant surgeons in the navy, is determined under the statute ac- cording to this construction. Plummer i'. United States, 224 U. S. 137, 56 L. Ed. 697. 32 S. Ct. 467. Contemporaneous construction of stat- ute by department. — Plummer v. United States, 224 U. S. 137, 56 L. Ed. 697, 32 S. Ct. 467. 516-lla. Recovery back of money paid. —United States t'. Mitchell, 205 U. S. 161, 51 L. Ed. 752. 27 S. Ct. 463, reversing Mit- chell V. United States. 41 Ct. CI. 36. See, also, post, PAY^IEXT. 527-81. Relief of officer wrongfully dis- missed. — As to certiorari to correct deci- sions of military tribunals, see ante, AP- PEAL AND ERROR, p. 34. 540-1. Arraign. — Johnson v. United States, 225 U. S. 405, 410, 56 L. Ed. 1142, 32 S. Ct. 748. No implicit provision as to what con- stitutes arraignment. — "There is no ex- plicit provision in the laws of the United States describmg what shall constitute an arraignment. But so far as it is expressed it has a definite meaning. By § 1032 of the Revised Statutes it is provided that 'when any person indicted for any ofifensp against the United States, whether capital or otherwise, upon his arraignment stands mute, or refuses to plead or answer thereto, it shall be the duty of the court to enter the plea of not guilty on his be- half, in the same manner as if he had pleaded not guilty thereto. And when the party pleads not guilty, or such plea is entered as aforesaid, the cause shall be deemed at issue, and shall, without further form or ceremony, be tried by the jury.' It will be observed that the word arraign- ment is used as comprehensively descrip- tive, of what shall precede the plea. If it be so used in the law, it certainly can be used in the record as showing the per- formance of that which the law prescribes by it." Johnson z: United States, 225 U. S. 405, 410, 56 L. Ed. 1142, 32 S. Ct. 748. See post. CRniTXAL LAW. Record showing arraignment. — The rec- ord sufliciently shows that the indictment was read to the accused, where, after re- citing the presence of the attorney for the United States, the defendant in a proper person and by his attorney, it adds that "thereupon the defendant, being arraigned upon the indictment, pleads thereto not guilt}', at the trial puts himself upon the country and the attorney for the United States doth the like." Johnson v. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. 544-2. Articles of food.— See DRUGS. 545-la. Ingredients of oleomargarine. — "When any substance, although named as a possible ingredient of oleomargarine, sub- stantially serves only the function of color- ing the mass and so as to cause the prod- uct to 'look like butter of any shade of yellow,' it is an artificial coloration." Moxley r. Hertz, 216 U. S. 344, 353, 54 L. Ed. 510, 30 S. Ct. 305. Oleomargarine made to look like butter of a shade of yellow by the use of one- 152 Vol. II. ASSIGNMENTS. 563 ARTS. — See post. Patents ; Revenue Laws. _ ASSAULT AND BATTERY.— See the title Assault and Battery, vol. 2, p. 546, and references there given. ASSESSMENTS.— See post, Special, Assessments. ASSIGNMENTS. II. Modes, Requisites and Validity, 153. C. Parties to Assignment, 153. D. Subject Alatter of Assignment, 153. 2. Choses in Action, 153. c. Modern Doctrine, 153. (3) Particular Choses in Action, 153. (c) Claims against United States, 153. (e) Insurance Policies, 153. (i) Future Wages, 154. CROSS REFERENCES. See the title Assignments, vol. 2, p. 549, and references there given. II. Modes, Requisites and Validity. C. Parties to Assignment. — A state may, under proper conditions, pre- scribe that an assignment by a married man of wages to be earned by him in future shall be invalid unless consented to by his wife on the ground that she has an interest in the right use of his wages though she has no legal title in them.^"^ D. Subject Matter of Assignment — 2. Choses in Action — c. Modern Doctrine — (3) Particular Choses in Action — (c) Claims against United States. — As to assignment of claims against the United States, see the title United States. (e) Insurance Policies. — As to assignment of insurance policies, see the in- surance titles throughout this work. half of one per cent of palm oil, a vege- table oil recognized as a possible in- gredient by the second section of the act of August 2, 1886, is not "free from arti- ficial coloration" within the meaning of the proviso of § 8 of that act, as amended by the act of May 9, 1902, imposing a les- sor tax on oleomargarine when free from artificial coloration that causes it to look like butter of any shade of yellow, al- though the addition of such palm oil may give the product a slightlj^ better grain or texture, and a slightly better physiolog- ical effect upon those who eat it, where, but for its coloring power, it probably would not have been used. Moxley v. Hertz, 216 U. S. 344. 54 L. Ed. 510, 30 S. Ct. 305. See post, REVENUE LAWS. 563-57a. Parties to assignment. — Mu- tual Loan Co. r. Martell, 222 U. S. 225, 56 L. Ed. 175, 32 S. Ct. 74. The form and manner of execution and authentication of legal instruments in re- gard to property, its devolution and trans- fer, is the proper subject matter for state legislation. Mutual Loan Co. v. Martell, 222 U. S. 225, 56 L. Ed, 175, 32 S. Ct. 74; Arnett v. Reade, 220 U. S. 311, 55 L. Ed. 477, 31 S. Ct. 425. Legal restrictions may be placed by a state on the liberty of contract in many cases, and the supreme court will not in- terfere except in a clear case of abuse of power. Mutual Loan Co. z'. Martell, 222 U. S. 225. 56 L. Ed. 175. 32 S. Ct. 74; Chicago, etc., R. Co. z: McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. The wide range of discretion of state legislatures, in classifying objects of leg- islation, has often been discussed and it is held that even if the classification be not scientifically nor logically appropriate, if it is not palpably arbitrary and is uniform within the class, it does not deny equal protection. Mutual Loan Co. v. 'Martell, 222 U. S. 225, 56 L. Ed. 175. 32 S. Ct. 74. The supreme court has expressed "the propriety of deferring to tribunals on the spot" and does not oppose its notions of necessity to legislation adopted by such legislatures for the accomplishment of le- gitimate purposes. Mutual Loan Co. z: Martell. 222 U. S. 225, 56 L. Ed. 175. 32 8. Ct. 74; Laurel Hill Cemetery v. San Fran- cisco, 216 U. S. 358, 54 L. Ed. 515. 30 L. Ed. 301. 153 568-631 ASSISTANCE, WRIT OF. Vol. ir (i) Future IVages.— Assignments of future wages may, under the proper exercise of the police power, be rendered invalid unless made under conditions that will properly restrict extravagance and improvidence of wage earners.s2^ ASSIGNMENTS FOR BENEFIT OF CREDITORS. V. Preference of Creditors, 154. B. Effect of Statutes, 154. 2 As to Preferences by Separate Instruments Prior to Assignment, 154. CROSS REFERENCES. See the title Assign me;nts for Benefit of Creditors, vol. 2, p. 599, and references there given. V. Preference of Creditors. B. Effect of Statutes — 2. As to Preferences by Separate Instruments Prior to Assignment. — See note 53. ASSIGNS.— See note 1. ASSISTANCE, WRIT OF.— See the title Assistance, Writ of, vol. 2, and references there given. p. 632, 568-82a. Future wages. — Mutual Loan Co. V. Martell, 222 U. S. 225, 56 L. Ed. 175, 32 S. Ct. 74. See ante, "Parties to Assign- ment," II, C. 614-53. Validity of preferences by prior conveyances, etc., made in good faith, — Under the law of Porto Rico, contracts made by an insolvent debtor which were not fraudulent simulations because made upon adequate consideration, are not sus- ceptible of being rescinded merely because their execution operated a preference in favor of a creditor. Will v. Tornabells, 217 U. S. 47, 54 L. Ed. 660, 30 S. Ct. 424. 631-1. Copyright laws.— Section 4552, U. S. Rev. Stat., as amended by the Act of March 3, 1891, provides that "the author, inventor, designer, or proprietor" of cer- tain copj^rightable things therein men- tioned, and the "executors, administrators, or assigns of any such persons shall, upon complying with the provisions of this chapter have the sole liberty of printing, * * * publishing, * * * and vending the same." The word assigns in this section is not used as descriptive of the character of the estate which the "author, inventor, designer or proprietor," may acquire un- der the statute, for the assigns or any such person, as well as the persons them- selves, may, "upon complying with the provisions of this chapter," have the sole liberty of printing, publishing and vend- ing the same. This demonstrates the in- tention of congress to vest in assigns be- fore copyright, the same privilege of subsequently acquiring complete statutory copyright as the original author, inventor, designer, or proprietor has. Hence the artist may, before publication of his painting, assign, independently of the ownership of the painting itself, the right or privilege of taking out a copyright secured by the statute. American Tobacco Co. V. Werckmeister, 007 U. S. 284, 52 L. Ed. 208, 28 S. Ct. 72; Bong v. Campbell Art Co., 214 U. S. 236, 53 L. Ed. 979, 29 S. Ct. 628. See post, COPYRIGHT. Public lands. — An assign, within the meaning of the Act of June 16, 1880, pro- viding for repayment of purchase price of land by government on cancellation of entry, is one who becomes invested with the entryman's right in the land through some voluntary act of his. United States V. Colorado Anthracite Co., 225 U. S. 219, 223, 56 L. Ed. 1063. 32 S. Ct. 617. See post. PUBLIC LANDS. The court accepts the decision of the land department that the words assigns and assignors in the Act of March 3, 1891. amending the desert land Act of March 3. 1877, evidenced the intention of con- gress to remove the restriction of the earlier act upon the assignment of the desert land entry, and was not merely in recognition of the right that every entry- man has under the public land laws of the United States to make an assignment after he has acquired the equitable right to the land embraced within his entry. United States z: Hammers. 221 U. S. 220, 224. 55 L. Ed. 710, 31 S. Ct. 593. See post, PUBLIC LANDS. 154 Vol. II. AT. 658 ASSOCIATIONS.— See the title Associatioxs, vol. 2, p. 633, and references there given. In addition, as to a state's revocation of a social club charter for violation of the liquor laws being an impairment of the obligation of contracts, see post, Impairment of Obligation of Contracts. As to associations being classified with corporations in a tax measure such as the corporation tax, see post, Taxation. _ ASSUMPSIT.— See the title Assumpsit, vol. 2, p. 636, and references there given. ASSUMPTION OF RISKS.— See post, ^Iastfr and Servant. AT.— See note 2. 658-2. "At" or "near."— Where an act contemplates to railroad connections "at or near" a certain place, a distance of four miles was held to be reasonablj' within the terms of the act. Union Pac. R. Co. z\ Mason City, etc., R. Co.. 222 U. S. 237. 245. 56 L. Ed. 180. 32 S. Ct. 86. See post. INTERSTATE AND FOREIGN COM- MERCE. At the expiration of a specified period. — A charter granting a privilege for main- taining toll gates provided that the privi- leges granted in the charter should continue for fifty years, with the proviso that the county courts of certain desig- nated counties may, "at the expiration of twenty years, or at any time thereafter, purchase said road at the actual cost of construction and make it a free road." The words of purchase, "at the expiration of twenty j'ears, or at any time there- after." do not convey the meaning that the express limitation of fifty years be done away with in the same section that imposes it, but must be read subject to that more specific phrase, even if "an}^ time thereafter" practically is cut down to any time within the fifty years, so far as its value to the grantee is concerned. It was a reservation in favor of the county, not the grant of a new right to the grantee, and its operation is suf^cient if as ex- tensive as the need. Scott Count}', etc.. Road Co. V. Hines, 215 U. S. 336.' 54 L. Ed. 221, 30 S. Ct. 110. See post. COR- PORATIONS; TURNPIKES AND TOLLROADS. Devisees living at testator's death. — Where a testator in a will provided that on the death or marriage of the last of his daughters, "I direct that said estate shall be sold by my executors and the proceeds thereof be distributed by my said executors among my daughters liv- ing at my death and their children and descendants (per stirpes)," the words liv- ing at my death may not be disregarded. They are not to be eliminated in the in- terest of a construction which would leave the clause as though it read, "among my daughters who shall be living at the time of the death or marriage of my last un- married daughter and the children or de- scendants (per stirpes) of such of my daughters as may have previously died." At the time of the death of the testator his five daughters were living and none of them had children or descendants. By the definite language of the clause, these daughters were then ascertained and iden- tified as those entitled to the immediate enjoyment of the property on the termi- nation of the preceding estate. They, therefore, had a vested remainder in fee. Johnson z: W'ashington Loan. etc.. Co.. 224 U. S. 224. 56 L. Ed. 741. 32 S. Ct. 421. See post. REMAINDERS, REVER- SIONS AND EXECUTORY IN- TERESTS. 155 664-665 ATTACHMBXr AXD GARNISHMENT. Vol. II. ATTACHMENT AND GARNISHMENT. I. Definitions and General Consideration, 156. A. Definitions, 156. C. Nature, 156. 2. Mesne Process, 156. 3. Attachment and Execution Contrasted, 157. F^. Alias Attachments, 157. II. Jurisdiction, 157. C. Conflict between State and Federal Jurisdiction, 157. 5. As Affected by Rules Regulating Interstate Commerce, 157. IX. The Writ or Order, 157. H. Execution of \\'rit or Order. 157. 1. Service of Copy of Writ, 157. XIII. Notice, 157. A. Notice by Publication, 157. CROSS REFERENCES. See the title Attachment and Garnishment, vol. 2, p. 660, and references there given. In addition, see ante, Appeal and Error, p. 34; post, Estoppel; Seaman; Summons and Process; Waiver. As to following decisions of state courts in matters of attachment, see post, Courts. As to attachment of property engaged in interstate commerce, see post. Interstate and Foreign Commerce. As to attachment of seamen's wages, see post, Seamen. I. Definitions and General Consideration. A. Definitions. — "The word 'attachment,' as ordinarily understood in Amer- ican law, has reference to a writ the object of which is to hold property to abide the order of the court for the payment of a judgment in the event the debt shall be established. "^'^ The word "arrestment" is of Scottish origin and pertains to obligations due arrester's debtor.^'' C. Nature — 2. Mesne Process. — See notes 8, 9. 664-la. Definition of attachment.— Wil- person holds for behoof of his debtor. It der V. Inter-Island, etc., Nav. Co., 211 U. bears a general resemblance to foreign at- vS. 239, 245,^53 L. Ed. 164, 29 S. Ct. 58. tachment by the custom of London.'" 664-lb. "'Arrestment,' a word derived Wilder z'. Inter-Island, etc., Nav. Co., 211 from the English statute, is a word of U. S. 239, 246. 53 L. Ed. 164, 29 S. Ct. 58. Scotch origin and derived from the Scot- 665-8. Attachment is a mesne process.- ush law, and thus defined by Bouvier: ^^^^^ .^, inter-Island, etc., Nav. Co., 211 The order of a judge, by which he who is u. S. 239, 245. 53 L. Ed. 164, 29 S. Ct. 58. debtor in a movable obligation to the ar- nm: n. a ^. ' u ^ • i • -j . i Tester's debtor is prohibited to make pay- ^^^J^" Attachment is merely mcidental. ment or delivery till the debt due to the 7. . """ '<^ Ubarri. 214 U. S. 173, 53 L. arrester be paid or secured. Erskine, Inst. ' ^^ ^' ^^' ^^~- 3, 6. 1; 1, 2, 12. Where arrestment pro- "'Unless the suit can be maintained, the ceeds on a depending action it may be attachment must fall.' Ex parte R. Co., loosed by the common debtor's giving se- 1^3 U. S. 794, 796, 26 L. Ed. 461. 'Unless curity to the arrester for his debt, in the the suit can be maintained' means, of event it shall be found due.' And in the course, unless the court has jurisdiction Century Dictionary it is defined to be: 'A over the person of the defendant." Lab- process by which a creditor may attach orde v. Ubarri, 214 U. S. 173, 53 L. Ed. 955, money or movable property which a third 29 S. Ct. 552. 156 Vol. II. ATTEST ATI OX 665-688 3. Attachment axd Execution Contrasted. — See note 10. F|. Alias Attachments. — There is no provision for alias attachments in the Territory of Xew ^lexico.^"'' II. Jurisdiction. C. Conflict between State and Federal Jurisdiction — 5. As Affected EY Rules Regulating Interstate Commerce. — As to jurisdiction of state courts as affected by rules regulating interstate commerce, see post. Interstate AND Foreign Commerce. IX. The Writ or Order. H. Execution of Writ or Order — 1. Service of Copy of Writ. — Agents of Nonresident Railroad Company. — Service on the division superintendent of a nonresident railroad company is sufficient under the A'ermont statute.^''*^ XIII. Notice. A. Notice by Publication. — Attachment Prior to Publication. — The at- tachment must precede the publication.^"^ ATTEMPTS AND SOLICITATIONS TO COMMIT CRIME.— See the title Attempts and Solicitations to Commit Crime, vol. 2, p. 702. and references there given. ATTESTATION.— See ante. Acknowledgments, p. 7. 665-10. Attachment and execution con- trasted. — "An attachment has but few of the attributes of an execution; the execu- tion contemplated by the statute being the judicial process for obtaining the debt or damage recovered by judgment, and final in its character, while the attachment is but mesne process, liable at any time to be dissolved, and the judgment upon which may or may not aflfect the propertj' seized."' Wilder f. Inter-Island, etc.. Xav. Co., 211 U. S. 239, 245, 53 L. Ed. 164, 29 S. Ct. 58; quoting with approval ^Ir. Justice Alvey in Thomson z-. Baltimore and Susque- hanna Steam Co., 33 Md. 312, 318. See post. EXECUTIONS. Neither of the words "attachment" or "arrestment," considered literallj'. have reference to executions or proceedings in aid of execution to subject property to the paj^ment. of judgments, but refer, to the process of holding property to abide the judgment. Wilder f. Inter-Island, etc., Xav. Co., 211 U. S. 239, 53 L. Ed. 164. 29 S. Ct. 58. 666-17a. Alias unauthorized in the Ter- ritory of New Mexico. — The statutes of the Territory of Xew Mexico distinguished between original and ancillar}^ attach- ments. Sections 2686 and 2721 of the Compiled Laws of New Mexico. There is no provision for an alias attachment, and it has been decided by the supreme court of the Territory that an alias attach- ment is not authorized. The implication of the statute is against it; certainly against it except upon filing a new affidavit and bond and a nev.- publication of notice. Crary z: Dye, 208 U. S. 515. 516, 52 L. Ed. 595. 28 S. Ct. 3(10. 680-19a. Service on division superin- tendent of a railroad. — The division super- intendent of a nonresident railroad coin- pany is a "known agent"' of such company within the meaning of V. S. 1109, provid- ing for the service of attachment, although he may not be a person upon whom, pur- suant to section 3948, service of process generally upon such corporation may be made. Judgment, 149 F. 42. 79 C. C. A. 64. affirmed. Boston, etc.. Railroad z\ Gokev, 210 U. S. 155. 52 L. Ed. 1002, 28 S. Ct. 6.57. 688-80a. Attachment must precede pub- lication. — An alias attachment, even if au- thorized by the X'ew ]^Iexico statutes, can not support a judgment, where such at- tachment did not precede publication, as is required by the scheme provided by those statutes for the commencement of actions by attachment. "The attachment must precede the publication and consti- tutes the ground of publication. The sum- mons to the defendant is through his prop- erty and does not extend beyond it. The only consequence of his default is the sale of the property attached, not some other property or property attached subse- quently to publication. The publication can not be ordered until the execution oi' the writ of attachment and its return." Dve V. Crary (N. M. 1906). 85 P. 1038. 9 L." R. A. (N. S.) 1136, affirmed in Crary r. Dye, 208 U. S. 515, 52 L. Ed. 595. 28 S. Ct. 360. See post, SUMMONS AND PROC- ESS. 15"; 706-724 ATTORNEY AND CLIENT. Yo\. II. ATTORNEY AND CLIENT. II. Admission, 158. A. Eligibility. 158. B. Qualifications for Admission, 158. 1. In General, 158. XL Compensation for Services, 158. A. Right of Attorney to Compensation, 158. 2. Under Express Contract, 158. b. Contracts for Contingent Fees, 158. d. \''alidity as Dependent on Nature of Service Contemplated. 159. C. Allowance from Funds in Court, 159. D. Recovery, 159. E. Construction of Contract between Attorney of Record and Associate Counsel as to Fees, 159. XII. Lien of Attorney, 160. 2. On Judgments or Decrees, 160. CROSS REFERENCES. See the title Attorxky and Client, vol. 2, p. 703, and references there given. XL Admission. A. Eligibility. — Right to Practice Not Property. — The right to practice law was not embraced in the provision of the treaty of peace with Spain of December 10, 1898, art. 8, that the cession of sovereignty can not, in any re- spect, impair the property rights which, by law, belong to the peaceful pos- session of property of all kinds. ^* B. Qualifications for Admission — 1. In Gene^ral. — The military gov- ernor of the Philippine Islands was authorized to prescribe as a political qualification to practice law in those islands that the applicant should not be a citizen or subject of any foreign government. ^^^ XL Compensation for Services. A. Right of Attorney to Compensation — 2. Under Express Contract — b. Contracts for Contingent Fees. — See note 84. 706-8a. Right to practice not property. A Spanish lawyer who had previously — Bosque v. United States, 209 U. S. 91, 52 been denied permission to practice law by L. Ed. 698, 28 S. Ct. 501. See post, the supreme court of the Philippine Is- TREATIES. _ lands, upon the ground that he did not 70J-13a. Power of military governor of possess the political qualifications required Philippine Islands to prescribe political by law, was not entitled to such permis- qualification. — Bosque f. United States, sion by virtue of the provisions of Code 209 U. S. 91. 52 L. Ed. 698, 28 S. Ct. 501. Civ. Proc. Philippine Islands, § 13, for the A Spanish lawyer may be denied per- admission to practice of those "not spe- mission to_ practice by the supreme court cially declared ineligible," who have been of the Philippine Islands because he did duly licensed under the laws and orders not possess the political qualifications re- of the islands, under the sovereignty of quired by law, although this is not one of Spain or of the United States, and are "in the grounds recognized. by Code Civ. Proc. good and regular standing as members of Philippine Islands, § 13, for depriving a the bar of the Philippine Islands at the lawyer of the right to practice, since these time of the adoption of this Code." Bos- grounds relate solely to the removal or que v. United States, 209 U. S. 91, 52 L. suspension from the bar of attorneys al- Ed. 698, 28 S. Ct. 501. ready practicing. Bosque v. United States, 724-84. Substantial compliance with con- 209 U. S. 91, 52 L. Ed. 698, 28 S. Ct. 501. tract as entitling to fee.— The condition in 158 Vol. II. ATTORNEY AND CLIENT. 725-730 d. Validity as Dependent on Nature of Services Contemplated. — See notes 88, 90. C. Allowance from Funds in Court. — Where litigation is over a fund aris- ing from treaty stipulations, and supposed to be in the United States treasury in trust for the parties entitled thereto, such fund, being the stake in contro- versy, should bear the expense. ^"^ Stipulation in Suit by United States as to Allowance of Defendant's Counsel Fees. — A stipulation or agreement by the United States as to the allowance for counsel fees and other expenses out of funds in court into which the illicit gains of its agent have been paid is valid and binding upon the gov- ernment.^'^ D. Recovery.— Recovery by Administrator of Attorney for His Own and Intestate's Services. — The estate of an attorney who agreed to divide the net fees received in the prosecution of French spoliation claims, in consid- eration of the exclusive use of certain papers, may be required to account for fees received for services performed by his administrator, where the accounting has been treated by both parties as one proper to be made for the whole period. ^*^^ Laches in Suit for Accounting. — Failure to bring suit for an accounting under an agreement to divide the net attorneys' fees received in the prosecu- tion of French spoliation claims until two years after the enactment of the appropriation act of March 3. 1899 (30 Stat, at L. 1161. 1191, chap. 426, U. S. Comp. Stat. 1901, p. 751), from which payment might be made, is not such laches as defeats a recovery. ^•^'' E. Construction of Contract between Attorney of Record and Asso- ciate Counsel as to Fees. — A\'here an attorney of record and his associate counsel conducting litigation in the court of claims provide by contract that if a contract to pay an attorney in a will con- test a stipulated fee "in case the will is de- feated and our clients get their shares" is satisfied where the contest and the at- torney's services result in a compromise agreement by which the will, which, as propounded, disinherited such clients, was so qualified in probate that thej^ received a larger proportion of the estate than if the testator had died intestate. Decree, Coram v. Ingersoll. 148 Fed. 169, 78 C. C. A. 303, reversed. Ingersoll v. Coram, 211 U. S. 335, 53 L. Ed. 208, 29 S. Ct. 92. 725-88. Preparation and advocation of claims.— Earle v. Myers, 207 U. S. 244, 52 L. Ed. 191, 28 S. Ct. 86. 726-90. Lobbying contracts void. — Earle v. Mvers. 207 U. S. 244, 52 L. Ed. 191. 28 S. Ct. 86. See pest, ILLEGAL CONTRACTS. 730-8a. Litigation over funds in United States Treasury arising from treaty stipu- lations. — Eastern Cherokees v. United States. 225 U. S. 572, 50 L. Ed. 1212, 32 S. Ct. 707. quoting from opinion of Peele, C. J., in 45 Ct. CI. 104, 130, 131. and holding that under the decree of the court of claims, as afifirmed by the supreme court, the attorneys for the Cherokee Nation were entitled to be paid their fees on the amount of the recovery, including the items recovered in the name of the nation for the Eastern Cherokees. 730-8b. Stipulation by United States al- lowing defendant's counsel fees from fund. — The condition upon which the United States agreed to allowances for counsel fees and other expenses out of funds in court into which the illicit gains of its agent had been traced, viz., the turning over by the defendants to the receiver of all assets which had not been theretofore "bona fide disposed of by them, and there- fore beyond their control," was not so violated as to defeat the right to such al- lowances by the insistence by the defend- ants upon a credit for all disbursements made bj^ them in defense of the suit and in the care of the property in their hands, and for sums retained by them as compen- sation for their services. Decree, 172 F. 1, 96 C. C. A. 587, affirmed. United States V. Carter, 217 U. S. 286, 54 L. Ed. 769. 30 S. Ct. 515. 730-lOa. Recovery by administrator of attorney for services of himself and intes- tate.— Earle r. ]\[vers, 207 U. S. 244, 52 L. Ed. 191. 28 S. Ct. 86. 730-lOb. Suit for accounting held brought within reasonable time. — Earle i . Myers, 207 U. S. 244, 52 L. Ed. 191. 28 S. Ct. 86, holding that in the case at bar two years was not unreasonable. See post, LACHES. 159 730 AUDITA QUERELA. Vol. II. the fees in such litigation are not provided for by legislation but are required 1o be proved, each party must look out for himself, and the fees a,re allowed in full by the court of claims, such allowance dispenses with proof of services such as was contemplated by the contract and the associate counsel is entitled lo his agreed proportion of the fee under the contract. ^'^'^ Xn. Lien of Attorney. 2. On Judgments or De^crees. — See note 14. ATTORNEY GENERAL.— See the title Attorney General, vol. 2, p. 739, and references there given. AUCTIONS AND AUCTIONEERS.— See the title Auctions and Auction- eers, vol. 2, p. 743, and references there given. AUDITA QUERELA.— See the title Audita Querela, vol. 2, p. 749, and ref- erences there given. 730-lOc. Contracts for division between attorneys, and apportionment. — The fees of the attorney of record for the Eastern Cherokees were provided for by law, within the meaning of a contract between him and his associate counsel, by which he was to pay his associates a specified sum for their services out of his stipulated fees, upon collection thereof, provided that, "in the contingency of the fees not being provided for by legislation * * * but upon proof of services," each party should look out for himself, where his fees were allowed in full by the court of claims, un- der the authority of the subsequent act (Act March 3, 1903, c. 994, 32 Stat. 996), since such statute, though not directly fix- ing the fees, dispensed with the necessity of making proof, under Rev. St. U. S., §§ 2103, 2106, before the commissioner of In- dian affairs and the secretary of the inte- rior, which must have been the "proof of services" conteinplated by the parties. Owen V. Dudley, 217 U. S.'488, 54 L. Ed. 851, 30 S. Ct. 602, affirming judgment Dud- ley V. Owen (1908), 31 x\pp. D. C. 177. 730-14. Lien for contingent fee. — An agreement to pay a stipulated fee for legal services to be rendered in a will contest, contingent upon success, which agreement, by way of exception in favor of one of the signers, stipulated against any other lia- bility on his part than to pay such fee "out of the funds secured from the estate," gives the attorney, in case his efforts are successful, an equitable lien on such funds for his fee. Decree, Coram v. Ingersoll, 148 Fed. 169, 78 C. C. A. 303, reversed. In- gersoll V. Coram, 211 U. S. 335, 53 L. Ed. 208, 29 S. Ct. 92. IK a Vol. II. AUTREFOIS, ACQUIT AND CONVICT. 752-753 AUTREFOIS, ACQUIT AND CONVICT. I. Definitions and General Consideration, 161. B. Statement of Rule, 161. D. Doctrine Applicable to Philippine Islands, 161. F. Prosecutions and Proceedings as to Which Former Jeopardy a De- fense, 161. II. Essential Elements of Jeopardy, 162. A. Jurisdiction of Court, 162. B. Validity of Indictment, 162. III. Identity of Offenses, 162. A. Rule as to Identity, 162. C. Single Act Involving More than One Offense, 162. I. Where Same Evidence Will Not Support Both Indictments, 162. J. Same Act as a Distinct Offense against Different Sovereigns, 163. 1. United States and a State, 163. 2. United States and the Philippine Islands, 164. K. Severer Punishment for Second Offense, 164. M. Separate Parts of Transactions, 164. IV. What Constitutes a Jeopardy, 164. B. Instances Not Constituting Jeopardy, 164. 1. Discharge of Jury from Necessity, 164. 7. Prosecution \\'hich Can Not Legally Result in Conviction, 164. 8. Arraignment and Plea, 165. 9. Dismissal of Indictment, 165. 10. Conviction of Different Offenses or Higher Grade of Offense after Reversal, 165. V. Pleading, 165. • D. Effect of Plea as Preventing Prosecution to Final Judgment. 165. CROSS REFERENCES. See the title Autref'ois, Acquit and Convict, vol. 2, p. 751, and references there given. In addition, see post. Due Process of Law^. I. Definitions and General Consideration. B. Statement of Rule. — See note 4. D. Doctrine Applicable to Philippine Islands. — See note 9. F. Prosecutions and Proceedings as to Which Former Jeopardy a De- fense. — Persons sued for double damages imposed by a statute for making a 752-4. "Necessarily, there must be a ardy of punishment.' This statute was first jeopardy before there can be a second, before this court in the case of Kepner v. and only when a second is sought is the United States, 19,5 U. S. 100, 49 L. Ed. 114, constitutional immunity from double pun- 34 S. Ct. 797, and it was there held that the ishment threatened to be taken away." protection against double jeopardy therem Shelvin-Carpenter Co. v. Minnesota, 218 U. provided had. by means of this statute, S. 57, 54 L. Ed. 930, 30 S. Ct. 663. l^een carried to the Phdippine Islands m 753-9. Doctrine applicable to Philip- the sense and in the meaning which it had pine Islands.— "Section 5 of the act of obtained under the constitution and laws congress of July 1. 1902 (32 Stat, at L. 691, of the United States." Gavieres v. United chap. 1369), provides: 'No person, for the States, 220 U. S. 338, 55 L. Ed. 489, 31 S. same offense, shall be twice put in jeop- Ct. 421. 12 U S Enc— 11 1«1 754-758 AUTREFOIS, ACQUIT AND CONVICT. Vol. 11. casual and involuntary trespass by cutting or assisting to cut timber upon state lands can not complain that because of the further penal features of the law applicable to those offending against its provisions they are subject to be put twice in jeopardy for the same offense.^^a II. Essential Elements of Jeopardy. A. Jurisdiction of Court. — The jeopardy incident to a trial for an assault and battery before a justice did not extend to an offense beyond his jurisdic- tion. All that can be claimed for that jeopardy is that it protected the accused from being again prosecuted for the assault and battery, and, therefore, in a prosecution for the death of the injured person, required that the former be not treated as included, as a lesser offense, in the charge of homicide. ^-''^ B. Validity of Indictment. — It is an established rule that one is not put in jeopardy if the indictment under which he is tried is so radically defective that it would not support a judgment of conviction, and that a judgment thereon would be arrested on motion. i^'' III. Identity of Offenses. A. Rule as to Identity. — See note 17. C. Single Act Involving More than One Offense. — Conviction of Lesser Offense as Acquittal. — A single transaction may involve more than one of- fense and a conviction on a charge of the lesser does not necessarily bar a sub- sequent conviction for the greater.^o^ I. Where Same Evidence Will Not Support Both Indictments. — See note 30. 754-12a. Offense, etc., to which former jeopardy a defense. — Shelvin-Carpenter Co. V. Minnesota, 218 U. S. 57, 54 L- Ed. 930, 30 S. Ct. 663._ 754-13a. Jurisdiction of court. — Diaz v. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. This is the rule under Phil- ippine Comp. Stat., § 3284. 754-14a. Validity of indictment. — Shoe- ner v. Pennsylvania, 207 U. S. 188, 52 L. Ed. 163, 28 S. Ct. 110. "So, where the defense is that the ac- cused was put in jeopardy for the same offense by his trial under a former indict- ment, if it appears from the record of that trial that the accused had not then or pre- viously committed, and could not possibly have committed, any such crime as the one charged, and therefore that the court was without jurisdiction to have rendered any valid judgment against him, and such is the case now before us, then the accused was not, by such trial, put in jeopardy for the offense specified in the last or new in- dictment." Shoener v. Pennsylvania, 207 U. S. 188, 52 E. Ed. 163, 28 S. Ct. 110. 755-17. Rules as to identity. — Gavieres v. United States, 220 U. S. 338, 55 L. Ed. 489, 31 S. Ct. 421, quoting from Burton v. United States, 202 U. S. 344, 381, 50 L. Ed. 1057, 26 S. Ct. 688. "The provision against double jeopardy, in the Philippine Civil Government Act of July 1, 1902, 32 Stat. 691, c. 1369, § 5, is in terms restricted to instances where the second jeopardy is 'for the same offense' as was the first. Gavieres v. United States, 220 U. S. 338, 55 L. Ed. 489, 31 S. Ct. 421." Diaz V. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. 755-20a. Assault resulting in death of as- sailed. — The prosecution for homicide of a person previously convicted of an assault and battery from which the death after- wards ensued does not place the accused twice in jeopardy for the same offense, contrary to the act of July 1, 1902 (32 Stat, at L. 691, chap. 1369), § 5, enacting a bill of rights for the Philippine Islands; espe- cially where the jurisdiction of the justice of the peace before whom the assault and battery charged was tried did not extend to homicide cases. Diaz v. United States, 223 U. S. 442, 56 L. Ed. 500. 32 S. Ct. 250. The homicide charged against the ac- cused in the court of first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the ac- cused in jeopardy for that offense. Diaz V. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. 758-30. Where same evidence will not support both indictments. — " '.\ conviction 162 Vol. II. AUTREFOIS, ACQUIT AND CONVICT. 758 J. Same Act as a Distinct Offense against Different Sovereigns 1. United States and a State. — When Judgment of State Court Accepted by Federal Court. — The Federal court- accepts the judgment of a state court, based upon a verdict of acquittal of a crime against the state, whenever, in a case in the federal court, it hecomes material to inquire whether that particular crime against the state was committed by the defendants on trial in the federal court for an offense against the United States.^^a 'j^j^jg jg ^■\^^ ^^^^^^ -^^ prosecu- tions for conspiring criminally in violation of the federal statutes, where it is alleged that an offense against a state has been committed in carrying out such conspiracy.^'"' .32b or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant had already been tried for, the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or convic- tion under either statute does not exempt the defendant from prosecution and pun- ishment under the other.' * * * Carter V. IMcClaughry, 183 U. S. 365, 395, 46 L. Ed. 236, 22 S. Ct. 181." Gavieres v. United States, 22Q U. S. 338, 55 L. Ed. 489, 31 S. Ct. 421. In Carter v. McClaughry, 183 U. S. 365, 395, 46 L. Ed. 236, 22 S. Ct. 181, speaking of the identity of offenses charged, the court said: "The offenses charged under this article were not one and the saine of- fense. This is apparent if the test of the identity of offenses, that the same evidence is required to sustain them, be applied. The first charge alleged 'a conspiracy to defraud,' and the second charge alleged 'causing false and fraudulent claims to be made,' which were separate and distinct offenses, one requiring certain evidence which the other did not. The fact that both charges related to and grew out of one transaction made no difference." Gav- ieres V. United States, 220 U. S. 338, 55 L. Ed. 489. 31 S. Ct. 421. "In Burton v. United States. 202 U. S. 344, 381, 50 L. Ed. 1057, 26 S. Ct. 688; Bish- op's Criminal Law, vol. 1, § 1051, was quoted with approval to the effect, 'Jeop- ardy is not the same when the two, indict- ments are so diverse as to preclude the same evidence from sustaining both.' " Gavieres v. United States. 220 U. S. 338. 55 L. Ed. 489. 31 S. Ct. 421. Instances. — The offenses of behaving in an indecent manner in a public place, open to public view, punishable under munici- pal ordinances, and of insulting a public officer by deed or word in his presence, contrary to Pen. Code P. I., art. 257, are not identical, so that a conviction of the first will bar a prosecution for the other, although the acts and words of the accused set forth in both charges are the same. Gavieres v. United States, 220 U. S. 338, 55 L. Ed. 489, 31 S. Ct. 421. "It is apparent that evidence sufficient for conviction under the first charge would not have convicted under the second in- dictment. In the second case it was nec- essary to aver and prove the insult to a public official or agent of the authorities, in his presence or in a writing addressed to him. Without such charge and proof, there could have been no conviction in the second case. The requirement of insult to a public official was lacking in the first of- fense. Upon the charge, under the ordi- nance, it was necessary to show that the offense was committed in a public place^ open to public view; the insult to a public official need only be in his presence or ad- dressed to him in writing. Each offense required proof of a fact which the other did not. Consequently a conviction of one would not bar a prose^cution for the other." Gavieres v. United States, 220 U. S. 338, 55 L. Ed. 489. 31 S. Ct. 421. 758-32a. Where judgment of state court accepted by federal court. — United States v. Mason, 213 U. S. 115, 53 L. Ed. 725, 29 S. Ct. 480. 758-32b. In prosecution for conspiring criminally. — An acquittal of murder after a regular trial in a state court having full jurisdiction in the premises is a bar to so much of an indictment for conspiring criminally in violation of Rev. St., §§ 5508. 5509 (U. S. Comp. St. 1901, p. 3712), as seeks by charging defendants with the commission of such murder, to enforce the provision of § 5509, that if, in carry- ing out such conspiracy, an offense against the state has been committed, the punishment provided for by the state for such offense shall be imposed. United States V. Mason, 213 U. S. 115, 53 L. Ed. 725, 29 S. Ct. 480. "The reference in that section to an of- fense committed against the state was not for the purpose of restricting or suspend- ing the power of the state to determine whether its laws had been violated, and to punish the offense therefor. That refer- ence was for the purpose only of mcasur- 163 759-762 AUTREFOIS, ACQUIT AXD CONVICT. Vol. II. 2. UNiTiiD States and the Philippine Islands. — See note 36. K. Severer Punishment for Second Offense. — A former convict is not placed twice in jeopardy by bringing him after conviction before the court of another county in a separate proceeding instituted conformably to W. Va. Code, chap. 165, §§ 1-5, by information charging him with prior convictions which were not alleged in the indictment on which he was last tried and convicted, and, on the finding of the jury that he was the former convict, sentencing him to the additional punishment which chap. 152, §§ 23, 24, in such cases pre- scribes.''^^ M. Separate Parts of Transactions. — Treating as two different offenses assaults on tw^o different individuals does not place the accused twice in jeopardy for the same offense, within the meaning of Act July 1, 1902, c. 1369, § 5, 32 Stat. 692, even if these assaults occurred very near each other, in one contin- uing attempt to defy the law.-"*^^ IV. What Constitutes a Jeopardy. B. Instances Not Constituting Jeopardy — 1. Discharge of Jury erom Necessity. — See note 45. 7. Prosecution Which Can Not Legally Result in Conviction. — An ac- cused is not put in peril by a prosecution which could not legally result in a conviction for crime.^*^"^ ing the punishment for the conspiracy charged by the United States, upon it be- ing found, at the trial in the federal court, that such conspiracy in violation of the federal statute had been aggravated by the commission of an offense against the state; 'an aggravation merely of the substantive offense of consp'iracy,' not a distinct, sep- arate offense against the United States, to be punished by it without reference to the conspiracy charged in the indictment. Rakes v. United States, 212 U. S. 55, 57, 53 L. Ed. 401, 29 S. Ct. 244; Davis z'. United States, 46 C. C. A. 619, 107 Fed. 753." United States v. Mason, 213 U. S. 115, 53 L. Ed. 725, 29 S. Ct. 480. 759-36. United States and Philippine Is- lands. — In Grafton z'. United States. 206 U. S. 333, 51 L. Ed. 1084, 27 S. Ct. 7 49, "the supreme court of the Philippine Islands held that a soldier of the United States army might be prosecuted for homicide before a military court-martial and also before a civil court exercising authority in the islands. That judgment was re- versed and the conviction before the mili- tary court-martial held to bar a prosecu- tion for the same homicide in the civil courts of the Philippine Islands. It ap- peared that Grafton had been acquitted of the unlawful homicide of a Filipino by a duly convened court-martial having juris- diction of the offense. After acquittal he was charged in the court of first instance of the province of Iloilo with the crime of assassination in committing the same homicide. He was convicted, notwith- standing his plea of former jeopardy, of infraction of art. 404, Penal Code, of the crime of homicide in killing the Filipino. This court held that the court-martial had full jurisdiction to try the accused for the offense; that it derived its authority for the same governmental power as did the civil court in the Philippine Islands, and that if the conviction in the civil court were allowed to stand, the accused would be for the second time in jeopaijdy for the same homicide." Gavieres v. United States, 220 U. S. 338, 55 L- Ed. 489. 31 S. Ct. 421. 759-37a. Severer punishment for second offense. — Graham t'. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583. 760-38a. Separate parts of transactions, — Flemister z\ United States, 207 U. S. 372, 56 L. Ed. 252, 28 S. Ct. 129. 761-45. Failure of jurors to agree. — A plea of former jeopardy can not be based upon a discharge of the jury on a prior trial after they had been out at least 24 hours, and the trial court had found that there was a reasonable probability that the jury could not agree. Judgment, 85 P. 862, 32 Mont. 501, afifirmed. Keerl v. Mon- tana, 213 U. S. 135, 53 L. Ed. 734, 29 S. Ct. 469. 762-60a. Prosecution which can not le- gally result in conviction. — Shoener v. Pennsylvania, 207 U. S. 188, 52 L. Ed. 163, 28 S. Ct. no. A plea of autrefois acquit can not be sustained, where a judgment of conviction was reversed because the prosecution had been instituted before the offense charged against the defendant was or could have been committed under admitted facts of the case; as a bar to a new indictment against him for an offense subsequently committed, for he never was in peril. Shoener z: Pennsylvania, 207 U. S. 188, 52 L. Ed. 163, 28 S. Ct. 110. A second conviction of a public officer 164 Vol. II. BADGES OF FRAUD. 762 8. Arraign MKXT and Plea. — The mere arraignment of the accused and his pleading to the indictment does not put him in judicial jeopardy.-^*"' 9. Dismissal of Indictment. — The accused is not put in jeopardy, because the indictment was dismissed. It may have been that the dismissal was be- cause the state was without sufficient evidence at the time to hold the defend- ant; or there may have been other and adequate reasons for the course taken by the state's attorney."^^ 10. Conviction of Different Offenses or Higher Grade of Offense after Reversal. — Conviction of Lower as Acquittal of Higher Degree of Homicide. — A person convicted of a lesser grade of homicide than that charged in the indictment, who obtains a reversal of the judgment upon appeal, is not placed twice in jeopardy by a second trial for murder under the same indict- ment.-^^'^ Different Offense Carrying Increased Punishment, — An accused is not placed twice in jeopardv for the same offense within the meaning of Act July 1, 1902, c. 1369, § o, 32 Stat. 692, because the supreme court of the Philip- pine Islands, upon reversing judgment below in a criminal case, on an appeal taken by the accused, convicted him on the same facts, of a different offense, carrying an increased sentence. ■^''^'^ V. Pleading. D. Effect of Plea as Preventing Prosecution to Final Judgment. — A plea of former conviction under the constitutional provision that no person shall be twice put in jeopardy for the same oft"ense does not have the effect to pre- vent a prosecution to final judgment, although the former conviction or ac- quittal may be finally held to be a complete bar to any right of prosecution ; and this notwithstanding the person is in jeopardy a second time, if, after one con- viction or acquittal, the jury is impaneled to try him again. •'^•'^^ AVULSION. — See ante, Accession, Accretion and Reliction, p. 4. AWARD. — See post, Special Assessments. BADGES OF FRAUD. — See post, Fraudulent and \'oluntary Convey- ances. for failing on demand to pay over public ing v. Cady, 208 U. S. 386, 52 L. Ed. 540, moneys does not twice subject the defend- 28 S. Ct. 392. ant to jeopardy for the same offense, 762-50C. Dismissal of indictment.— where the first conviction was reversed Bassing 7: Cady, 208 U. S. 386. 52 L. Ed. en the ground that there had been no le- 540. 28 S. Ct. 392. gal demand for the payment of the money 762-50d. Conviction of different oflenses, without which the offense charged against etc.— Brantley v. Georgia, 217 U. S. 284. him could not have been committed. 54 L. Ed. 768, 30 S. Ct. 514, affirming 65 Such a conviction is not a deprivation of S. E. 42G. liberty without due process of law. in vio- 762-50e. Flemister z'. United States, 207 lation of United States constitution, four- U. S. 372, 50 L. Ed. 252 28 S. Ct. 129._ teenth amendment. Shoener v. Pennsyl- 762-55a. Effect of plea as preventing vania 207 U. S. 188, 52 L. Ed. 163, 28 S. prosecution to final judgment.— I leike v. Ct no United States, 217 U. S. 423. 54 L. Ed. 821, 762-50b. Arraignment and plea. — Bass- 30 S. Ct. 539. 165 767-780 BAIL AND RECOGNIZANCE. Vol. II. BAIL AND RECOGNIZANCE. II. Definitions and Distinction, 166. IV. In Criminal Prosecutions, 166. A. Admission to Bail, 166. 3. After Conviction, 166. a^. Constitutional Right to Bail, 166. b. Upon Appeal or Writ of Error from a Circuit or District Court of the United States, 166. E. Forfeiture of Bail Bond, 166. 1^. When Cause of Action Accrues, 166. 2y2. Venue, 167. 2>y2. Service of Process, 167. CROSS REFERENCES. See the title Baii, and Recognizance, vol. 2, p. 7'65, and references there given. II. Definitions and Distinction. Distinguished from Suretyship. — It would seem to have been held that there is little distinction between bail and suretyship."^ IV. In Criminal Prosecutions. A. Admission to Bail — 3. After Conviction — a>2. Constitutional Right to Bail. — A person convicted of a criminal offense has no constitutional right to bail.^'^a b. Upon Appeal or Writ of Error from a Circuit or District Court of the United States. — See ante. Appeal and Error, p. 34. E. Forfeiture of Bail Bond — V/z. When Cause of Action Accrues. — VkHiere a defendant fails to appear as required by the obligation of the bond, a right of action accrues against the surety.*^ '''^ 767-73. Distinguished from suretyship. — Leary v. United States, 224 U. S. 567, 56 L. Ed. 889, 32 S. Ct. 599. See post, PRINCIPAL AND SURETY. "The distinction between bail and suretyship is pretty nearly forgotten. The interest to produce the body of the prin- cipal in court is impersonal and wholly pecuniary. If, as in this case, the bond was for $40,000, that sum was the measure of the interest on anybody's part, and it did not matter to the government what person ultimately felt the loss so long as it had the obligation it was content to take. The law of New York recognizes the validity of contracts like the one al- leged, and, without considering whether the law of New York controls, we are con- tent to say merely that the New York decisions strike us as founded in good sense." Leary v. United States, 224 U. S. 567, 575, 56 L. Ed. 889, 32 S. Ct. 599. "It is said that the bail contemplated by the Rev. Stat., § 1014, is common-law bail and that nothing should be done to diminish the interest of the bail in pro- ducing the body of his principal. But bail no longer is the mundium, although a trace of the old relation remains in the right to arrest. Rev. Stat., § 1018." Leary V. United States, 224 U. S. 567, 575. 56 L. Ed. 889, 32 S. Ct. 599. 773-45a. Constitutional right to bail. — Harlan v. McGourin, 218 U. S. 442, 54 L- Ed. 1101, 31 S. Ct. 44, affirming 180 Fed. 119. There is no constitutional right to bail after a conviction in any case; it being properly granted or denied as best effects justice, determined in the light of the com- mon law, as affected by acts of congress. Ex parte Harlan, 180 F. 119, decrees af- firmed in Harlan v. McGourin, 218 U. S. 442. 54 L. Ed. 1101, 31 S. Ct. 44. 780-68a. When cause of action accrues. —United States v. Kirk. 204 U. S. 668. 51 L. Ed. 671, 27 S. Ct. 788. affirming 137 Fed. 753. Where a defendant indicted for con- spiracy to defraud the United States ex- ecuted a bond conditioned that he would appear on a specified day. and from day to day and from term to term should the case be continued, and answer to such 166 Vol. II. BANK GUARANTY FUND. 780 2y2. Venue.— x^n action to recover the penalty of a bail bond should be brought in the district court of the district in which the surety resides.'^'^^ And a district court of another district than that in which the surety resides and in which he has never been personally has no jurisdiction to recover the penalty ."^o" 3>4. Service oe Process. — In action against a surety to recover the penalty of a bail bond, the fact that the officer endeavoring to serve process made two returns "defendant not found," is not sufficient service to authorize judgment against a defendant not residing in the district where the action is brought.' ^^ BAILMENTS.— See the title Bailments, vol. 2, p. 782, and references there given. BANK BILL— BANK NOTES.— See post, Banks and Banking. BANKER'S LIEN.— See post. Banks and Banking. BANK EXAMINER.— See post, Banks and Banking. BANK GUARANTY FUND.— See post. Constitutional Law. things as should be objected against him, etc., and on his failure to appear as re- quired the bond was duly estreated, the Cjnited States thereby acquired a perfect cause of action against the surety, en- forceable in a proper forum after due no- tice. Decree, Kirk v. United States. 137 F. 753, 70 C. C. A. 187, affirmed. United States 7'. Kirk, 204 U. S. 668, 51 L. Ed. 671, 27 S. Ct. 788. 780-70a. Venue.— United States f. Kirk, 204 U. S. 668. 51 L. Ed. 671, 27 S. Ct. 788. See post, VENUE. 780-70b. District other than where surety resides. — United States z\ Kirk, 204 U. S. 668, 51 L. Ed. 671, 27 S. Ct. 788, af- firming 137 Fed. 753. Where a surety on a bail bond resided in another district from that in which the bond was filed, and remained in the dis- trict of his domicile, his personal liability on the bond could not be established in any other district than that where he re- sided. Decree, Kirk v. United States (1905). 137 F. 753. 70 C. C. A. 187, af- firmed. United States v. Kirk, 204 U. S. 668, 51 L. Ed. 671, 27 S. Ct. 788. 780-71a. Service of process. — United States V. Kirk, 204 U. S. 668, 51 L. Ed. 671, 27 S. Ct. 788. See post, SUMMONS AND PROCESS. Where the surety on a bail bond filed in a federal court sitting in Georgia con- tinued openly to reside in New York dur- ing all the time proceedings were pending in Georgia on the bond, two returns nihil in Georgia to a writ of certiorari after for- feiture of the bond in the district in which the bond was filed were not equivalent to personal service, so as to authorize a personal judgment against such a surety. Decree, Kirk r. United States, 137 F. 753. 70 C. C. .A.. 187, affirmed. United States 7-. Kirk, 204 U. S. 668, 51 L. Ed. 671, 27 S. Ct. 788. 167 BANKRUPTCY. Vol. 11. BANKRUPTCY. II. Bankrupt Laws, 170. B. Purpose, 170. III. Who May Become Bankrupts, 170. C. Under the Present Bankrupt Act, 170. 2. Involuntary Bankrupt, 170. V. Jurisdiction, 170. A. Creation and Original Jurisdiction of Courts of Bankruptcy, 170. 1. Creation, 170. 2. Jurisdiction and Powers, 171. a. In General, 171. b. Enumeration of Specific Powers, 171. (7) Collection and Distribution of Bankrupt Estates, and Determination of Controversies Relating Thereto, 171. B. Jurisdiction of United States and State Courts in Controversies Other than Bankruptcy Proceedings, 171. 1. Proceedings between Trustees and Adverse Claimants of Bank- rupts' Property, 171. b. Under Present Bankrupt Act, 171. C. Appellate Jurisdiction, 172. 1. Jurisdiction of Controversies Arising in Bankruptcv Proceedings, 172. ' , 2. Supervisory Jurisdiction in Matters of Law over Superior Courts of Bankruptcy, a. Right to Exercise, 172. c. Exercise of Power Not Reviewable on Appeal to Supreme Court, 173. 3. Appeals in Bankruptcy Proceedings, 173. a. From Courts of Bankruptcy to Courts of Appeal, 173. (1) When Proper, and to What Courts Taken, 173. (2) When to Be Taken, 173. b. From Final Decisions of Court of Appeals to United States Supreme Court, 174. (1) When Proper, 174. (2) Record on Appeal. 175. VII. Procedure to Obtain Adjudication of Bankruptcy, 175. B. Involuntary Proceedings, 175. 3. By Whom Instituted, 175. 5. Petition, 175. a. Definition, 175. c. Amendment, 175. 8. Appearance and Pleading by Bankrupt or Creditors, 176. a. Right to Appear and Plead to Petition, 176. 9. Hearing and Adjudication, 176. a. Duty of Judge to Determine Issues Where Allegations of Petition Controverted, 176. IX. Protection of Property and Riis^hts of Creditors Pending Adjudica- tion and Appointment of Trustee, 176. B. Injunctions to Restrain Interference, 17'6. 168 Vol. II. BANKRUPTCY. C. Receivers, 176. 2. Powers and Duties, 176. XI. Duties, Exemptions and Rights of Bankrupt, 177. A. Duties of Bankrupt, 177. XII. Discharge of Bankrupt, 177. A. Definition, 177. E. Application and Hearing Thereon, 177. 3. Granting or Refusal of Discharge, 177. F. Efifect of Discharge, 177. 1. Upon Debts of Bankrupt, 177. a. In General, 177. XV. Proof and Allowance of Claims, 177. A. Proof, 177. 2. What Debts ]\Iay Be Proved. 177. b. Unliquidated and Contingent Claims against Bankrupt, 177. B. Allowance, 177. 3. Allowance of Claims of Secured Creditors and Those Having Priority, 177. 4. Allowance of Claims of Creditors \Mio Have Received Prefer- ence, 178. XVI. Trustees or Assignees, 178. E. Rights, Powers, Duties, and Liabilities, 178. 1. Rights and Powers, 178. b. Title and Rights as to Property of Bankrupt, 178. (1) General Rules, 178. (a) \"ested with Title to All Unexempt Property of Bankrupt, 178. aa. Rule Stated, \7^. bb. Power of Court to Compel Surrender to Trustee, 178. c. Takes Title Subject to Equities and Encumbrances, 178. (2) Enumeration of Specific Property and Rights Passing to Trustees, 179. XVII. Administration and Distribution of Estate, 179. D. Payment of Taxes, Priority of Debts, and Order of Payment, 179. 2. Order of Priority and Payment of Debts, 179. d. \\'ages of Workmen, Clerks or Servants, 179. f. Prioritv of Debts Due United States and States under Former Statutes, 180. (1) Debts Due United States, 180. XIX. Provisions of Bankrupt Act as to Liens, Transfers and Prefer- ences, 180. A. Liens, 180. 1. What Claims Are Not Liens against Bankrupt Estate. 180. 3. Dissolution of Liens Obtained Through Legal Proceedings withni Four Months before Filing the Petition, 180. 4. Liens Which Are Not Affected by Bankrupt Act, 180. B. Conveyances, Assignments or Encumbrances to Delay or Defraud Creditors, 180. 1. Invalidity of Such Acts, 180. C. Preferences, 181. 1. Invalidity of Preferences, 181. 169 804-814 BANKRUPTCY. Vol. II. b. What Constitutes Preference within Meaning of Bankrupt Act, 181. d. Effect of Statutory Provisions upon Insolvents' Right to Deal with His Property in Good Faith, 182. D. V^alidity of Payment or Transfer to Attorneys, etc., for Future Serv- ices, 182. XX. Application of Bankrupt Acts to Partners and Partnership Estates, 182. C. Appointment, Powers and Duties of Trustees, 182. 2. Possession and Recovery of Assets, 182. D. Administration and Distribution of Assets, 182. 3. Application of Proceeds of Partnership and Individual Estates, 182. XXI. Nature, Operation, and Effect of Bankruptcy Proceedings, 183. B. Operation and Effect, 183. 2. Eff'ect upon Right to Institute Suits, 183. 3. Effect on Pending Suits, 183. a. Effect of Proceedings as Stay of Suits in Other Courts, 183. (1) Provisions of Former and Present Bankrupt Acts, 183. C. Conclusiveness and Effect of Adjudication, 183. CROSS REFERENCES. See the title Bankruptcy, vol. 2, p. 792, and references there given. II. Bankrupt Laws. B. Purpose. — See note 18. Ill, Who May Become Bankrupts. C. Under the Present Bankrupt Act — 2. Ixvoi^untary Bankrupt, — See note 44. V. Jurisdiction. A, Creation and Original Jurisdiction of Courts of Bankruptcy — 1. Creation. — See note 64. 804-18. A distinct purpose of the A corporation whose principal business Bankruptcy Act is to subject the admin- is making and constructing arches, walls, istration of the estates of bankrupts to and abutments, bridges, buildings, etc., the control of tribunals clothed with au- out of concrete, in carrying on which busi- thority and charged with the duty of pro- ness it buys and combines together raw ceeding to final settlement and distribu- materials, and supplies the necessary tion in a summary way, as are the courts labor, machinery, and appliances, is a of bankruptcy. United States Fidelity "corporation engaged principally in man- etc, Co. V. Bray, 225 U. S. 205. 56 L. Ed, ufacturing." within the meaning of Bankr. 1055. 32 S. Ct. 620. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 809-44. A corporation engaged in (U. S. Comp. St. 1901, p. 3423), as amended conducting hotels at various points is not by Act Feb. 5, 1903, c. 487, § 3, 32 Stat, engaged principally in trading or mer- 797 (U. S. Comp. St. Supp. 1909, p. 1309), cantile pursuits, so as to be liable to an defining the persons or corporations which involuntary adjudication in bankruptcy may be adjudged involuntary bankrupts, under Bankr. Act July 1, 1898, c. 541, § 4b, although such company makes its product. 30 Stat. 547 (U. S. Comp. St. 1901, p. and gives it form and shape, at the place 3423), as amended by Act Feb. 5. 1903. c. where it is to remain. Judgment, Hall & 487, § 3, 32 Stat. 797 (U. S. Comp. St. Kaul Co. v. Friday (1907) 158 F. 593, 87 Supp. 1909, p. 1309), although it also C. C. A. 23, reversed. Friday v. Hall. etc.. maintains two country stores, largely as Co., 216 U. S. 449, 54 L. Ed. 562, 30 S. Ct. an incident to the location of its hotels 261. in a thinly settled mountainous region. 814-64. Enumeration of bankruptcy Toxaway Hotel Co. v. Smathers & Co., courts under act of 1898, §§ 1 and 2.— 216 U. S. 439, 54 L. Ed. 558, 30 S. Ct. 263; Babbitt v. Butcher, 216 U. S. 102, 54 L. Nollman & Co. v. Wentworth Lunch Co., Ed. 402, 30 S. Ct. 372. 217 U. S. 591, 54 L. Ed. 895. 30 S. Ct. 694. 170 Vol. II. BAXKRUPTCY. 815-827 2. JuRiSDicTiox AND PowERS — a. In General. — See note 67. Ancillary Jurisdiction.— In a case in which the original court of bank- ruptcy can act summarily, another court of bankruptcy, sitting in another dis- trict, can do so in aid of the court of original jurisdiction.'^"^ b. Enumeration of Specific Pozvers—(7) Collection and Distribution of Bankrjipt Estates, and Determination of Controversies Relating Thereto. See r.ote 76. B. Jurisdiction of United States and State Courts in Controversies Other than Bankruptcy Proceedings—!. Proceedings between Trustees AND Adverse Claimants of Bankrupts' Property — b. Under Present Bank- rupt Act. — See note 4. 815-67. Jurisdiction and Powers. — "Section 2 of the Bankruptcy Act invests the courts of bankruptcy Svith such juris- diction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings." '" United States Fidelity, etc., Co. v. Bray, 225 U. S. 205. 216, 56 L. Ed. 1055, 32 S. Ct. 620. "The jurisdiction of the bankruptcy courts in all 'proceedings in bank- ruptcy' is intended to be exclusive of all other courts, and such proceedings in- clude, among others, all matters of ad- ministration, such as the allowance, re- jection and reconsideration of claims, the reduction of the estates to money and its . Suddath, 215 U. S. 110, 54 L. Ed. 115, 30 S. Ct. 58, following Reynes v. Dumont, 130 U. S. 354, 32 L. Ed. 934, 9 S. Ct. 486. 39-15a. Securities. — Hanover Nat. Bank V. Suddath, 215 U. S. 110, 54 L. Ed. 115, 30 S. Ct. 58. In Reynes v. Dumont, 130 U. S. 354. 32 L. Ed. 934, 9 S. Ct. 486, "securities had been sent to bankers for a specific pur- pose. That purpose having been accom- plished, the securities were permitted to remain in the custody of the bankers as depositaries, because they were in a good market and a place convenient for pro- curing loans, and because the expressage upon their return would have been great. The right to a general bankers' lien upon the securities was denied." Hanover Nat. Bank r. Suddath. 215 U. S. 110, 54 L. Ed. 115. 30 S. Ct. 58. "In Biebinger v. Continental Bank, 99 U. S. 143, 23 L. Ed. 271. it appeared a deed had been denosited with the bank as col- lateral security for the customer's current indebtedness and discounts. After pay- ment of this indebtf'dness and a temporary suspension of dealings, the customer in- curred new indebtedness to the bank; but, as it did not appear that the money was loaned or debt created on tl^e faith of the deposit of the deed, the bank's claim of a lien thereon was denied." Hanover Nat. Bank z'. Suddath, 215 U. S. 110, 54 L. Ed. 115, 30 S. Ct. 58. 39-15b. Notes discount of which de- clined. — Tudsment (1907). 153 F. 1021. 83 C. C. A. 676, affirmed in Hanover Nat. Bank v. Suddath, 215 U. S. 110, 54 L. Ed. 115, 30 S. Ct. 58. The mere possession of the notes by the bank after its refusal to discount them did not justify it in relying upon the notes as collateral security for the indebtedness which arose from the voluntary payment of the draft drawn bj' the correspondent bank upon it, when there were no funds in its possession to meet the draft. Han- over Nat. Bank v. Suddath, 215 U. S. 122, 54 L. Ed. 120, 30 S. Ct. 63. In Bank v. White, 154 U. S. 660, 26 L. Ed. 307, 14 S. Ct. 1191, which was an ac- tion to recover upon a promissory note, in order to escape the contention that it was not an innocent holder, the bank con- tended that, before the note was sent to it for discount, the sender was under a promise to furnish security for advances to be made, and therefore the rights of the bank as an innocent holder were to be determined by the state of its knowl- edge at the time the note was received, although the discount was declined, and not by the state of knowledge existing when, at a subsequent date, the note was actually discounted. In disposing of a contention that the trial court has com- mitted error in not giving an instruction which the bank asked in accord with its contention as just stated. It was in ef- fect held that the bank had no lien on the note, there having been no pledge of the note if the discount was declined. Han- over Nat. Bank zk Suddath. 215 U. S. 110. 54 L. Ed. 115, 30 S. Ct. 58. 39-15C. Effect of agreement in general use. — Hanover Nat. Bank v. Suddath, 215 U. S. 110, 54 L. Ed. 115. 30 S. Ct. 58. It was so held as to notes sent to a bank by its correspondent for discount and credit, which such bank refuses to- rediscount. Hanover Nat. Bank r. Sud- dtith. 215 U. S. 110, 54 L. Ed. 115. 30 S.. Ct. 58. 190 Vol. III. BANKS AND BANKING. 39-47 previously drawn when presented, and to hold as collateral the notes which had been sent for discount. ^-^"^ Pledge to Secure Specified Loan or Debt.— A special deposit may be specifically pledged to the bank to secure a specified loan or debt.^^'^ f. Unclaimed Deposits. — Laws Mass. 1907, c. 340, providing that deposits which have remained inactive and unclaimed for thirty years, where the claim- ant is unknown or the depositor can not be found, shall be paid to the treasurer and receiver general, to be held by Rim as trustee for the true owner or his legal representative, is not unconstitutional,-^^"" being a valid exercise of the police power of the state. ^^^ It is not a deprivation of property without due proc- 39-15d. Inaction not equivalent to re- quest to pay. — Judgment (1907), 153 F. 1021. 82 C. C. A. 6T6. affirmed. Hanovei Nat. Bank v. Suddath, 215 U. S. 110, 54 L. Ed. 115, 30 S. Ct. 58. 39-15e. Pledge to secure specified loan or debt. — A bank wliich. in order to de- ceive a bank examiner, discounts the note of a president of another national bank and places the proceeds to the credit of his bank in a special account, not subject to check, does not. by charging the note against the account, in accordance with the agreement, without knowledge of the other bank's failing condition, become li- able to the receiver of such other bank as for a conversion, on the theory that, be- cause such president drew his check on the other bank for the full amount, and deposited it to his eredit in bis own bank, and. by means of a corresponding check against his personal account, removed from the assets of his bank certain notes objected to by the bank examiner, the transaction must be regarded as really a loan to the president, secured by an at- tempted pledge of the funds of his bank. Judgment, Cherry f. City Nat. Bank of Kansas City, Mo. (1906)", 144 F. 587. 75 C. C. A. 343. affirmed. Rankin v. City Nat. Bank, 208 U. S. 541. 52 L. Ed. 610. 28 S. Ct. 346. 47-35a. Unclaimed deposits. — Provident Institution v. Malone. 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661, affirming judg- ment in Malone v. Provident Institution for Savings in Boston. 86 N. E. 912. 201 Mass. 23. 47-35b. ''Savings banks are maintained in the expectation that the deposits may, for years, remain uncalled for, to the mu- tual advantage of bank and customer. So that, if the statute had provided that the money should be paid over to the receiver general if the owner, after a short absence, could not be found, or if the account re- mained inactive for a brief period, a very different question would be presented from that arising under an act which deals with absence and nonaction so long continued as to suggest that the law of escheats or of lost property might be enforced. This, however, is not a statute of escheats, since it does not proceed on the theory that the depositor is dead, leaving no heirs. It does not purport to dispose of lost property, but deals with a deposit the owner of which, though known, can not be found. The act is like those which provide for the appointment of custo- dians for the real and personal property of an absentee." Provident Institution v. Malone, 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. "In this case, though the money is on deposit with a bank, which has faithfully kept its contract, yet the statute proceeds on the general principle that corporations may become involved, or may be dis- solved; or that, after long lapses of time, changes may occur which would require someone to look after the rights of the depositor. The statute deals with ac- counts of an absent owner, who has so long failed to exercise any act of owner- ship as to raise the presumption that he has abandoned his property. And if abandoned, it should be preserved until he or his representative appear to claim it; or, failing that, until it should be escheated to the state. The right and power so to legislate is undoubted. Cun- nius c'. Reading School Dist.. 198 U. S. 458, 49 L. Ed. 1125, 25 S. Ct. 721." Provi- dent Institution v. Malone, 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. '"The statute here is reasonable in its terms and is so framed as to work in- justice to no one. It only applies to cases where no deposit has been made, no in- terest added on pass book, no check drawn against the account, for thirty years, and where no claimant is known, and the depositor can not be found. Be- fore the money can be turned over to the receiver general, proceedings must be in- stituted in the probate court, and, under the decision of the supreme court of the state, personal notice must be given to the bank, and citation and notice, usual in the probate court, published, so as to give the depositor, if living, and his heirs, if dead, opportunitj^ to appear and be heard. Even then the property is not escheated, but deposited with the treasurer, to hold as trustee for the owner or his legal repre- sentatives, to whom it is paj'able when the3" establish their right." Provident In- 191 47-48 BANKS AND BANKING. Vol. III. ess of law;^^'^ it is not a denial of the equal protection of the laws by reason of an arbitrary discrimination ;^^'^ nor is it an impairment of the obligation of the contract between a savings bank and its depositor.-"'^^ Persons Who May Assail Validity or Attack Judgment. — A savings bank, so far, at least, as its rights are involved in those of its depositors, may raise the objection that property is taken without due process of law by Mass. Laws 1907, chap. 340, in question ;^^' but as the statute only applies where the owner can not be found, in the nature of the case, therefore, no depositor could except to the judgment of the probate court which directed the money to be turned over to the treasurer.*^ ^= 3. With Respp;ct to Collections — a. Authority. — A national bank, un- der U. S. Rev. Stat., § 5136, may do -those acts and occupy those relations which are usual or necessary in making collections of commercial papers or other evidences of debt.^^'^ stitution V. Malone," 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. "On dissolution, the share of a de- positor who could not be found would be paid over to his legal representative, who might be an administrator in case his death was established, or a guardian, in case of mental incapacity, or a trustee in bankruptcy in case of insolvency, or a representative appointed under statutes applicable to abandoned property. But it is not necessary to wait for the dissolu- tion of the bank. If the facts warrant it, a legal representative can be appointed at any time, with all the rights incident to such appointment, including that of with- drawing the funds and holding them for the true owner when he shall establish his claim." Provident Institution z'. Ma- lone. 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. "It is true that the rate of interest paid by the state is not the same as that paid by the bank, as to sums under $1,600 it is less, and as to those over $1,600 it is more. But this is a matter with which the plain- tiff in error is not concerned, and can arise only between the state and the claimant when he asserts a right to prop- erty long neglected and apparently aban- doned." Provident Institution t'. Malone, 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. 47-35C. Due process of law. — The prop- erty of a savings bank is not taken with- out due process of law by Mass. Laws 1907, chap. 340, providing that deposits which have remained inactive and un- claimed for thirty years, where the claim- ant is unknown or the depositor can not be found, shall be paid to the treasurer and receiver general, to be held by him as trustee for the true owner or his legal representatives. Provident Institution r-. Malone, 221 U. S. 660, 55 L. Ed. 899 31 S. Ct. 661. 47-35d. Discrimination. — Savings bank are not unconstitutionally discriminated against by making applicable to them alone the provisions of Mass. Laws 1907. chap. 340, that deposits which have re- mained inactive and unclaimed for thirty years, where the claimant is unknown or the depositor can not be found, shall be paid to the treasurer and receiver general, to be held by him as trustee for the true owner or his legal representatives. Provi- dent Institution v. Malone, 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. "There is nothing unequal or discrimi- natory in making the act applicable only to abandoned deposits in a savings bank. The classification is reasonable. Deposits in savings banks are made in expectation that they may remain much longer un- called for than is usual in deposits in other banks. This fact makes savings de- posits all the more likely to be forgotten and abandoned. And as the depositors are often wage earners, moving from place to place, there is special reason for in- tervening to protect their interest in this class of property in banks as to which the state's supervisory power is constantly exercised." Provident Institution v. Ma- lone, 221 U. S. 660. 55 L. Ed. 899. 31 S. Ct. 661. 47-35e. Impairment of obligation of con- tract. — The obligation of the contract be- tween a savings bank and its depositor is not unconstitutionally impaired by Mass. Laws, 1907, chap. 340, providing that de- posits which have remained inactive and unclaimed for thirty years, where the claimant is unknown or the depositor can not be found, shall be paid to the treasurer and receiver general, to be held by him as trustee for the true owner or his legal representatives. Provident Institution t'. Malone. 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. 47-35f. Persons who may question valid- ity of statute. — Provident Institution t-. Malone. 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. 47-35g. When statute applies. — Provi- dent Institution r. Malone, 221 U. S. 660. 55 L. Ed. 899. 31 S. Ct. 661. 48-38a. National bank. — Miller r. King, 223 U. S. 505. 56 L. Ed. 528, 32 S. Ct. 243. Assignment of judgment for collection. — A national i^ank is acting within the 19^ Vol. III. BANKS AND BANKING. 50-64 b. Title to Paper Deposited and Lien Thereon. — It is both usual and proper for the legal title to negotiable instruments to be vested in a bank by mere indorsement for purposes of collection, holding the proceeds as the indorser directs. There is no difference in law if the title is conveyed by a lengthier and more formal instrument. In both cases the bank takes the legal title for the purpose of demand and coUection.'*^^ Right to Sue. — In a proper case, there is no reason why a bank might not go further and institute suit in its own name on commercial paper and other evidences of debt intrusted to it for collection for the recovery of what may be due. If the transfer was made, or the suit was being maintained, for purposes not authorized by the charter of the bank, and if the defendant was in a position where his rights were prejudiced thereby, it would be incumbent on him to raise that defense at the outset of the litigation, or as soon as he learned that fact.-'s^ 4. With Respect to Loans and Discounts. — See ante, "Special Deposits and Depositaries," III, B, 2, c. d. Illegality of Loans as Affecting Validity. — Although the statute by clear implication forbids a national bank from making a loan upon real estate, the security is not void, and it can not be successfully assailed by the debtor or by subsequent mortgagees because the bank was without authority to take it ; and the disregard of the provisions of the act of congress upon that subject only lays the bank open to proceedings by the government for exercising powers not conferred by law.^^^ f. Rate of Interest or Discount. — National banks are prohibited from making usurious contracts. If they disregard its provisions, the law not only furnishes a defense, but gives a right of action. As a defense, there is no statute of lim- itations. \Mienever sued, the debtor may plead the usurious contract, and be relieved from paying any interest whatever. But if he elects to avail himself of the cause of action, he must sue "within two years from the time the usu- rious transaction occurred.'"-*-^ Accrual of Cause of Action. — The "usurious transaction," from the date of which the two years' limitation prescribed by U. S. Rev. Stat., § 5198, U. S. Comp. Stat. 1901, p. 3493, for actions to recover back twice the amount of in- terest paid a national bank, begins to run, occurs on the date of the payment of the usurious interest, and not on the date of the loan or from the date when the debt was paid.^-'' scope of its power, under U. S. Rev. Stat., transferred to it prior to the rendition of § 5136, U. S. Comp. Stat. 1901, p. 3455, to the judgment, the bank may sue in its exercise "all such incidental powers as own name conformably to the local law, shall be necessary to carry on banking," to recover from such attorney the pro- where it accepts an assignment of a judg- ceeds of the judgment. Miller v. King, ment for collection, and agrees to hold the 223 U. S. 505, 56 L. Ed. 528. 32 S. Ct. 243. proceeds subject to the order of the as- 62-83a. Taking real estate security.— signer. Miller v. King, 223 U. S. 505, 55 Kerfoot v. Farmers', etc.. Bank. 218 U. L. Ed. 528. 32 S. Ct. 243. S. 281. 54 L. Ed. 1042. 31 S. Ct. 14. 50-43a. Title to paper and lien thereon. 64-92a. Rate of interest or discount.— —Miller v. King. 223 U. S. 505. 56 L. Ed. McCarthy 7'. First Nat. Bank, 223 U. S. 528. 32 S. Ct. 243. See ante. "Special De- 493. 56 L. Ed. 523. 32 S. Ct. 240. posits and Depositaries," TIT, B, 2, c. 64-92b. Accrual of cause of action.— 52-48a. Right to sue.— Miller v. King, McCarthy v. First Nat. Bank, 223 U. S. 223 U. S. 505, 56 L. Ed. 528, 32 S. Ct. 243. 493, 56 L. Ed. 523, 32 S. Ct. 240. Where a native bank accepts an assign- This "appears from an analysis of the ment of a judgment for collection, and two classes of cases referred to m Rev. agrees to hold the proceeds subject to the Stat., § 5198, noting that 'mterest paid' in order of the assignor, and, its attorney, the last clause is used in contradistinction after collecting the money, improperly to interest 'reserved or charged.' in the pays it over to a corporation which first sentence of the section. Banks may claimed that the cause of action had been make ordinary loans and charge interest 12 U S Enc— 13 193 67 BANKS AND BANKING. Vol. III. g. Rights and Liabilities — (2) As to Collateral. — See post, Pledge and Col- lateral Security. See, also, ante, "Special Deposits and Depositaries," III, B, 2, c. (5) Lien on Deposits. — See ante, "Special Deposits and Depositaries," III, B, 2, c. (6) As to Paper Refused Discount. — See ante, "Special Deposits and Depos- itaries," III, B, 2, c. 5. With Respect to Ownership qe Property. — See note 4. to be collected at the maturity of the note. But, as they usually reserve and deduct it in advance, by way of discount, the stat- ute is framed so as to apply to cases where the interest is paid by the debtor as well as to those in which it is reserved by the bank. These deductions, by way of discount, are not treated as payments. They do not come out of the debtor's pocket, though they lessen the amount which he receives when the loan is made, and when sued he may plead usury and escape liability for the amount thus charged or retained. But such reserva- tion by the bank, not being a payment made by the debtor, he, of course, can not avail himself of the right to maintain a suit given only to those who have paid interest." McCarthy v. First Nat. Bank, 223 U. S. 493, 56 L. Ed. 523, 32 S. Ct. 240. "But when the debtor actually makes a payment, as interest and the bank know- ingly receives and appropriates it as such, the usurious transaction is complete, the right of the one and the liability of the other is fixed, the cause of action arises, and vbe statute of limitations begins to run. There is no locus penitentise. That privi- lege is only granted to those banks which, having charged usury, may, by a refusal to accept interest when tendered, show that they will not carry the illegal con- tract into execution, and thus escape the twofold penalty." McCarthy v. First Nat. Bank, 223 U. S. 493, 56 L. Ed. 523, 32 S. Ct. 240, "Those courts which hold that the stat- ute begins to run from the payment of the debt, instead of the payment of the in- terest, have been influenced by statements of Mr. Justice Harlan in McBroom v. Scottish Mortg., etc., Co., 153 U. S. 318, 38 L. Ed. 729, 14 S. Ct. 852, which in- volved the construction of the usury stat- ute of the territory of New Mexico. That act dififered in several respects from Rev. Stat., § 5198. But that case did not rule that in a suit under the act of congress, the statute did not run from the date usury was paid and received as such. This court did not understand that such was the meaning of that case, as appears from his opinion in Brown v. Marion Nat. Bank, 169 U. S. 416, 42 L. Ed. 801. 18 S. Ct. 390, which involved a construction. Rev. Stat , § 5198. For he there points out the dif- ference between 'paying' and 'agreeing to pay,' and says that, 'if at any time the obligee actually pays usurious interest, as such the usurious transaction must be held to have then, and not before, occurred, and he must sue within two years there- after.' " McCarthy v. First Nat. Bank, 223 U. S. 493, 56 L. Ed. 523, 32 S. Ct. 240. 67-4. With respect to ownership of property. — Where a bank is incompetent to acquire and hold real estate, a convey- ance to it is not void, but voidable, and the sovereign alone can object. Neither the grantor nor his heirs, nor third per- sons can impugn it on the ground that the grantee has exceeded its powers. It is valid until assailed by the sovereign in di- rect proceedings instituted for that pur- pose. Kerfoot v. Farmers', etc.. Bank, 218 U. S. 281, 54 L. Ed. 1042, 31 S. Ct. 14, fol- lowing Smith V. Sheeley, 12 Wall. 358, 20 L. Ed. 430; National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; National Bank V. Whitney, 103 U. S. 99, 26 L. Ed. 443; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 28 L. Ed. 733. 5 S. Ct. 213; Fritts v. Palmer, 132 U. S. 282, 33 L. Ed. 317, 10 S. Ct. 93; and Swope v. Leffingwell, 105 U. S. 3. 26 L. Ed. 939, and stating that McCormick v. Market Bank, 165 U. S. 538, 41 L. Ed. 817, 17 S. Ct. 433; California Bank v. Kennedy, 167 U. S. 362, 42 L. Ed. 198, 17 S. Ct. 831. and Concord, etc., Nat. Bank v. Hawkins, 174 U. S. 364, 43 L. Ed. 1007, 19 S. Ct. 739, are in no way inconsistent with the doctrine laid down. "This rule, while recognizing the au- thority of the government to which the corporation is amenable, has the salutary effect of assuring the security of titles and of avoiding the injurious consequences which would otherwise result." Kerfoot V. Farmers', etc.. Bank. 218 U. S. 281, 54 L. Ed. 1042, 31 S. Ct. 14. The United States alone can object to the want of authority of a national bank, under Rev. St. U. S., § 5137 (U. S. Comp. St. 1901, p. 3460), to accept a conveyance of real property to be held in trust. Ker- foot V. Farmers', etc., Bank, 218 U. S. 281, 54 L. Ed. 1042, 31 S. Ct. 14, affirming decree Hall v. Same (1898), 46 S. W. 1000, 145 _Mo. 418. Right to hold as trustee. — See ante, "Acting as Trustee," HI, A, 7. 194 Vol. III. BANKS AND BANKING. 78-96 7. With Respect to Contracts ix General— c. National Banks— (2) Con- tracts of Guaranty. — A national bank which, in pursuance of a previous agree- ment with its debtor that he will devote to the discharge of his indebtedness a part of the proceeds of a loan to be obtained by him from another bank, re- quests the making of such loan, and guarantees its payment at maturity, must account to the lending bank for the sum which it receives for its own use in the execution of the agreement, even though such guaranty is beyond its powers under the national banking statutes.'^^^ 8. Restitution of or Compensation eor Property Obtained Ultr.\ Vires. — Although restitution of property obtained by a bank under contract which was illegal because ultra vires, can not be adjusted by force, of the illegal con- tract, yet, as the obligation to do justice rests in all persons, natural and artifi- cial, if a bank obtains the money or property of others without authority, the law, independently of expressed contract, will compel restitution or compensa- tion.^"^^ The relief afforded by the court in such cases gives to the owners so much of their money or property as actually passed into the hands of the bank.-*'*' IV. Officers and Agents. B. Powers, Duties and Liabilities— 1. Powers and Duties— f. Borrozv Money for Bank's Use. — The executive officers of a national bank may legiti- mately borrow money for the bank's use, in the usual course of business, with- out special authority from their board of directors.^^ 2. Liabilities — a. Ciml Liability — (1) Of Directors — (a) In General. — False Report by Directors. — The act of directors of a national bank in in- cluding as a part of the resources in a report of the condition of the bank, pur- suant to a call of the comptroller of the currency, assets which had previously been called to their attention by the comptroller as doubtful, with directions for their immediate collection or removal from the bank, is in effect an intentional violation of the national ' bank act, knowingly committed, so as to render them liable for a loss resulting to one purchasing, in reliance on such renort, stock 78-38a. Contract of guaranty. — Judg- ment, Appleton V. Citizens' Cent. Nat. Bank of New York (1908), 83 N. E. 470, 190 N. Y. 417, affirmed in Citizens' Cent. Nat. Bank v. Appleton, 216 U. S. 196, 54 L. Ed. 443, 30 S. Ct. 364, citing and quot- ing with approval in Logan County Nat. Bank z: Townsend, 139 U. S. 67, 74, 3.5 L. Ed. 107. 11 S. Ct. 496. and Aldrich z: Chemical Nat. Bank. 176 U. S. 618, 44 L. Ed. 611, 20 S. Ct. 498. 80-47a. Restitution of or compensation for property obtained ultra vires. — Citizens' Cent. Nat. Bank z\ Appleton, 216 U. S. 196, 54 L. Ed. 443, 30 S. Ct. 364, reviewing and commenting upon the rulings in Lo- gan County Nat. Bank v. Townsend, 139 U. S. 67, 35 L. Ed. 107, 11 S. Ct. 496; Aldrich v. Chemical Nat. Bank, 176 U. S. 618, 44 L. Ed. 611, 20 S. Ct. 498; Central Transp. Co. v. Pullman's, etc., Car Co., 139 U. S. 24, 35 L. Ed. 55, 11 S. Ct. 478. and Pullman's, etc.. Car Co. v. Central Transp. Co.. 171 U. S. 138, 43 L. Ed. 108. 18 S. Ct. 808. followed and approved in Rankin z'. Emigh, 218 U. S. 27, 54 L. Ed. 015, 30 S. Ct. 672. Those portions of the collections on ac- count of sales of butter actually coming into the hands of the receiver of a national bank which had virtually acquired and operated through its officers an insolvent creamery company doing business under an arrangement by which the proceeds nf sales, less a stated compensation, were to be divided pro rata among those furnish- ing the milk, may be recovered by the latter, even though the transaction maj'' have been beyond the powers of the bank, and they are further entitled to participate pro rata as general creditors to the ex- tent that the proceeds of such sales had been diverted and appropriated by the bank. Rankin v. Emigh, 218 U. S. 27. 54 L. Ed. 915, 30 S. Ct. 672, affirming judg- ment in Emigh v. Earling (1908), 115 N. W. 128, 134 Wis. 565, following Citizens' Cent. Nat. Bank r'. .Appleton. 216 U. S. 196. 54 L. Ed. 44:]. ;iO S. Ct. 364. Contract of guaranty. — See ante. "Con- tracts of Guaranty," Til. B. 7, c. (2). 80-47b. Relief afforded. — Rankin :•. Emigh. 218 U. S. 27. 54 L. Ed. 915, 30 S. Ct. 672. 96-3a. Borrow money. — Rankin v. Citv Nat. Bank, 208 U. S. 541. 52 L. Ed. 610. 28 S. Ct. 346, affirming Cheney v. City Xat. Bank, 141 Fed. 587, 75 C. C. A. 343. 195 97-104 BANKS AND BANKING. Vol. III. of the bank on which an assessment is soon after made on announcement by the comptroller that its capital stock has become totally impaired.^^ (b) To Bank and Stockholders.— StoclsholdeY Purchasing Stock in Re- liance upon Report of Directors.— See ante, "In General." I\'. B, 2, a, (1), (a). (2) Of Cashier or Other Officer and His Sureties — (a) Sco/^e of Bond and Liability T/z^r^o;?.— Representation That Accounts Examined, etc., As Warranty. — An official certificate, made in contemplation of the renewal of a bank cashier's bond, that, just prior thereto, his books and accounts "were ex- amined and found correct in every respect, and all moneys accounted for," is not a warranty of the correctness of such accounts, and the existence of dis- crepancies covered up by false entries or other bookkeeping devices will not avoid the new bond if due diligence was used in making the examination. ^^^^ (c) Supervision and Notice of Default or Loss. — Liability under the bond will be defeated if.it appears that the loss attributable to the dishonesty of the employee was due to the neglect of the bank to make the examinations required by the bond. 2'^'' Burden of Pleading and Proof. — The burden is upon the surety, in an action on a cashier's bond, to plead and prove a breach of the bank's agree- ment that monthly examinations of the cashier's books should be made, since such requirement, if a condition at all, was a condition subsequent rather than precedent."''^ The question whether reasonably proper monthly examinations of the cashier's books were made is for the jury, in an action on his bond, where there is evidence that such cashier made monthly reports which v»^ere regularly inspected once a month by the bank's officers ; that the embezzlements which were not detected by such inspection were concealed by false entries relating to remittances to the bank's correspondents, whereby the balances in such corre- spondent banks were made to appear much larger than they actually were, and that the officers were misled by the bookkeeper's innocent use, as the basis for ledger entries, of the cashier's falsified slips, purporting to show the cash used to buy exchange for remittances. 2- '' The good faith of the bank in certifying, in contemplation of a renewal of the cashier's bond, that just prior thereto his books and accounts "were examined and found correct in every respect, and all moneys accounted for," is a question for the jury in an action on the new bond, where there is evidence that due diligence was used in making the examination, although it failed to disclose discrepancies covered up by false entries or other bookkeeping devices. 2*^*^ (3) Enforcement. — Form of Action. — The common-law action of deceit does not lie against the director of a national bank. The only measure of their liability is laid down in the banking laws, but if the pleading in an action in a state court satisfy the test of liability imposed by the banking laws, the action 97-8a. False reports to comptroller.— Nichols, 224 U. S. 346. .56 L. Ed. 795, 32 S. Thomas v. Taylor, 224 U. S. 73, 56 L. Ed. Ct. 475. 673, 32 S. Ct. 403. 104-28a. Burden of proving breach. — Ti- The fact that such statement was not tie Guaranty, etc.. Co. v. Nichols, 224"u. S. voluntary, does not relieve the directors 345. 55 l. Ed. 795, 32 S. Ct. 475. from liability. Ihomas z'. 1 aylor. 224 U. ,_. __, •,,,, ^, ■ . , S '~3 56 L Ed 673 S'' S Ct 403 104-28b. Whether examination made ^ lOO-l'sa. Representations as to examina- ^1"^^*^°" ^'^^ ^Z^/^^^^^l .PTaT^^\ 1'.' tion of accounts, as warranty.-Title Guar- ^.''■J'-^'''}'''^^' ^-^ U. S. 346. 56 L. Ed. 795, anty, etc.. Co. z: Nichols, 224 U. S. 346. 56 "^" ^- ^^- ^'^• L. Ed. 795, 32 S. Ct. 475. 104-28C. Question of good faith for jury. 102-25a. Supervision and notice of de- —Title Guaranty, etc.. Co. r. Nichols, 224 fault or loss.— Title Guaranty, etc., Co. z: U. S. 346. 56 L. Ed. 795. 32 S. Ct. 475. 196 Vol. III. BANKS AND BANKING. 106-111 will be sustained without regard to the form of the pleadings or the designation of the ■action.^^'^ b. Criminal Liability — (3) Bmbezdement, Misappropriation or Misapplica- tion of Funds — (b) Misappropriation or Misapplication of Funds — aa. Ele- ments of Offense and Indictment Therefor. — To constitute a misapplication by an' officer of a national bank, of its funds, under § 520^), U. S. Rev. Stat., there must be a conversion by the party charged of the funds of the bank to his own use or the use of some person other than the bank.^* There is a dis- tinction between embezzlement and a willful misapplication of the funds. There may be a willful misapplication of the funds, even though the officer have not the actual possession of them. He may have such control and power of man- agement "as to direct an application of the funds in such manner and under such circumstances as to constitute an offense."-* ^^ The indictment must con- tain an averment of the conversion ^'^^ but need not charge a conversion bv the 106-33a. Form of action. — Thomas v. Taylor, 224 U. S. 73, 56 L. Ed. 673, 32 S. Ct. 403. See, also, post, FRAUD AND DECEIT. Pleading — Designation of action. — The tacts pleaded in an action for attesting as directors a false report of the condition of a national bank, in reliance upon which plaintifif was induced to purchase some of its stock, determine the rights of plaintiff, so that a recovery is not prevented by the designation of the action as one for de- ceit, instead of as one arising under the national bank act. Thomas t. Taylor, 224 U. S. 73, 56 L. Ed. 073, 32 .S. Ct. 403. Change of theory of case on appeal. — Directors of a national bank, in an action against them for attesting a false report of the condition of the bank, in reliance upon which plaintiff purchased stock of the bank, can not urge on appeal that if the action in the trial court had not been based on deceit, instead of on a violation of the National Bank Act, they would have been able to make a showing under which they would have been acquitted of knowingly violating such act, where the action was tried on the theorj' that, to maintain an action for deceit, knowledge of the falsity of the representations must be shown, and their defense was that the requirements of the National Bank Act had not been vio- lated. Thomas v. Taylor, 224 U. S. 73, 56 L. Ed. 673, 32 S. Ct. 403. 109-44. United States v. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. follow- ing United States v. Britton, 107 U. S. 655, 27 L. Ed. 520, 2 S. Ct. 512. "In United States v. Britton, 107 U. S. 655, 27 L. Ed. 520, 2 S. Ct. 512, it was de- cided that the 'misapplication made an of- fense by this statute means a misapplica- tion for the use, benefit, or gain of the party charged,' or someone other than the association. And further, that to consti- tute the offense 'there m.ust be a conver- sion to his own use or the use of someone else of the moneys and funds of the asso- ciation by the party charged." '' United States V. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. "The case of United States z'. Britton, 107 U. S. 655, 27 L. Ed. 520, 2 S. Ct. 512, was referred to in United States v. North- way, 120 U. S. 327, 30 L. Ed. 664, 7 S. Ct. 580, as holding that it was of the essence of the criminality of the misapplication that there should be a conversion of the funds to the use of the defendant or of some person other than the association, with intent to injure or defraud the asso- ciation." United States z'. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. Ill -48a. Embezzlement and willful mis- application distinguished. — United States z'. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98, following United States z'. Brit- ton, 107 U. S. 655, 27 L. Ed. 520, 2 S. Ct. 512. and United States v. North way, 120 U. S. 327, 30 L. Ed. 664, 7 S. Ct. 580. lll-48b. Averment of conversion. — United States z: Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98, following Coffin v. United States, 156 U. S. 432, 39 L. Ed. 481, 15 S. Ct. 394. In United Slates v. Britton, 107 U. S. 655, 27 L. Ed. 520, 2 S. Ct. 512, "a count in an indictment was sustained which charged the misapplication to have been made by causing funds to be paid out to the use and l)enefit of the officer indicted in an un- authorized and unlawful purchase of the shares of stock of certain stock companies, without the knowledge and consent of the association, and with intent to injure it." United States f. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. In Coffin V. United States. 156 U. S. 432, 39 L. Ed. 481, 15 S. Ct. 394. an indictment was held sufficient as it described the con- version to consist of paying money out of the funds of the bank to a designated per- son when that person was not entitled to take the funds, and that, owing to the in- solvency of such person, the money was lost to the bank. United States z: Heinze. 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. Tn Coffin v. United States, 162 U. S. 664. 40 L. Ed. 1109, 16 S. Ct. 943, the willful 111-119 BANKS AND BANKING. Vol. III. defendant of the bank's funds to his own use, if it does allege a conversion by him, as the conversion may be to the use of another than the bank.^s'= The in- tent to injure and defraud must be averred but ho averment that the defendant procured the discount by the use of fraudulent means, or that he was insolvent or knew himself to be so, is necessary. ^^"^ bb. Application of Rules to Specific Acts. — See note 51. (4) Making False Entries— {c) In Reports.— The intention to deceive is essential to constitute a violation of § 5209, U. S. Rev. Stat., forbidding the making of false entries in a report to an agent appointed to examine the afifairs of a bank.'^"'' Intent to injure a bank by a false report to the comptroller of misapplication was alleged to have been done "'with intent to convert the same to the use of the Indianapolis Cabinet Com- pany," whose check was paid, though it had no funds in the bank. And such aver- ment, it was said, stated the misapplication and actual conversion of money by the methods described; that is to say, by pay- ing it out of the funds of the bank to a designated person when that person was not entitled to take the funds, and that, owing to the insolvency of such person, the money was lost to the bank. United States i: Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. 111-48C. United States r. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. Discount of unsecured note. — An indict- ment for the willful misapplication of funds of a national bank by an officer, with intent to defraud, in violation of Rev. St. U. 8., § 5209 (U. S. Comp. St. 1901, p. 3497), by receiving and discounting with its money as absolutely unsecured prom- issory note of a named partnership, where- by the proceeds of the discount of the note were wholly lost to the bank, need not charge a conversion by the recipient of the proceeds of the discount, provided it does allege a conversion by such officer. The conversion may be to the use of ei- ther. United States v. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. A conversion is charged by the allega- tion of an indictment for willful misappli- cation of the funds of a national bank, in violation of U. S. Rev. Stat., § 5209, U. S. Comp. Stat. 1901, p. 3497, that defendant, being president of the bank, and having control of its funds, with intent to injure and defraud, received and discounted a promissory note for a specified sum, for his use. benefit, and advantage, knowing that the note was wholly unsecured, whereby the proceeds of the discount were wholly lost to the bank. United States v. Heinze, 218 U. S. 532, 54 L. Ed. 1139. 31 S. Ct. 98. lll-48d. Averment of intent to injure and defraud. — In Evans v. United States, 153 U. S. 584. 38 L. Ed. 830, 14 S. Ct. 934, where the sufficiency of an indictment was considered, "the misapplication was de- scribed to be the unlawful receiving and discounting with the money and funds of the bank, with intent to defraud the bank, and for the use, etc., of Evans, a note made l;y Evans, which, when so discounted, 'was not then and there well secured,' which he and the cashier well knew, and which note v>-as never paid, by reason of which the bank suffered loss in that amount, with in- tent in Evans to injure and defraud the bank. It was said: * * * 'Xo averment was necessary that such discount was pro- cured by fraudulent means, since the of- fense consists not in the use of fraudu- lent means, but in the discount of a note which both parties knew to be unsecured, with the intent thereby to defraud the l)ank. An averment that Evans was * * * insolvent or knew himself to be so was also unnecessary, in view of the al- legation that Evans knew that the note was not secured, and procured the same to be discounted with intent to defraud the bank.' It was said that weight must be given to the words knowingly, wilfully, and vmlawfully and fraudulently, and 'to the general allegation of an attempt to de- fraud.' " United States v. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 1144, 31 S. Ct. 98. 112-51. Discounting unsecured paper. — While the mere discount of an unsecured note, even if the maker and the officer making the discount knew it was not well secured, would not necessarily be a crime, if the maker believed that he would be able to provide for it at maturity, yet, if his original intent was to procure the note to be discounted in order to defraud the bank, every element of criminality is pres- gj^^ * * *_ fiig criminality really de- pends upon the question whether there was, at the time of the discount, a deliber- ate purpose on the part of the defendant to defraud the bank of the amount. United States V. Heinze, 218 U. S. 532. 54 L. Ed. 1139, 31 S. Ct. 98, approving Evans z.. United States, 153 U. S. 584, 38 L. Ed. 830, 14 S. Ct. 934. 119-77a. Intention to deceive. — United States v. Corbett, 215 U. S. 233, 54 L. Ed. 173, 30 S. Ct. 81. 198 Vol. III. BANKS AND BANKING. 119-164 the currency is not negatived as matter of law by the fact that the report showed the bank to be in better condition than it really was.'^'^'' The comptroller of the currency is an agent within the provisions of Rev. Stat. U. S., § 5209 (U. S. Comp. St. 1901, p. 3497), that every oflficer of a national bank who makes any false entry in a report to any agent appointed to examine the affairs of such association shall be guilty of a misdemeanor, and it is immaterial that Rev. Stat. § 5240 (U. S. Comp. St. 1901, p. 3516), confers power upon him to appoint suitable agents to examine the affairs of such banks.'^"^ V. Stock and Stockholders. E. Rights and Liabilities of Stockholders — 2. Liabilities — b. Extraordi- nary Statutory Liability — (5) As Affected by Transfer of Stock — (a) In Gen- eral. — \\'here one permits his name to be registered on the books of the bank as a shareholder, or where he fails to obtain a transfer of the shares to another name, although he has in fact parted with his stock, such shareholder remains liable to the creditors.-^*^^ Where the shareholder has performed every duty which the law imposes upon him in order to secure a transfer of the stock, the fact that it is not transferred on the register of the bank does not continue his liability as such shareholder. ^"^ (c) Transferee's Liability. — One who was notified that shares in a national bank had been transferred in his name, although he had in fact no interest therein, and who indorsed the certificates in blank, but took no steps to have the stock transferred to the name of the true owner, can not avoid liability for an assessment thereon made by the comptroller to meet the debts of the bank after its insolvency."^ ^^ (5a) Nonassenting Stockholder to Extension of Bank's Corporate Existence. — Shareholders in a national bank which has extended its corporate existence, conformably to Act July 12, 1882, c. 200, 22 Stat. 162 (U. S. Comp. St. 1901, p. 3457), ceased to be such upon the expiration of the original term of the bank's corporate life, and therefore could not thereafter be chargeable with personal liability for its debt, where they took the steps required of nonassent- ing stockholders in § 5 of that act by giving notice of a desire to withdraw, and by appointing an appraiser to obtain a valuation of their sh'ares."^^^ 3. Rights of Action — a. Poicer to Enjoin Unnnse and Ultra Vires Act. — • Quaere, the right of a stockholder to prevent by injunction acts beyond the corporate powers of the bank or commercially unwise. ^'^ b. Recoverx of Damages Resulting from Unnnse or Ultra Vires Acts. — Con- struction of New Bank Building. — A stockholder in a national bank can not recover damages or make any claim against the bank for tearing down its old building and constructing a new one during the pendency of an action by him 119-77b. United States t. Corbett, 215 U. 148-71a. Transferee's liability.— Judg- S. 233, .54 L. Ed. 173, 30 S. Ct. 81. ment 155 F. 107, S3 C. C. .\. 567, affirmed. 119-77C. Comptroller as agent. — United Kenyon v. Fowler, 215 U. S. 593, 54 L. Ed. States V. Corbett, 215 U. S. 233. 54 L. Ed. 341, 30 S. Ct. 409. 173, 30 S. Ct_. 81 reversing 162 Fed. 687. i49-73a. Nonassenting stockholders to 142-56a. Liability as affected by transfer ^^^^^^{^.^ of bank's corporate existence.— of stock— Apsey z;. Kimball, 221 US. ol4, ^ ,, Kimball. 221 U. S. 514. 55 L. Ed. 55 L. Ed. 834 31 S. Ct. 690 698, followmg ^^ ^^ g^ ^^ gg. affirming judgments in National Bank v. Case 99 U. S. 628 2oL. g^^^^ „^, Whittemore. 85 X. E. 91. 199 Ed. 448; Matteson v Dent, 176 U. S. o21. ^ g^ ^^^ Kimball v. .\psev. 164 F. 830, 44 L. Ed. 571, 20 S. Ct. 419. ^r. c C \ 6^4 142-57a. Apsev '■. Kimball, 221 U. S. 514, "^^ ^- ^- -^- ''"'"*• 55 L Ed 834 31 S. Ct. 695. 698, following 164-27a. Enjoining ultra vires or unwise Whitney z: Butler, 118 U. S. 655, 30 L. Ed. acts.— Wingert :: First Nat. Bank. 223 U. 266, 7 S. Ct. 61: Earle z: Carson, 188 U. S. S. 670, 56 L. Ed. 605. 32 S. Ct. 391. 42, 47 L. Ed. 373, 23 S. Ct. 254. 199 164-195 BARRATRY. Vol. IIL to restrain it from doing so, whether such action by the bank was lawful or unlawful. 2' '^ VI, Taxation. See post, Revenue Laws ; Taxation. Vin, Insolvency, Assignment and Receivership. F. Receivers — 3. Title to Assets and Recovery Thereof. — With Re- spect to the Title to Its Assets. — A receiver of a bank stands in no better position than the bank while it was a going concern. ^ 2b I. Set-Off. — Xo right of equitable set-off in favor of a bank against the re- ceiver of its insolvent correspondent arises out of the voluntary payment by the former bank of an overdraft of its correspondent, in reliance upon certain notes sent for discount and credit, after receiving no response to its notification that such notes would not be discounted, but w^ould be held as collateral, and that credits should either be transferred from other banks or currency shipped.^*^ BARRATRY. — See the title Barratry, vol. 3. p. 201, and references there given. 164-27b. Construction of new bank damages. Milkman v. Ordway, 106 Mass. building.— Wingert r'. First Xat. Bank. 223 232, 253; Lewis r. North Kingston, 16 R. I. U. S. 670, 56 L. Ed. 605, 32 S. Ct. 391. 15, 27 Am. St. Rep. 724, 11 Atl. 173." "No doubt, after the filing of a bill for Wingert z: First Nat. Bank, 223 U. S. 670, an injunction defendants proceed at their 56 L. Ed. 605, 32 S. Ct. 391. peril, even though no injunction is issued; 184-12b. Title to assets. — Rankin v. and, if they go on to inflict an action- City Nat. Bank. 208 U. S. 541. 546, 52 L. Ed. able wrong upon the plaintiff, will not be 610. 28 S. Ct. 346. See post, RECEIVERS, allowed to defeat the jurisdiction of the 195-48a. Set-off. — Hanover Nat. Bank court by their own act. In such a case the v. Suddath, No. 2, 215 U. S. 122, 54 L. Ed. bill will be retained for the assessment of 120, 30 S. Ct. 63. 200 Vol. III. BEQUEST. 208 BASTARDY. III. Legitimation, 201. B. How Legitimation Is AlTected, 201. 2. By Statute. 201. a. Construction of Statutes, 201. CROSS REFERENCES. See the title Bastardy, vol. 3, p. 204, and references there given. III. Legitimation. B. How Legitimation Is Affected — 2. By Statute — a. Construction of Statutes. — The federal courts will adopt the construction of the Hawaiian stat- ute legitimatizing children born out of wedlock upon the marriage of their parents, as not applicable to the offspring of adulterous intercom se.-^^ BENEFICIAL AND BENEVOLENT ASSOCIATIONS.— See the title Ben- eficial AXD BexevolExt Associatioxs, vol. 3, p. 211. and references there given. BENEFICIARIES. — As to beneficiaries of school fund, see post, Public Laxds. BEQUEST.— See post, \\'ills. 208-23a. Construction of statute. — The courts of Hawaii liaving, prior to the an- nexation, construed the statute of 'Ms.y 24, 1866, legitimatizing children born out of wedlock by the subsequent marriage of the parents as not applicable to the off- spring of adulterous intercourse, and the organizing act of the Hawaii territory having continued the laws of Hawaii not inconsistent with the constitution or laws of the United States, this Court adopts the construction of the Hawiian statute given by the courts of that countrjr. Kea- ioha f. Castle, 210 U. S. 149. 52 L. Ed. 998, 28 S. Ct. 684. While in different jurisdictions statutes legitimatizing children born out of wed- lock by the subsequent marriage of the parents have been differently construed as to the application thereof to the offspring of adulterous intercourse, in construing such a statute of a territory the federal supreme court will lean towards the inter- pretation of the local court. Kealoha v. Castle. 210 U. S. 149, 52 L. Ed. 998, 2S S. Ct. 684. The construction of a statute, affixed thereto for many years before territory is acquired by the United States, should be considered as written into the law itself. Kealoha v. Castle, 210 U. S. 149, 52 L. Ed. 998, 28 S. Ct. 684. See, generally, post, STATUTES. 201 216-223 BILL OF PARTICULARS. Vol. III. II. III. BEST AND SECONDARY EVIDENCE. Rules as to Best Evidence, 202. C. Application of the Rule, 202. 1. Writings Generally, 202. Secondary Evidence, 202. A. General Statement, 202. CROSS REFERENCES. See the title Best and Secondary Evidence, vol. 3, p. 214, and references there given. In addition, see post. Documentary Evidence; Parol Evidence. II. Rules as to Best Evidence. C. Application of the Rule — 1. Writings Generally. — Where the object- ing party gives notice that the production of the originals themselves will be in- sisted upon, copies can not be used.^^^ III. Secondary Evidence. A. General Statement. — See note 26. Although the testimony offered may not be the best evidence, it can not be disregarded if offered and admitted -without objection.^ ^^ BETWEEN.— See note 1. BEYOND A REASONABLE DOUBT.— See post, Reasonable Doubt. BIGAMY AND POLYGAMY.— See the title Bigamy and Polygamy, vol. 3, p. 225, and references there given. BILL OF EXCEPTIONS.— See post, Exceptions, Bill of, and Statement oE Facts on Appeal. BILL OF EXCHANGE.— See post. Bills, Notes and Checks. BILL OF LADING.— See the title Bill oe Lading,, vol. 3, p. 232, and references there given. BILL OF PARTICULARS.— See the title Bill oe Particulars, vol. 3, p. 243, and relerences there given. 216-lla. Necessity for production of originals. — Under par. 4277, § 399, Code Civ. Proc, Oklahoma of 1893, the original books of entry must be produced on the trial; their production before the notary taking the deposition of the witness who kept the books is not sufficient, and copies made by the notary can not be used where the objecting party gives notice that the production of the books themselves will lae insisted upon. Drum-Flato Comm. Co. V. Edmisson, 208 U. S. 534, 52 L. Ed. 606, 28 S. Ct. 367. And see post, DOCU- MENTARY EVIDENCE. 218-26. Non-production of originals.^ — After showing that an inventory of a stock of goods destroyed by fire was taken and accidentally lost, parol testimony of what the inventory showed the goods to be worth is competent as to the value of the stock. Liverpool, etc., Ins. Co. v. Kearney, 46 S. W. 414, 2 Ind. T. 67, affirmed 94 F. 314, 36 C. C. A. 265, affirmed in Liverpool, etc., Ins. Co. V. Kearney, 180 U. S. 132, 45 L. Ed. 460, 21 S. Ct. 326. 222-31a. Effect of failure to object. — Kansas City, etc., R. Co. v. Albers Comm. Co., 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 316. See, also, Daiz v. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. 223-1. Computation of time. — In the provisions of the organic act that "all franchises granted by the Hawaiian gov- ernment in conformity with the laws of Hawaii, between the seventh day of July, eighteen hundred and ninety-eight, and the twenty-eighth day of September, eighteen hundred and ninety-nine, are hereby ratified and confirmed;" July 7 was not excluded from the ratification by the word between. Honolulu, etc., land Co. V. Wilder, 211 U. S. 137, 142, 53 L. Ed. 121, 29 S. Ct. 44. See post, TIME. 202 Vol. III. BILL OF SALE. 250-252 BILL OF REVIEW. IV. Filing BiU, 203. A. Performance of Decree as Prerequisite, 203. C. Statute of Limitations and Laches, 203. CROSS REFERENCES. See the title BilIv of Review, vol. 3, p. 244, and references there given. IV. Filing Bill. A. Performance of Decree as Prerequisite. — Permitting a bill of review- to be filed without a previous payment of the moneys awarded by the decree sought to be reviewed is not an abuse of discretion, where leave to file is con- ditional upon the furnishing of an indemnity bond, which is thereafter ex- ecuted.'^'^* C, Statute of Limitations and Laches. — See note 50. BILL OF REVIVOR. — See ante, Abatement, Revival and Survival, p. I. BILL OF RIGHTS. — See post, Constitutional Law ; Due Process of Law. BILL OF SALE. — See post. Mortgages and Deeds of Trust ; Sales. 250-33a. Performance of decree as pre- counted in applying the two years' lim- requisite. — Frsenkl z'. Cerecedo Hermanos, itation for filing such bill, fixed by anal- 216 U. S. 295, 54 L, Ed. 486, 30 S. Ct. 322. ogy to the time allowed by law for an 252-50. Limitations and Laches. — The appeal to the federal supreme court, time which elapsed between the tendering Frsenkl v. Cerecedo Hermanos, 216 U. S. of a bill of review to the federal district 295, 54 L. Ed. 486, 30 S. Ct. 322. See post, court for Porto Rico for filing, and the LIMITATION OF ACTIONS AND AD- permission given to file, should not be VERSE POSSESSION. 203 276-350 BILLS, NOTES AXD CHECKS. Vol. III. BILLS, NOTES AND CHECKS. II. Form and Requisites, 204. 1. Delivery, 204. III. Consideration, 204. D. Legality of Consideration, 204. 2. What Contracts Are Invalid, 204. g. Abandonment of Contest of Right to Indian Allotment, 204. XII. Payment and Discharge, 204. A. Payment, 204. 9. Recovery Back of Payments, 204. b. Payment of Forged Paper, 204. »(1) Where Payor's Own Name Is Forged, 204. CROSS REFERENCES. See the title Bills, Notks axd Ciikcks. vol. 3, p. 257, and references there given. II. Form and Requisites. 1. Delivery. — Delivery is essential to the validity of a note, and is insufficient if surreptitiously obtained. ^'^ III. Consideration. D. Legality of Consideration — 2. \\'hat Contracts Are Invalid — g. Abandonment of Contest of Right to Indian Allotment. — The abandonment of a bona fide contest between two Indians before the commission to the Five Civilized Tribes as to the right to an allotment, arising from a claim based upon selection by the contestee and upon occupancy and improvements by the contestant, is a lawful consideration for a promissory note given by the former to the latter.ssa XII. Payment and Discharge. A. Payment — 9. Recovery Back of Payments. — See note 54. b. Payment of Forged Paper — (1) Ulierc Payor's Ozvn Name Is Forged. — • See note 55. 276-5?a, Delivery — Surreptitious deliv- rule, however, to tlie government and its ery. — McKim z'. Elton, 4 Dall. 58, 1 L. Ed. duty in paying out the millions of pension '■11. claims, which are yearly discharged by _ 280-88a. Abandonment of contest of means of checks, would require it to be right to Indian allotment. — Williams :■. assumed that that was known, or ought to First Xat. Bank, 216 U. S. 582, 54 L- Ed. have been known, which on the face of the 625, 30 S. Ct. 441, affirming 95 P. 457, 20 situation was impossible to be known, Okl. 274. would besides wholly disregard the rela- 350-54. As to recovery back of money rion between the parties and would also paid on pensions where the payee's name require that to be assumed which the ob- is forged, see post, PEXSTOXS. vious dictates of common sense make clear 350-55. Where payor's name is forged. — could not be truthfully assumed." United United States z'. National Exch. Bank, 214 States z'. National Exch. Bank, 214 U. S- U. S. 302, 312, 53 L. Ed. 1006, 29 S. Ct. 665. 302, 317, 53 L. Ed. 1006, 29 S. Ct. 665. "The exceptional rule, (referring to rule "The United States is not before us as laid down in the text), as to certain classes the acceptor of a draft drawn upon it and of commercial paper proceeds upon an as- charged with knowledge of the signature sumption of knowledge of duty to know, of t!ie drawer; nor was it a bank which had naturally arising from the situation of the paid the check of a depositor and was parties, entirely consonant with their charged with knowledge of the signature capabilities, and in accord with the common of such depositor. The forgery here was sense view of their relation. To apply the in the name of the payee, and it is there- 204 Vol. III. BOTTOMRY AND RESPONDENTIA. 446 BILL TO QUIET TITLE.— See post. Ouikting Title. BLASTING POWDER.— See post, Powder. BLOCKADE.— See the title Blockade, vol. 3, p. 364, and references there given. BLOODSTAINS.— See the title Bloodstains, vol. 3. p. 380, and references there given. BOARD OF DIRECTORS.— See ante. Banks and Banking, p. 184; post, Of- EicERS and Agents oe Private Corporations. BOATS.— See ante, Admiralty, p. 10; post, Maritime Liens; Salvage; Ships and Shipping. BONA FIDE.— See ante, Bills. Notes and Checks, p. 204; post, Bonds; Chattel Mortgages; Coupons; Judicial Salens; Municipal, County, State and Federal Securities ; Sales ; Vendor and Purchasii^r. And see cross ref- erences under Good Faith. BONDS.— See the title Bonds, vol. 3, p. 382, and references there given. BOOKKEEPING.— See note la. BOOTY OF WAR.— See note lb. BOTTOMRY AND RESPONDENTIA.— See tlfe title Bottomry and Re- spondentia, vol. 3. p. 448, and references there given. fore impossible, as it was in the case of White V. The Continental Bank and in the Leather Manufacturers' Bank case, to bring this cause within the exceptional rule without holding that the United States was charged with knowledge of the signature of the vast multitude of pers6ns who are entitled under the law to receive pensions." United States v. National Exch. Bank. 214 U. S. 303, 317, .53 L. Ed. lOOG, S9 S. Ct 665. 446-la. Bookkeeping as interstate com- merce. — The uniform system of account- ing prescribed and the report called for are such as it is within the power of the interstate commission to require under § 20 of the Act of June 29, 1906. Nor do the requirements exceed the constitu- tional authority of congress to pass such a law. While bookkeeping is not inter- state commerce, it may and ought to show how a business which, in part at least, is interstate commerce, is carried on, in or- der that the commission, charged with the duty of making reasonable rates and pro- hibiting unfair and unreasonable ones. may know the nature and extent of the business of the corporation, the cost of its interstate transactions and otherwise to inform itself so as to enable it to properly regulate the matters which are within its authority. Interstate Commerce Comm. V. Goodrich Trans. Co., 224 U. S. 194, 216, 56 L. Ed. 729. 32 S. Ct. 436. See post, IN- TERSTATE AND FOREIGN COM- MERCE. 446-lb. " 'Booty of war' was distin- guished from 'a seizure for immediate use of the army.' This is a distinction impor- tant to observe, and is recognized explicitly or implicitly in all of the cases and refer- ences contained in the able argument of counsel. It accommodates, when its full range is properly understood, the neces- sities of the conqueror and the personal and property rights, if they may be called such, of the conquered. And there is nothing in the president's proclamation of July 13, 1898, which militates against it.'" Herrera v. United States, 222 U. S. 558. 573. 56 L. Ed. 316, 32 S. Ct. 179. See post, PRIZE. 205 469-476 BOUNDARIES. Vol. III. BOUNDARIES. II. Boundaries of Private Property, 206. A. Description and Indication of Boundaries, 206. 3. Conflicting Elements, 206. a. Relative Importance of Conflicting Elements, 206. (2) Monuments, 206. (b) Natural Monuments, 206. 5. Waters and Watercourses as Boundaries, 206. b. Navigable Waters, 206. (3) Boundaries in United States, 206. (a) State Laws Control, 206. aa. In General, 206. (d) Tidal Waters, 207. (c) Nontidal Waters, 207. aa. Navigable Nontidal Waters, 207. c. Nonnavigable Waters, 207. III. State Boundaries, 207. A. In General, 207. D. Boundaries of Particular States, 207. E. Waters and Watercourses as Boundaries, 208. 1. Rivers as Boundaries between States, 208. a. In General, 208. 3. Shifting of Shore or Channel, 208. F. Construction of Description, 209. G. Establishment of Territorial Boundaries, 209. 1. By the States, 209. a. Power to Settle — Compact — Convention, 209. (1) In General, 209. b. Recognition and Acquiescence, 209. 2. By Judicial Proceedings, 210. b. Mode of Proceedings, 210. (2) Commission of Boundary, 210. (b) Commissioners to Retrace, Remark and Re-Es- tablish, 210. g. Costs, 210. CROSS REFERENCES. See the title Boundarie;s, vol. 3, p. 461, and references there given. II. Boundaries of Private Property. A. Description and Indication of Boundaries — 3. Conflicting Ele- ments — a. Relative Importance of Conflicting Elements — (2) Monuments — (b) Natural Monuments. — See note 39. 5. Waters and Watercourses as Boundaries — b. Navigable Waters — (3) Boundaries in United States — (a) State Lazvs Control — aa. In General. — See note 80. 469-39. Monuments. — Monuments in a 476-80. State law controls navigable royal grant prevail over a description by waters. — Government grants for lands courses, distances, and area where a dis- bordering upon navigable waters extend crepancy exists. Spreckels v. Brov,-n, 212 only to high-water mark, for the title to U. S. 208, 53 L. Ed. 476, 29 S. Ct. 256. the shore and to the lands under such 206 Vol. III. BOUNDARIES. 478-494 (b) Tidal Waters. — See note 85. (c) Nontidal Waters — aa. Navigable Nontidal Waters. — See note 89. c. Nonnavigahle Waters. — See note 95. III. State Boundaries. A. In General.— "Boundary means sovereignty, since in modern times sovereignty is mainly territorial, unless a different meaning clearly appears. "^''^ Concurrent Jurisdiction. — Concurrent jurisdiction, properly so called, on rivers is familiar to our legislation, and means jurisdiction of two powers over one in the same place. There is no reason to give unusual meaning to the phrase. The Columbia river is made the common boundary to Oregon and Washington, and to each of these states is given concurrent jurisdiction on the water to that river. It was held to extend to civil as well as criminal matters and was broadly a grant of jurisdiction to each of the states.*^^'' Congress can not change the boundary of a state without its consent.'^^^ In the settlement of boundary disputes between states the court should apply the principles of law and equity to the facts in the case, in such manner as will least disturb private rights and titles regarded as settled by the people most affected, and the lawmaking bodies of the adjoining states should confirm such private rights in accordance with such principles.^^'^ D. Boundaries of Particular States.— For the boundary of particular states, see note 72. waters is in the state within which the waters are situated, as an incident of sov- ereignty. Niles V. Cedar Point Club, 85 F. 45, 29 C. C. A. 5, affirmed Xiles v. Cedar Point Club, 175 U. S. 300, 44 L. Ed. 171, 20 S. Ct. 124. 478-85. Tidal waters. — A patent by the United States to land along a stream where the tide ebbs and flows conveys to the high-tide line along the shore. Mo- bile Transp. Co. v. City of Mobile, 30 So. 645, 128 Ala. 335, 64 L. R. A. 333, 86 Am. St. Rep. 143. affirmed Mobile Transp. Co. V. Mobile, 187 U. S. 479, 47 L. Ed. 266, 23 S. Ct. 170. 478-89. Navigable nontidal river. — United States V. Chandler-Dunbar Water Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. A patent from the United States, de- scribing the land granted as bounded by the St. iNIary's river, carries with it the title to small, unsurveyed islands on the American side of the international bound- ary line where, under the laws of the state, a grant of land bounded by a stream, whether navigable in fact or not, carries with it the bed of the stream to the center of the thread. Decree (1907) 152 F. 25, 81 C. C. A. 221, affirmed. United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. 480-95. Nonnavigable waters. — United States V. Chandler-Dunbar Water Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. 494-69a. State boundaries — Meaning of boundary. — Central R. Co. v. Jersey City. 209 U. S. 473, 479, 52 L. Ed. 896, 28 S. Ct. 592. 494-69b. Concurrent jurisdiction. — Xiel- son V. Oregon, 212 U."S. 315, 53 L. Ed. 528, 29 S. Ct. 383. 494-69C. Power of congress. — Washing- ton V. Oregon, 211 U. S. 127, 53 L. Ed. 118, 29 S. Ct. 47. 494-69d. Adjustment of boundary dis- putes. — Maryland v. West Virginia. 217 U. S. 1, 47. 54 L. Ed. 645, 30 S. Ct. 268. 494-72. Kansas and Missouri. — The ob- ject of the Act of June 7, 1836, c. 86, 5 Stat. 34, altering the western boundary of Mis- souri, was not to add territory to the state but to substitute the Missouri river as an ideal line. Missouri v. Kansas, 213 U. S. 78, 53 L. Ed. 706, 29 S. Ct. 417. It follows from what has been said that an island in the Missouri river west of the centre of its main channel, as the channel exists at present, belongs to Kansas, al- though it is east of the original boundary line of Missouri. Missouri v. Kansas, 213 U. S. 78, 53 L. Ed. 706. 29 S. Ct. 417. Maryland and West Virginia. — The south bank of the Potomac river at low- water mark on the West Virginia shore is the true southern boundary line of the state of Maryland. Maryland v. West Vir- ginia, 217 U. S. 577, 54 L. Ed. 888, 30 S. Ct. 630. The boundary line between the states of Maryland and West Virginia from the head waters of the Potomac to the Penn- sylvania line is adjudged to be the "beakins"' or "old state" line, run in or about the year 1788, which ever since has been recognized as the boundary, and has served as such, although steps have been taken from time to time, looking towards a more effectual legal settlement and de- 207 495-497 BOUXDARIBS. Vol. III. E. Waters and Watercourses as Boundaries— 1. Rivers as Boundaries BETWEEN States — a. In General. — See note 74. There is no fixed rule making the center of a channel of a river the boundary between the two states border- ing on that river."'*'^ "Middle Channel." — The middle of the main channel of the river is what is meant by the words "the middle channel of said river," in the act admitting Oregon into the Union, with the Columbia River as its northern boundary.'-*'' "Widest Channel." — The widest expanse of water which can reasonably be called a channel is what is meant by the words "widest channel."'^'' 3. Shifting oe Shore or Channel. — See note 80. Where the boundary is limitation of the boundary, none of which have been efifectual or such as to disturb the continuous possession of the people claiming rights up to the boundary line. Maryland v. West Virginia, 217 U. S. 1, 54 L. Ed. 645, 30 S. Ct. 268. The state of West Virginia is not, as against the state of Maryland, entitled to the Potomac river to the north bank thereof. Her title runs only to high-water mark on the West Virginia shore. Mary- land V. West Virginia, 217 U. S. 1. 54 L. Ed. 645, 30 S. Ct. 268. Mississippi and Louisiana. — Leech v. Louisiana. 214 U. S. 175, 53 L. Ed. 956, 29 S. Ct. 552. New York and New Jersey. — Central R. Co. V. Jersey City, 209 U. S. 473, 52 L. Ed. 896, 28 S. Ct. 592. Oregon and Washington. — Nielsen i'. Oregon, 212 U. S. 315, 53 L. Ed. 528, 29 S. Ct. 383. 495-74. Middle channel — River as bound- ary. — Evidence which goes no further than to raise a doubt as to whether the main channel of the Mississippi river has not at different times varied from one side of Island No. 76 to the other will not sup- port a finding that this channel ran to the west of the island when Mississippi was admitted to the Union, and was therefore a part of that state, where such finding is opposed by testimony from memorj'' and tradition, by the presumption from the establishment of the channel on the east side for a time running back nearly or quite to the admission of Arkansas, and by consensus of action on the part of the two states concerned and the United States. Decree, Moore & McFerrin v. McGuire (C. C. 1906) 142. F. 787, reversed. Moore V. McGuire, 205 U. S. 214, 51 L. Ed. 776. 27 S. Cl. 483. 495-74a. No fixed rule. — Washington v. Oregon, 211 U. S. 127, 53 L. Ed. 118. 29 S. Ct. 47. Thus, the grant of Virginia, of all right, title and claim which the said common- wealth had to the territory northwest of the Ohio river, was held to place the boundary on the northern bank of that river. Washington v. Oregon, 211 U. S. 127, 53 L. Ed. 118, 29 S. Ct. 47, citing Handly v. Anthony, 5 Wheat. 374, 5 L. Ed. 113. See, also, Howard i\ Ingersoll, 13 How. 380, 14 L. Ed. 189. And when congress provided for the ad- mission of the state of Oregon it estab- lished as the boundary between Oregon and Washington the middle of the north channel of the Columbia river, and that remains the boundary, although some other channel may in the course of time become so far superior as to be practically the only channel for navigable purposes. Washington v. Oregon, 211 U. S. 127, 53 L. Ed. 118. 29 S. Ct. 47. The middle of the north ship channel of the Columbia river, described as the boundary between Oregon and Washing- ton in Act Feb. 14. 1859. c. 33, 11 Stat. 383, admitting Oregon into the Union, remains the boundary, subject to the changes in it which come by accretion, and is not moved to the other channel because the latter, in the course of years, becomes the more important and is properly called the main channel of the river. Washington v. Ore- gon, 211 U. S. 127, 53 L. Ed. 118, 29 S. Ct. 47. The middle of the north ship channel remains the boimdary, subject to changes by accretion, and is not moved to the other channel because the latter, in the course of years, becomes the more important, and is properly called the main channel. Washington v. Oregon, 214 U. S. 205, 53 L. Ed. 969, 29 S. Ct. 631. 495-74b. "Middle channel." — Washing- ton V. Oregon, 214 U. S. 205, 53 L- Ed. 969, 29 S. Ct. 631. Desdemona Sands and Snag Island are within the territorial limits of the state of Oregon; its northern boundary lieing de- scribed as a point due west and opposite the middle of the north ship channel of the Columbia river, thence easterly to and up the middle channel of said river, and, where it is divided by islands, up the mid- dle of the widest channel. Washington V. Oregon, 214 U. S. 205, 53 L. Ed. 969, 29 S. Ct. 631. 495-74C. "Widest channel."— Washing- ton V. Oregon. 214 U. S. 205, 53 L- Ed. 969, 29 S. Ct. 631. 497-80. Shifting on shore or channel.— The western boundary line of Missouri. extended by .\ct Cong. June 7, 1836, c. 86, 208 Vol. III. BOUNDARIES. 497-500 properly established in the center of a particular channel, it so remains, subject to changes by accretion, notwithstanding another channel may become more important and be regarded as the main channel of the river.^^^ F. Construction of Description. — A law altering the boundary of a state should be construed in the light of the extrinsic facts.^^a G. Establishment of Territorial Boundaries — 1. By the States a. Power to Settle — Compact — Convention — (1) In General. — The word "juris- diction" in most all cases of compacts between states has a more limited sense than "sovereignty."^"^^ b. Recognition and Acquiescence. — See note 97. 5 Stat. 34, to the Missouri river, remains the center of that stream, even if, by erosion, the result may be to take from Missouri territory which lies east of the original boundary, defined as a meridian line running due north from the mouth of the Kansas river. Missouri v. Kansas, 213 U. S. 78, 53 L. Ed. 706, 29 S. Ct. 417. 497-80a. Subsequent importance of other channels. — See Washington z\ Oregon, 211 U. S. 127, 53 L. Ed. 118, 29 S. Ct. 47. "So whatever changes have come in the north channel, and although the volume of water and the depth of that channel have been constantly diminishing, yet, as all resulted from processes of accretion, or, perhaps, also of late years from the jetties constructed by congress at the mouth of the river, the boundary is still that channel, the precise line of separa- tion being the varying center of that chan- nel." Washington v. Oregon, 214 U. S- 205, 215, 53 L. Ed. 969, 29 S. Ct. 631, cit- ing Jeflferis v. East Omaha Land Co., 134 U. S. 178, 33 X. Ed. 872, 10 S. Ct. 518; Nebraska z'. Iowa, 143 U. S. 359, 36 L. Ed. 186; Iowa r. Illinois, 147 U. S. 1. 37 L. Ed. 55; Missouri v. Nebraska, 196 U. S. 23, 49 L. Ed. 372; Louisiana v. Mississippi. 202 U. S. 1, 50 L. Ed. 913. 4d7-83a. Construction of law. — The act of June 7, 1836, c. 86, 5 Stat. 34, altering the western boundar}^ of ^Missouri, is to be construed in the light of extrinsic facts. Missouri r. Kansas, 213 U. S. 78, 53 L. Ed. 706. 29 S. Ct. 417. 498-87a. "Jurisdiction."— Central R. Co. V. Jersey City, 209 U. S. 473. 52 L. Ed. 896. 28 S. Ct. 592. See post, STATES. The provision in a compact that a state shall retain its "present" jurisdiction over them, would seem on its face simply to be intended to preserve the status quo ante, whatever it may be. Central R. Co. V. Jersey City. 209 U. S. 473. 479. 52 L. Ed. 896. 28 S. Ct. 592. See post. TREA- TIES. "The word jurisdiction has occurred in other cases where a river was a l^oundary, and in the Virginia Compact was held to mean, primarily at least, jurisdictio, au- thority to apply the law to the acts of men." Central R. Co. v. Jersey City, 209 U. S. 473. 479. 52 L. Ed. 896. 28 S. Ct. 592, citing Wedding v. Meyler, 192 U. S. 573, 584, 48 L. Ed. 570. See ante, "In Gen- eral," III, A. 500-97. Recognition and acquiescence.— Length of time that raises a right by pre- scription in private parties, likewise raises such a presumption in favor of states. Maryland v. West Virginia, 217 U. S. 577, 54 L. Ed. 888, 30 S. Ct. 630. "Independently of any effect due to the compact as such, a boundary line between states or provinces, as between private persons, which has been run out, located and marked upon the earth, and after- wards recognized and acquiesced in by the parties for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant; and the line so established takes effect, not as an alienation of territory, but as a definition of the true and ancient boundary." Marj-- land V. West Virginia, 217 U. S. 1, 42, 54 L. Ed. 645, 30 S. Ct. 268. citing Lord Hard- wicke in Penn. v. Lord Baltimore, 1 Vesey Sen. 444, 448; Boyd v. Graves, 4 Wheat. 513, 4 L. Ed. 628; Rhode Island z: :\Iassa- chusetts, 12 Pet. 657, 754, 9 L. Ed. 1233: United States v. Stone, 2 Wall. 525, 537. 17 L. Ed. 765; Kellogg z\ Smith, 7 Cush. 375, 382; Chenery z: Waltham. 8 Cush. 327; Hunt on Boundaries (3d Ed.), 396. See post, ESTOPPEL; PRESCRIPTION. A meridian boundary line, though as- tronomically incorrect, should be main- tained after it has been recognized for man}^ j'ears and become the basis for property rights. ]\Iaryland v. West Vir- ginia, 217 U. S. 1, 54 L. Ed. 645, 30 S. Ct. 268. "In this case we think a right, in its na- ture prescriptive, has arisen, practically undisturbed for many years, not to be overthrown without doing violence to principles of established right and justice equally binding upon states and individ- uals." Maryland 7'. West Virginia, 217 U. S. 1. 44. 54 L. Ed. 645, 30 S. Ct. 268. Sec. also, Rhode Island r. Massachusetts, 12 Pet. 657. 9 L. Ed. 1233. In Louisiana z: Mississippi, 202 U. S. 1. 53, 50 L. Ed. 913, the federal supreme court said: "The question is one of boundary, and this court has many times 12 U S Enc— 14 209 502-513 BREACH OF CONTRACT. Vol. III. 2. By Judicial Proceedings — b. Mode of Proceedings — (2) Commission of Boundary — (b) Commissioners to Retrace, Remark and Re-Estcthlish. — See note 4. g. Costs. — Where both parties are ahke interested in a boundary case, the costs are equally divided between them.^*^^ BOUNTIES. — See the title Bounties, vol. 3, p. 508, and references there given. BOXING AND CUTTING TIMBER.— See post. Trees and Timber. BOYCOTT. — See post, Conspiracy; Injunctions; Monopolies and Cor- porate Trusts; Restraint of Trade. BRAIDS.— See note a. BRAKEMAN.— See post. Fellow Servants. BRANCH ROAD.— See post, Public Lands. BRANDING. — See post, Foods and Drugs. BREACH OF CONTRACT.— See post, Contracts; Damages; Sales; Vendor and Purchaser; Water Companies and Waterworks. held that, as between the states of the union, long acquiescence in the assertion of a particular boundary and the exercise of dominion and sovereignty over the territory within it should be accepted as conclusive, whatever the international rule might be in respect of the acquisition by prescription of large tracts of country claimed by both." Maryland i'. West Virginia, 217 U. S. 1, 43, 54 L. Ed. 645, 30 S. Ct. 268. "As said by this court in tlie recent case of Indiana v. Kentucky, 136 U. S. 479, 510. 34 L. Ed. 329, 'it is a principle of public law, universally recognized, that long acquiescence in the possession of territory, and in the exercise of dominion and sovereignty over it, is conclusive of the nation's title and rightful authority.' In the case of Rhode Island v. Massa- chusetts, 4 How. 590, 639, 11 L. Ed. 1116. this court, speaking of the long posses- sion of Massachusetts, and the delays in alleging any mistake in the action of the commissioners of the colonies, said: 'Surely this, connected with the lapse of time, must remove all doubts as to the right of the respondent under the agree- ments of 1711 and 1718.'" Maryland ?'. West Virginia, 217 XJ. S. 1, 42, 54 L. Ed. 645, 30 S. Ct. 268. 502-4. Retracing, remarking, etc. — The decree should provide for the appointment of commissioners to run and permanentlj^ mark, as the boundary line between Maryland and West Virginia, the old Deakins line, beginning at a point where Ihe north and south line from the Fairfax Stone crosses the Potomac river and run- ning thence northerly along said line to the Pennsylvania border. Maryland v. West Virginia, 217 U. S. 1, 2, 54" L. Ed. 645, 30 S. Ct. 268. 505-16a. Costs. — Washington v. Oregon, 211 U. S. 127, 53 L. Ed. 118, 29 S. Ct. 47. The cost of the surveys made by the surveyors of the respective states in a boundary dispute, pursuant to an order entered by the consent of both parties, should be equally divided between those states. Maryland v. West Virginia, 217 U. S. 577, 54 L. Ed. 888, 30 S. Ct. 630. ' In making an order for the division of costs between states in a boundary dis- pute the matter involved is one govern- mental in character in which each party has but a real and yet not a litigous in- terest. The object to be obtained is the promotion of the peace and good of the communities, and all expenses should be borne in common and included in the costs equally divided between the states. Maryland v. West Virginia, 217 U. S. 577, 54 L. Ed. 888, 30 S. Ct. 630, citing Nebraska v. Iowa, 143 U. S. 359, 370, 38 L. Ed. 186. 513-a. Classification of braids in the revenue acts. — Xarrow woven cotton strips bearing "featherstitch" or "herringbone" ornamentation, used largely for binding seams, but commercially known as feather- stitch braids at and prior to the enactment of the Tariff Act of July 24, 1897, which shifted braids from the lower duty of the notion schedule to the higher duty of the trimmings schedule, without any change of phraseology to indicate that it was the purpose to depart from the commercial meaning of the word braids, must be deemed dutable under the trimmings schedule, as cotton braids and not under the notions schedule, as bindings or as tapes, especially in view of the settled ad- ministrative construction to that cfifect. United States v. Barucb, 223 U. S. 191. 56 L. Ed. 399, 32 S. Ct. 306. See post, REVENUE LAWS. 210 Vol. III. BRIDGES. 523-528 BREACH OF THE PEACE.— As to the terms "treason, felony, and breach of the peace," as used in the constitutional provision exempting senators and representatives from arrest, see post. Privilege:. BRIBERY. — See the title Bribery, vol. 3, p. 514, and references there given. BRIDGES. II. Erection, Maintenance and Repair, 211. r>. Duty to Construct and Repair, 211. III. Control, Regulation, Alteration and Removal, 211. B. Authority to Require Alteration or Removal, 211. 3. Power of the Secretary of War, 211. V. Injunction to Restrain, and Liability for, Injuries to Bridges, 211. CROSS REFERENCES. See the title Bridges, vol. 3, p. 517, and references there given. In addition, see ante, Admiraty, p. 10. II. Erection, Maintenance and Repair. B. Duty to Construct and Repair. — The expense of constructing a railway bridge over a highway, made necessary by the action of the mu- nicipality in opening such highway through the railway company's embankment, may be cast upon the railway company without denying the due process of law guaranteed by the federal constitution, which recjuires that compensation be made when private property is taken for public use.-^""" III. Control, Regulation, Alteration and Removal. B. Authority to Require Alteration or Removal — 3. Power oe the Secretary oe War. — See note 56. V. Injunction to Restrain, and Liability for, Injuries to Bridges. Redress can not be afforded in admiralty for injuries inflicted by a colliding vessel upon a bridge over a navigable stream."'"^ 523-37a. Expense of constructing rail- NAVIGABLE WATERS. way bridge over highway. — Cincinnati, A notice to a bridge company to make etc., R. Co. V. Connersville, 218 U. S. 336. certain alterations in a bridge over an in- 54 L. Ed. 1060, 31 S. Ct. 93. See post. terstate water way, conformably to the DUE PROCESS OF LAW. Act of March 3, 1899 (30 Stat, at L. 1121, 525-56. Special act subject to provisions chap. 425), § 18, enacted to secure naviga- of River and Harbor Act. — A bridge over tion against unreasonable obstructions, is the Mississippi river, constructed under not insufficient as the basis of a criminal the authority of the special act of con- prosecution in case of noncompliance be- gress of July 25, 1866 (14 Stat, at L. 244, cause it bears the signature of the as- chap. 246), which expressly reserves the sistant secretary of war, instead of the right of alteration or amendment so as secretary himself, who is the official named to prevent or remove all material obstruc- in the statute as the one to give such no- tions to navigation by the construction of tice, -where the communication shows bridges, is subject to the provisions of upon its face that it was from the war the River and Harbor Act of March 3, department, and from the secretary of vvar, 1899. § 18, empowering the secretary of and that the latter, without abrogating war, when satisfied, after a hearing of the bis authority under the statute, only used parties interested, that a bridge over a the hand of the assistant secretary in or- navigable water way of the United States der to give the owners of the bridge no- is an unreasonable obstruction to naviga- tice of what was required of them, tion, to require such changes or altera- Hannibal Bridge Co. v. United States. 221 tions as will render navigation reasonably U. S. 194, 55 L. Ed. 699, 31 S. Ct. 003. free, easy, and unobstructed. Hannibal 528-79a. Injuries by vessel to bridge Bridge Co. v. United States, 221 U. S. 194. over navigable stream— No redress m ad- 55 L. Ed. 699, 31 S. Ct. 603. See post. miralty.— Cleveland, etc., R. Co. v. Clevo- 211 530-533 BROKERS. \'ol. III. BRIEFS. — See ante, Appeal and Error, p. 34. BRINGING.— See note a. BROKERS. II. Nature of Business, 212. IV. Compensation and Reimbursement, 213. A. Right to Compensation for Services and Reimbursement for Advances, 213. 2. Necessity for Completion of Transaction, 213. a. General Rule, 213. b. Where Principal Refuses to Fulfill Agreement. 213. CROSS REFERENCES. See the title Brokers, vol. 3, p. 531, and references there given. II. Nature of Business. A stockbroker is not the owner of the shares of stock which he purchases and carries for his customers on margin, but is essentially, if not strictly, as' understood at common law, a pledgee.^^ land Steamship Co., 208 U. S. 316, 52 L. Ed. 508, 28 S. Ct. 414; The Troy, 208 U. S. 321, 52 L. Ed. 512, 28 S. Ct. 416. See ante, ADMIRALTY, p. in. 530-a. Bringing aliens to the United States. — Section 18 of the Immigration Act of March 3, 1903, makes it the duty of any officer in charge of any vessel bringing an alien to the United States to adopt due precaution to prevent the landing of such alien at any time or place other than that designated by the immigration officers, punishing him if he lands or permits to land any alien at any other time or place. "Bringing to the United States," taken literally and nicely, means, as a similar phrase in § 8 plainly means, transporting with intent to leave in the United States, and for the sake of transport — not trans- porting with the intent carry back, and merely as incident to employment on the instrument of transport. The ordinary case of a sailor deserting while on shore leave is not comprehended by the pro- visions of the act. notwithstanding the omission from this section of the word "immigrant" which had followed the word "alien" in the earlier case. Taylor f. United States, 207 U. S. 120, 52 L. Ed. 130. 28 S. Ct. 53. 533-4a. Stockbroker purchasing and carrying for customers on margiji. — Rich- ardson c'. Shaw. 209 U. S. 365, 52 L. Ed. 835, 28 S. Ct. 512, affirming 147 Fed. 659, 77 C. C. A. 643. "There has been much discussion upon this subject in the courts of the union. The leading case, and one most frequentl}^ cited and followed, is ]\Iarkham v. Jaudon. 41 N. Y. 235, a case which was argued by eminent counsel and held over a term for consideration. The opinion in the case is by Chief Judge Hunt, afterwards Mr. Jus- tice Hunt of this court. He summarized the conclusions of the court as follows; 'The broker undertakes and agrees: 1. At once to buj" for the customer the stocks indicated. 2. To advance all the money required for the purchase beyond the ten per cent furnished by the cus- tomer. 3. To carry or hold such stocks for the benefit of the customer so long as the margin of ten per cent is kept good, or until notice is given by either party that the transaction must be closed. An appreciation in the value of the stocks is the gain of the customer and not of the broker. 4. At all times to have in his name and under his control ready for de- livery the shares purchased, or an equal amount of other shares of the same stock. 5. To deliver such shares to the customer when required by him, upon the receipt of the advances and commissions accru- ing to the broker. 6. To sell such shares, upon the order of the customer, upon pay- ment of the like sums to him. and account to the customer for the proceeds of such sale. Under this contract the customer undertakes: 1. To pay a margin of ten per cent on the current market value of the shares. 2. To keep good such margin jiccording to the fluctuations of the mar- ket. 3. To take the shares so purchased on his order whenever required by the broker, and to pa};- the diflference between the percentage advanced by him and the amount paid therefor by the broker. The position of the broker is twofold. Upon the order of the customer he purchases shares of stocks desired by him. This is a clear act of agency. To complete the purchase he advances from his own funds. for the benefit of the purchaser, ninety 212 Vol. III. BROKERS. 534 IV. Compensation and Reimbursement. A. Right to Compensation for Services and Reimbursement for Ad- vances — 2. Necessity for Completion of Traxsactiox — a. General Rule. — See note 8. A binding agreement between the vendor and purchaser is not, however, necessary, before a broker's commission can be earned, under an agreement by which such broker was employed to find a purchaser. ^^ b. Where Principal Refuses to Fulfill Agreement. — The inability of the pros- pective purchaser to complete the purchase is not available as an afterthought to defeat the right of the broker employed to find a purchaser to recover his agreed commissions, where the sale failed wholly through the fault of the owner, who made no objection to the purchaser. ^"^ Where the broker, relying per cent of the purchase money. Quite hs clearly he does not in this act as an agent, but assumes a new position. He also holds or carries the stock for the benefit of the purchaser until a sale is made by the order of the purchaser or upon his own action. In thus holding or carrying he stands also upon a different ground from that of a broker or agent whose office is simply to buy and sell. To advance money for the purchase, and to hold and carry stocks, is not the act of the broker as such. In so doing he en- ters upon a new duty, obtains other rights, and is subject to additional responsibili- ties * * *. In my judgment the contract between the parties to this action was in spirit and efifect, if not technically and in form, a contract of pledge.' The case has been approved in other cases in New York, some of which are: Stewart z'. Drake, 46 N. Y. 449: Stenton r. Jerome. 54 N. Y. 480; Baker z,; Drake, 66 N. Y. 518; Gru- man v. Smith, 81 N. Y. 25; Gillet v. Whit- ing, 120 N. Y. 402; Content v. Banner, 184 N. Y. 121; Douglas t'. Carpenter, 17 App. Div. 329. And approved in other States: Cashman v. Root. 89 California 373; Brewster t'. Van Liew. 119 Illinois 554; Gilpin V. Howell, 5 Pa. St. 41; Wynkoop z'. Seal. 64 Pa. St. 361; Esser v. Linder- man. 71 Pa. St. 76. The subject was fully considered in a case which leaves nothing to be added to the discussion. Skiff z\ Stoddard, 63 Connecticut, 198, in which the conclusions in Markham z'. Jaudon were adopted and approved. These views have been very generally accepted as settled law by the text writers on the subiect. 1 Dos Passos on Stockbrokers (2d Ed.), 179-200; Jones on Pledges, § 496; Mechem on Agency. § 936. Mr. Jones, in his work on pledges, summarizes the law as fol- lows: "The broker acts in a threefold re- lation: First, in purchasing the stock, he is an agent; then in advancing money for the purchase he becomes a creditor, and finally, in holding the stock to secure the advance made, he becomes a pledge of it. It does not matter that the actual pos- session of the stock was never in the cus- tomer. The form of the delivery of the stock to the customer, and a redelivery by him to the broker, would have constituted a strict, fonnal pledge. But this delivery and redelivery would leave the parties in precisely the saine situation they are in when, waiving this formality, the broker retains the certificate as security for ad- vances.'" Richardson z\ Shaw, 209 U. S. 365, 374, 52 L. Ed. 835, 28 S. Ct. 512. "In Dos Passos on Stockbrokers, at page 114. the author says: 'Upon the whole, while it must be conceded that there are incongruous features in the relation, there seems to be no hardship in holding that a stockbroker is a pledgee; for al- though it is true that he may advance all or the greater part of the money em- braced in the speculation, if he acts hon- estly, faithfully and prudently, the entire risk is upon the client * * *. To introduce a different rule would give opportunities for sharp practices and frauds, which the law should not invite.' " Ricl^ardson z'. Shaw\ 209 U. S. 365. 376, 52 L. Ed. 835, 28 S. Ct. 512. 534-8. Instruction held to presuppose agreement between vendor and purchaser as to terms. — A finding that the owner and purchaser had agreed upon terms is pre- supposed, in an instruction authorizing the recovery of agreed commissions by a broker employed to find a purchaser for the whole, or any considerable part, of a tract of coal lands, who had found a pur- chaser able, ready, and willing to purchase 10.000 acres of the said lands at the stipu- lated price, where the sale failed because of the inaccuracy of the owner's repre- sentations to the brokeV that a railway company had consented or agreed to con- struct a branch railroad into such lands. Tudgment, 27 App. D. C. 500, affirmed. Dotson z: Milliken. 209 U. S. 237, 52 L. Ed. 768. 28 S. Ct. 489. 534-8a. Binding agreement between vendor and purchaser not essential. — Dot- son z: Milliken, 200 U. S. 237, 52 L. Ed. 768, 28 S. Ct. 480. affirming 27 .App. D. C. 500. 534-lOa. Inability of prospective pur- chaser, etc. — Dotson z'. Milliken. 209 U. S. 237, 52 L. Ed. 768, 28 S. Ct. 480, affirm- ing 27 App. D. C. 500. 213 534-553 CAPITAL— CAPITAL STOCK. Vol. III. upon the representations of the owner of property, with regard to such prop- erty, finds a purchaser, and the purchase fails because of the inaccuracy of such representation, the broker is entitled to his agreed commissions. i'"' BROUGHT.— See note 2. BUILDING AND LOAN ASSOCIATIONS.— See the title Building and Lo.\N Associations, vol. 3. p. 542, and references there given. BUILDING CONTRACTS.— See post. Workinc CoNTrxACTS. BUILDING RESTRICTIONS AND RESTRICTIVE AGREEMENTS.— See Building Rlstrictions and Restrictive; Agreements, vol. 3, p. 543, and ref- erences there given. And see post. Constitutional Law ; Due Process of Law ; Police Power. BURDEN OF PROOF. — See post. Presumptions and Burden of Proof. And see the particular titles throughout this supplement. BUSINESS. — Business is a very comprehensive term and embraces everything about which a person can be employed — that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.-'^ CALCULATED.— See note 7a. CALLS. — See ante. Boundaries, p. 206. CANALS. — See the title Canals, vol. 3, p. 546, and references there given. CANCELLATION. — See post. Rescission, Cancellation and Reformation. CAPITAL— CAPITAL STOCK.— See note 2a. 534-lOb. Where purchase fails on ac- count of inaccuracy of owner's represen- tations.— Dotson r. Milliken, 209 U. S. 2.37, 52 L. Ed. 768, 28 S. Ct. 489, affirming 27 App. D. C. 500. A broker employed to find a purchaser for the whole, or any considerable part, of a tract of coal land, is entitled to his agreed commission, where he finds a pur- chaser for 10,000 acres, and the sale fails because of the inaccuracy of the owner's representations to the broker that a rail- way company had consented or agreed to construct a branch railroad into such lands. Judgment, 27 App. D. C. 500, af- firmed. Dotson V. Milliken, 209' U. S. 237, 52 L. Ed. 768, 28 S. Ct. 489. The failure of the prospective purchaser of coal lands to rely upon the owner's representations to the broker employed to find a purchaser that a railway company had consented or agreed to construct a branch railroad into such lands does not defeat the broker's right to his agreed commissions, where, relying upon such representations, he finds a purchaser, and the sale fails because of their inaccuracy. Judgment, 27 App. D. C. 500, affirmed. Dotson v. Milliken, 209 U. S. 237, 52 L. Ed. 768, 28 S. Ct. 489. 541-2. A writ of error. — Old Nick Wil- liams Co. 7'. United States, 215 U. S. 541, 54 L. Ed. 318, 30 S. Ct. 221. 544-3a. Business. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. See post, DOING BUSINESS. See, also, post, FOREIGN CORPORATIONS. 544-7a. Reasonably calculated to fix prices. — In referring the Texas Antitrust Act of 1899, denouncing contracts and ar- rangements "reasonably calculated" to fix and regulate the prices of commodities, etc., the court said: "as to the phrase, 'rea- sonai)ly calculated,' what does it include less than acts, which, when fairly consid- ered, tend to accomplish the prohibited thing, or which make it highly probable that the given result will be accom- plished?" The act was not unconstitu- tional on the grounds that it was vague, indefinite and uncertain. Waters-Pierce Oil Co. V, Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. See post, MO- NOPOLIES AND CORPORATE TRUSTS. 553-2a. Capital stock and shares distin- guished. — "There is an obvious distinction between the capital stock of an incorpo- rated company and the 'shares' of the company. The one is the capital upon which the business is to be undertaken, and is represented by the property of every kind acquired by the company. Shares are the mere certificates which represent a subscriber's contribution to the capital stock and measure his interest in the company." Wright t'. Georgia R., etc., Co., 216 U. S. 420. 54 L. Ed. 544. 30 S. Ct. 242. See post, CORPORATIONS, STOCK AND STOCKHOLDERS. Capital embraced in the term stock. — "The word 'stock' is not uniformly used to designate the capital of a corporation, although its primary meaning is capital, in whatever form it may be invested. In- deed, it is not at all unusual to find the word used synonymously with 'shares,' and meaning the certificates issued to sub- scribers to the company's stock." Wright 214 Vol. III. C'ARRIED OUT 554-555 CAPITAL CRIME.— See note 3a. CAPTURE.— See post. Prize. CARBONATE OF LEAD.— See note la. CARRIED OUT.— See note 2a. V. Georgia R.. etc.. Co.. 216 U. S. 420. 54 L. Ed. 544, 30 S. Ct. 242. Capital, in whatever form invested, ap- propriate to the purpose of the company, and not merely the shares held by stock- holders, must be regarded as meant by the W':^rd "stock," as used in a provision of a railway charter that the stock of the company and its branches shall be ex- empt from taxation for seven years, and after that shall be subject to a tax not exceeding a given per cent upon the net proceeds of their investments, in view of the recognition in other provisions of the charter of the distinction between capital stock and "shares," and of at least six*-y j'ears' legislative and executive ac- quiescence in reading this partial exemp- tion as applicable to the capital stock of the company, and of a series of decisions of the highest state court, holding either that the whole of the capital, was exempt, in whatever form invested, or so much of the investment as corresponded in value to the authorized capital stock- Wright V. Georgia R., etc., Co.. 216 U. S. 420. 54 L. Ed. 544, 30 S. Ct. 242. See post. TAXATION. 554-3a. Conviction of capital crime. — The conviction in a federal district court of murder in the second degree, punish- able only by imprisonment, is not a "con- viction of capital crime," within the meaning of § 5 of the Act of March 3, 1891, as amended by the Act of January 20, 1897, allowing a writ of error directly from the supreme court to the district court of the United States in case of "con- viction of a capital crime." This is true although the accused could have been convicted under the indictment of a capital offense. The jurisdiction of the supreme court, in this regard, does not depend upon the crime charged in the indictment. Rakes v. United States, 212 U. S. 55, 5:; L. Ed. 401, 29 S. Ct. 244. See ante, AP- PEAL AND ERROR, p. 34; post. COURTS; CRniTNAL LAW. 555-la. Pure carbonate of lead. — In the Act of North Dakota, of January 1, 1906 requiring the manufactures of mixed paints to label the ingredients composing them, the enumeration of "pure carbonate of lead" may be corrected into commer- cial carbonate by a perfectly allowable exercise of construction. Heath, etc.. Mfg. Co. V. Worst, 207 U. S. 338, 358, 52 L. Ed. 230. 28 S. Ct. 114. See post. POLICE POWER. 555-2a. Carried out used in sense of performance. — See Parish v. MacVeagh, 214 U. S. 124, 136, 53 L. Ed. 936. 29 S. Ct. 556. 215 CARRIERS.^ Vol. Ill CARRIERS. I. Definitions and General Considerations, 217. A. Who Are Common Carriers, 217. 7. Duty to Engage in Business, 217. II. Carriers of Passengers, 217. E. Tickets and Fares, 217. 2. Conditions in Ticket, 217. d. Transferability, 217. 4. Purchase and Sale of Nontransferable Tickets — Ticket Scalpers, 218. G. Duty as to Passenger Alighting from Train. 219. H. Duties and Rights as to Stations and Terminals, 219. 1. Duty to Provide Safe Station, 219. L. Contributory Negligence of Passenger, 219. 14. In General, 219. III. Carriers of Goods, 219. A. Duty to Receive and Carrv, 219. 1. In General, 219. E. Duties and Liabilities in Course of Transportation, 220. 1. In General, 220. 2. Care Required of Carrier, 220. •a. General Rule — Liability That of Insurer, 220. b. Circumstances Exempting Carrier from Liability as Insurer, 220. (6) Duty to Resist Judicial Process, 220. 6. Loss by Deviation, 220. 8. Delay in Transportation, 221. 10. Stoppage in Transit for Inspection or Reconsignment, 221. F. Delivery by Carrier, 221. 1. Necessity for Delivery, 221. H. Connecting Carriers, 221. 1. Liability of Initial Carrier, 221. a. Loss or Damage on Its Own Line, 221. b. Duty to Deliver to or Notify Connecting Carrier, 221. (\) In General, 221. c. Liability for Loss or Damage on Route of Connecting Carrier, 221. (1) In Absence of Contract, 221. (2) Under Contract for Through Carriage, 221. (a) Power to Make Contract, 221. aa. Power of Railroad Corporation, 221. (aa) In General, 221. (3) Under Statutes, 222. I. Freight and Charges of Carrier, 223. 2. Liability of Connecting Carrier, 223. 7. Recovery Back of Freight Charges Improperly Collected, 223. 8. Compensation for Stoppage in Transit for Inspection, etc., 223. IV. Carriers of Live Stock, 223. A. Duties and Liabilities in General, 223. 216 Vol. III. CARRIERS. 565-571 C. Duty to Unload. Feed, Water and Rest Stock, 223. F. Damages for Injuries in Course of Transportation, 224. V. Regulation of Carriers, 224. A. Regulation by State, 224. 1. Amount of Charges, 224. a. Power of State, 224. (1) Nature and Extent of Power, 224. (a) In General, 224. b. Alode of Regulation, 224. (2) By Railroad Commission, 224. (a) In General, 224. c. Reasonableness and Validity of Regulation, 225. (2) Mode of Determining Reasonableness, 225. (a) Carrier Entitled to Fair Return on Investment, 225. aa. In General, 225. (1) Reasonableness a Judioial Question, 225. aa. In General, 225. (3) Authority and Power of Railroad Commission, 225. f. Relief against Enforcement of Rates Fixed by Legislature or Commission, 225. (1) Right to and Mode of Obtaining Relief. 225. (a) Relief to Carrier, 225. bb. Rates Fixed by Railroad Commission, 225. (2) Jurisdiction, 226. 2. Discrimination in Charges or Facilities, 226. b. Discrimination in Favor of One of Several Connecting Car- riers, 226. (2) Providing Stations and Interchanging Freight, 226. (3) Requiring Delivery and Receipt of Cars between Con- necting Carrier, 226. e. Requiring Connection between Trains or Roads, 227. B. Regulation by United States, 227. CROSS REFERENCES. See the title Carriers, vol. 3, p. 556, and references there given. I. Definitions and General Considerations. A. Who Are Common Carriers — 7. Duty to Engage in Business. — Xo one can be compelled to engage in the business of a common carrier, but if he does so, he becomes subject to the duties imposed on common carriers.^^ II. Carriers of Passengers. E. Tickets and Fares — 2. Coxditioxs in Ticket — d. Transferability —\ common carrier has the right to sell nontransferable reduced rate excursion tickets.'"''^ The nontransferability and forfeiture embodied in such tickets^ is not only binding upon the original purchaser and any one subsequently acquiring them,3fb but, under the provisions of § 22 of the act to regulate commerce, 24 565-6a. Duty to engage in business. — St. Louis, etc.. R. Co., 127 U. S. 390, 32 Missouri Pac. R. Co. v. Larabee Flour L. Ed. 249. . Mills Co., 211 U. S. 612, 53 L. Ed. 352, 29 571-37b. Binding effect— On third per- S Ct. 214. sons. — Bitterman v. Louisville, etc., R. Co., 571-373. Transferability.— Bitterman v. 207 U. S. 205, 52 L. Ed. 171. 28 S. Ct. 91. Louisville, etc., R. Co., 207 U. S. 205. 52 A carrier may sell nontransferable L. Ed. 171, 28 S. Ct. 91, citing Mosher v. round-trip, reduced-rate excursion tickets. 217 571 CARRIERS. Vol. III. Stat. 387, 25 Stat. 862, it is the duty of the railroad company to prevent the wrongful use of such tickets and the obtaining of a preference thereby by any- one other than the original purchaser.-""'^ And it may well be questioned whether the purchaser of such ticket acquires anything more than a limited and qualified ownership thereof, and whether the carrier does not, for the purpose of enforc- ing the forfeiture, retain a subordinate interest in the ticket amounting to a right of property therein which a court of equity would protect.^'^'* 4. Purchase and Sale oe Nontranseerable Tickets — Ticket Scalpers. — An actionable wrong is committed by one who maliciously interferes in a con- tract between two parties and induces one of them to break that contract to the injury of the other. •'•'*^ This principle applies to carrying on the business of pur- chasing and selling nontransferable reduced rate railroad tickets for profit to the injury of the railroad company issuing them, and this even though the ingre- dient of actual malice, in the sense of personal ill-will, does not exist. •■^^'' Power of Equity to Grant Relief. — When the dealings of a class of spec- ulators in nontransferable tickets have assumed great magnitude, involving large cost and risk to the railroad company in preventing the wrongful use of such tickets, and the parties so dealing in them have expressly declared their intention of continuing so to do, a court of equity has power to grant relief by injunc- tion. •'^*'= No adequate remedy at law exists in such cases which will deprive the and the condition of nontransferability and forfeiture embodied therein is not only binding upon the original purchaser, but upon anyone who acquires such a ticket and attempts to use the same in violation of its terms. Judgment, Louisville & N. R. Co. V. Bitterman, 144 F. 34, 75 C. C. A. 192, af^rmed. Bitterman v. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 571-37C. Duty of carrier to prevent trans- fer and use. — The express recognition in the act to regulate commerce of the power of carriers engaged in interstate commerce to issue nontransferable reduced-rate ex- cursion tickets, when considered with the restrictions embodied in the act concern- ing equality of rates, and with the prohibi- tion against preferences, must be regarded as charging the carrier with the duty of exercising due diligence to prevent the use of such tickets by other than the original purchasers, and hence causes the nontransferable clause to be operative and effective against anyone who wrongfully attempts to use such tickets. Judgment, Louisville & N. R. Co. v. Bitterman (1906), 144 F. 34, 75 C. C. A. 192, affirmed. Bitter- man V. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 571-37d. Ownership — Interest of car- rier. — Bitterman v. Louisville, etc., R. Co., 207 U. S. 205, 222, 52 L. Ed. 171, 28 S. Ct. 91; Board v. Christie Grain, etc., Co., 198 U. S. 236, 49 L. Ed. 1031, and authorities there cited. See, also, Sperry & Hutchin- son Co. V. Mechanics' Clothing Co., 128 Fed. Rep. 800. 571-38a. An actionable wrong. — Bitter- man V. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91, citing Angle V. Chicago, etc., R. Co., 151 U; S. 1, 38 L. Ed. 55. As to power of United States court to discharge on habeas corpus a person ar- rested under the state law for illegally selling tickets, see post^ HABEAS COR- PUS. 571-38b. Action for sale of ticket. — Carrying on the business of purchasing and selling nontransferable reduced-rate excursion railroad tickets for profit, to the injury of the railroad company issuing such tickets, is an actionable wrong, al- though actual malice in the sense of per- sonal ill-will may not exist. Judgment, Louisville & N. R. Co. v. Bitterman (1906), 144 F. 34, 75 C. C. A. 192, affirmed. Bitterman v. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 571-38C. Power of equity to grant relief. — Bitterman c'. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. See post, INJUNCTIONS. Every injunction contemplates the en- forcement, as against the party enjoined, of a rule of conduct for the future as to the wrongs to which the injunction re- lates, and a court of equity may extend an injunction so as to restrain the defend- ants from dealing not only in nontrans- ferable tickets already issued by com- plainant, but also in all tickets of a similar nature which shall be issued in the future; and the issuing of such an injunction does not amount to an exercise of legislative, as distinct from judicial, power and a de- nial of due process of law. Bitterman v. Louisville, etc., R. Co.. 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 218 Vol. III. CARRIERS. 571-590 company of its right to resort to equity to restrain such wrong deahngs.-"''^'* G. Duty as to Passenger Alighting from Train. — See note 70. H. Duties and Rights as to Stations and Terminals — 1. Duty to Pro- vide Safe Station. — Where the plaintitl is not a trespasser, if he intends to become a passenger and has come to a place recognized by the practice of the defendant as a convenient and suitable one from which to enter the car, and the car stops to receive him, the defendant owes him an affirmative duty, and is liable for an injury to him which is the proximate result of the carrier's negli- gence.'^^ L. Contributory Negligence of Passenger — }/,. In General. — It is not clear that the plaintiff's negligence is necessarily the proximate cause of the in- jury, although he may have not been free from fault. If he carelessly placed himself in a position exposed to danger, and it is discovered by the defendant in time to avoid the injury by the use of reasonable care on its part, and the de- fendant fails to use such care, that failure may be found to be the sole cause of the resulting injury.^-^^ Such questions is one for the jury to decide. ^^^'^ Acting According to Custom. — A person is not, as a matter of law, guilty of such contributory negligence in following the customary practice sanctioned by a street car company of standing upon the platform between the two inner rails at a usual stopping place, awaiting an approaching car, as precludes a recovery for injuries sustained from being struck by a car which ran by this stopping place on the other track at full speed, where the space between the rails, though leav- ing but a narrow margin of safety, was wide enough to permit a person standing directly in the center to escape injury.^^"^ III. Carriers of Goods. A. Duty to Receive and Carry — 1. In Gener-vl. — Whenever one engages in the business of a common carrier, the obligation of equal service to all arises.^"^ Even in the absence of legislative enactment or special contract, a common car- rier is bound to treat all shippers alike and can be compelled to perform this common-law duty by mandamus or other proper writ.^-^'' 571-38d. No adequate remedy. — Bitter- persons can plainly be seen standing man i'. Louisville, etc., R. Co., 207 U. S. upon the platform between the inner rails, 205, 206, 52 L. Ed. 171, 28 S. Ct. 91. See awaiting a car approaching from the op- post. IXJUXCTIONS. posite direction, is a question for the jury, 577-70. Duty as to alighting passenger, where the street car company had sanc- — Atchison, etc., R. Co. z'. Calhoun, 213 U. tioned such a practice on the part of S. 1, 53 L. Ed. 671, 29 S. Ct. 321. intending passengers, and the space be- 577-72a. Duty to provide safe place for iween the rails, while wide enough to en- boarding cars. — Chunn f. City, etc.. Rail- able a person standing in the center to es- way, 207 U. S. 302, 307, 52 L. Ed. 219, 28 cape injury, left but a narrow margin of S. Ct. 63. See post, NEGLIGENCE. safety. Judgment (1904), 23 App. D. C. 579-83a. Contributory negligence in gen- 551, reversed. Chunn v. City, etc., Rail- eral.— Chunn v. City, etc.. Railway. 207 U. way. 207 U. S. 302, 52 L. Ed. 219, 28 S. S. 302, 309, 52 L. Ed. 219, 28 S. Ct. 63; Ct. 63. Inland, etc., Coasting Co. v. Tolson, 139 579-83c. Acting according to custom.— U. S. 551, 35 L. Ed. 270; Grand Trunk R. Chunn z\ City, etc., Railway, 207 U. S. Co. V. Ives, 144 U. S. 408, 429, 36 L. Ed. 302, 52 L- Ed. 219, 28 S. Ct. 63, reversing 485; Washington, etc., R. Co. v. Harmon, 23 App. D. C. 551. 147 U. S. 571, 583, 37 L. Ed. 284; Tuff z'. 590-55a. Duty to receive and carry for Warman, 5 C. B. N. S. 573; Radley t-. Lon- all alike.— Missouri Pac. R. Co. z: Larabee don & North Western Railway Co., 1 App. Flour Mills Co., 211 U. S. 612, 619, 53 L. Cas. 754; Thompson on . Negligence (2d Ed. 352, 29 S. Ct. 214. Ed.). §§ 238. 239; Pollock on Torts (6th 590-55b. Enforcement of duty.— Mis- Ed.), pp. 441 to 447 inclusive. See post. souri Pac. R. Co. z'. Larabee Flour Mdls NEGLIGENCE. Co., 211 U. S. 612, 53 L. Ed. 352, 29 S. 579-83b. Question for jury.— Whether it Ct. 214. is negligence to run a street car at full A common carrier may be compelled by speed past a usual stopping place when mandamus or other writ to treat all ship- 219 593-595 CARRIERS. Vol. III. E. Duties and Liabilities in Course of Transportation — 1. In General. — See post, "Delay in Transportation," III, E, 8. Liability of Connecting Carriers. — As to liability of initial carrier for loss or damages arising on line of intermediate or last carrier, see post, "Liability of Initial Carrier," III, H, 1. As to liability of intermediate or last carrier, see post, "Liability of Connecting Carrier," III, H, 2. 2. Care Required of Carrier — a. General Rule — Liability That of Insurer. — Tbe rule of the common law, which treated a common carrier as an insurer, grew out of a situation which required that kind of security for the protection of the public.'^^'^ b. Circumstances Bxempting Carrier from Liability as Insurer — (6) Duty to Resist Judicial Process. — The duty of the carrier to carry safely and to deliver promptly to the consignee the goods entrusted to it does not require it to resist forcibly judicial proceedings in the courts of the state into or through which the goods are carried. ^^'^ While the carrier may appear and contest the validity of a seizure under judicial process of goods in its custody, if it seasonably notify the owner and call upon him to defend, it is relieved from further responsibility; and, in absence of fraud or connivance on its part, it may plead the judgment rendered against it as a bar in an action brought by the owner.^^'' But if the carrier, through connivance or fraud, permits a judgment to be rendered against it, such judgment can not be invoked by it as a bar to an action brought by the owner of the goods. ^^° 6. Loss BY Deviation. — See note 88. Deviation in Case of Necessity. — The duty that may rest on a carrier under normal conditions to transport merchandise by a particular and the most ad- vantageous route is restrained and limited by the right of the carrier, in case of pers alike. Judgment, Larabee Flour Mills Co. V. Missouri Pac. Ry. Co., 88 P. 72, 74 Kan. 808, affirmed. Missouri Pac. R. Co. V. Larabee Flour Mills Co., 211 U. S. 612, 53 L. Ed. 3.52, 29 S. Ct. 214. 593-70a. Liability that of insurer. — At- lantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 208, 55 L Ed. 167, 31 S. Ct. 164. "To quote the quaint but expressive words of Lord Holt, in Coggs v. Bernard, 2 Ld. Raymond, 909, when defending and applying the doctrine of absolute liability against loss not due to the act of God or the public enemy, 'this rule,^ said he, 'is a politick establishment contrived by the policy of the law for the safely of all persons, the necessity of whose afifairs oblige them to trust these sort of persons that they may be safe in their ways of dealing.' " Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. ISfi, 20.5, 55 L. Ed. 167. 31 S. Ct. 164. 595-8la. Duty to resist judicial process. — American Exp. Co. v. MuUins, 212 U. S. 311, 53 L. Ed. 525, 29 S. Ct. 381. 595-81b. Rights of carrier when judicial process interferes. — "It might also notify the owner of the property and call upon him to carry on the litigation. This it did; notified him in time, and received from him an assurance that he would contest the legality of the seizure. This relieved the company from further responsibility. and the owner can no longer complain of it because the judgment of the Kansas court seized and disposed of the prop- erty." American Exp. Co. v. Mullins, 212 U. S. 311, 315, 53 L. Ed. 525, 29 S. Ct. 381; Stiles v. Davis, 1 Black 101, 17 L. Ed. 33; Wells v. Maine Steamship Company, 4 Clifif. 228; Edwards z'. White Line Tran- sit Company, 104 Massachusetts, 159; Bliven t'. Hudson River R. R. Co.. 36 N. Y. 403; Ohio & Mississippi Ry. Co v. Yohne, 51 Indiana, 181; Savannah, etc., R. R. Co. V. Wilcox, Gibbs & Co., 48 Georgia. 432; Railroad Company z: O'Donnell, 49 Ohio St. 489, 501. 595-810. Effect of fraudulent judgment. —American Exp. Co. v. Mullins, 212 U. S. 311, 314, 53 L. Ed. 525. 29 S. Ct. 381; Har- ris V. Balk, 198 U. S. 215, 49 L Ed. 1023. 595-88. Deviation — Under usage of trade. — "By the admiralty law, a departure from the regular course of a shipment when done under the usage of trade is no de- viation. Hostetter v. Park, 137 U. S. 30. 40. 34 L. Ed. 568. So, also, in Con- stable V. National Steamship Co., 154 U. S. 51, 52, 38 L. Ed. 903, it was said: 'In the law maritime a deviation is defined as a "voluntary departure without necessity or any reasonable cause, from the regular and usual course of the ship issued." ' " Empire State Cattle Co. v. Atchison, etc., R. Co.. 210 U. S. 1, 21, 52 L Ed. 931, 28 S. Ct. 607. 220 A'ol. III. CARRIERS. 596-610 necessity, to resort to such other reasonably direct route as may be available under the existing conditions to carry the freight to its destination, and if such necessity exists, in the absence of negligence in selecting the changed route, the carrier is not responsible for damages resulting from the change even if such change may be, in law, a concurring and proximate cause of such damages.^^^ 8. Delay in Transportation. — The implied agreement of a common carrier is to carry safely and deliver at destination within a proper time; evidence of diligence and no unreasonable delay excuses. ^^^^ It is otherwise when the action is for a breach of a contract to carry within a particular time, or to make a par- ticular connection, or to carry by a particular train. The railroad company, by its contract, becomes liable for the consequence of a failure to transport accord- ing to its terms. Evidence of diligence will not excuse.^"^ 10. Stoppage in Transit for Inspection or Reconsignment. — The stop- ping of a commodity in transit for the purpose of treatment or reconsignment is in the nature of special privilege which the carrier may concede, but whicli the shipper can not, in the present state of the law, demand as a matter of lawful right. ^^^ Carriers may not, however, discriminate between markets nor between individuals in the granting of such privileges. ^^"^ P. Delivery by Carrier — 1. Necessity for Delivery. — See note 1. H. Connecting' Carriers — 1. Liability of Initial Carrier — a. Loss or Damage on Its Ozvn Line. — See note 51. b. Duty to Deliver to or Notify Connecting Carrier — (1) In General. — See note 52. c. Liability for Loss or Damage on Route of Connecting Carrier — (1) In Ab- sence of Contract. — See note 59. (2) Under Contract for Through Carriage — (a) Pozver to Make Contract — aa. Pozver of Railroad Corporation — (aa) In General. — See note 60. 596-88a. Deviation in case of necessity. — Empire State Cattle Co. v. Atchison, etc., R. Co., ^10 U. S. ], 52 L. Ed. 931. 28 S. Ct. 607. Deviation by a carrier of live stock from the usual and most direct route because of a washout on a connecting line, and the bad condition of its own tracks, will not, in the entire absence of all negli- gence in selecting the new route, which is as reasonably direct as is available under existing conditions render the carrier li- able for a loss occasioned by a flood at a point on such new route. Judgments (1906), 147 F. 457, 77 C. C. A. 601, and 147 F. 463, 77 C. C. A. 607, affirmed. Empire State Cattle Co. v. Atchison, etc., R. Co., 210 U. S. 1, 52 L. Ed. 931, 28 S. Ct. 607. 597-95a. Delay in transportation. — Chi- cago, etc., R. Co. ■?■. Kirby, 225 U. S. 155, 56 L. Ed. 1033. 32 S. Ct. 648. 597-95b. Contract to carry with particu- lar time. — Chicago, etc., R. Co. v. Kirby, 225 U. S. 155, 164, 56 L. Ed. 1033, 32 S. Ct. 648. "The company, by entering into an agreement for expediting the shipment, came under a liability different and more Intrdensome than would exist to a shipper who made no such special contract." Chi- cago, etc., R. Co. V. Kirby, 225 U. S. 155, 164, 56 L. Ed. 1033. 32 S. Ct. 648. 598-99a. Stoppage in transit. — Southern R. Co. V. St. Louis Hay, etc., Co., 214 U- S. 297, 300, 53 L. Ed. 1004, 29 S. Ct. 678. As to compensation for this privilege, see post, "Compensation for Stoppage in Transit for Inspection, etc.," Ill, I, 8. 598-99b. Discrimination as to privilege. — Southern R. Co. v. St. Louis Hay, etc., Co., 214 U. S. 297, 300, 53 L. Ed. 1004, 29 S. 'Ct. 678. 598-1. Necessity for delivering. — The implied agreement of a common carrier is not only to carry safely but to deliver at destination within a proper time. Chi- cago, etc., R. Co. V. Kirby, 225 U. S. 155, 56 L. Ed. 1033, 32 S. Ct. 648. _ 608-51. Loss or damage on its own line. — .Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.-- S. 186, 197, 55 L. Ed. 167, 31 S. Ct. 104. 609-52. Duty to deliver or notify con- necting carrier. — Atlantic Coast Line R. Co. V. Riverside Mills, 219 U. S. 186, 197, 55 L. Ed. 167. 31 S. Ct. 164. 610-59. Liability in absence of contract. — Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 196, 55 L. Ed. 167, 31 S. Ct. 164. 610-60. Special contract for through carnage. — "The general doctrine accepted by this court, in the absence of legislation. is, that a carrier, unless there be a special contract, is only bound to carry over its own line and then deliver to a connecting 221 611-613 CARRIERS. Vol. III. Effect of Provision in Bill of Lading. — A provision in a bill of lading is- sued by the initial carrier that it should not be liable for loss or damage not occurring on its portion of the route is not a contract of exemption from its own liability as a carrier, but a provision of nonassumption of the liabilities of others and at common law relieves it of such liabilities.'' i'' (3) Under Statutes. — Carmack Amendment to Interstate Commerce Act. — Congress has power to prohibit a carrier- engaged in interstate commerce from limiting by contract its liability beyond its own line, and the Carmack amend- ment of January 29, 1906, c. 3591, 34 Stat. 584, 595, to § 20 of the Interstate Commerce Act, making such carriers liable for loss or damage to merchandise ieceived for interstate transportation beyond their own lines, notwithstanding any contract of exemption in the bill of lading, is a valid exercise of such pov/er ■and is not in conflict with the due process provision of the fifth admendment.'^^^ carrier. Thai such an initial carrier might contract to carry over the whole route was never doubted. It is equally indis- putable that if it does so contract, its com- mon-law carrier liability will extend over the entire route." Atlantic Coast Line R. Co. V. Riverside Mills, 219 U. S. 186, 197, 55 L. Ed. 167, 31 S. Ct. 164, citing Railway Co. V. McCarthy, 96 U. S. 258, 266, 24 L. Ed. 693; Railroad Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Northern Pac. R. Co. 7'. American Trading Co., 195 U. S. 439, 49 L. Ed. 269; Muschamp v. Lancaster Railway Co., 8 M. & W. 421. "Independently of statute the carrier, when tendered property for such trans- portation, might elect to contract to carry to destination, in which case it necessarily agreed to do so through the agency of other and independent carriers in the line; or, it might elect to carry safely over its own lines only and then deliver to the next carrier, who would then become the agent of the shipper. In the first case the receiving carrier's liability, as carrier, ex- tends over the whole route, for, on pb- vious grounds, the principal is liable for the acts of its agent. In the other case its carrier liability ends at its own terminal, and its further liability is merely that of a forwarder." Atlantic Coast Line R. Co. 7-. Riverside IMills, 219 U. S. 186, 196, 55 L. Ed. 167, 31 S. Ct. 164. 611-6la. Effect of provision in bill of lading. — Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164. "At the common law, an initial carrier under such a state of facts would not be liable for a loss through the fault of a connecting carrier to whom it had, in due course, safely delivered the goods for further transportation." Atlantic Coast Line R. Co. 7'. Riverside Mills. 219 U. S. 186, 195, 55 L. Ed. 167, 31 S. Ct. 164, cit- ing Railroad Co. v. Pratt. 22 Wall. 123, 22 L. Ed. 827; Myrick v. Michigan Cent. R. Co., 107 U. S. 102, 27 L. Ed. 325; Southern Pac. R. Co. v. Interstate Com- merce Comm.. 200 U. vS. 536, 554, 50 L. Ed. 585. 613-75a. Under statutes — Carmack Amendment. — Atlantic Coast Line R. Co. 7-. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164; Galveston, etc., R. Co. 7'. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 S. Ct. 205. See post, CONSTITU- TIONAL LAW; INTERSTATE AND FOREIGN COMMERCE. Initial carrier liable as principal. — Un- der the Carmack amendment to the In- terstate Commerce Act, the initial carrier is, as principal, liable not only for its own negligence, but that of any agency which it may use. Atlantic Coast Line R. Co. 7'. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164. Effect of voluntary acceptance of through shipment. — Under the Carmack amendment, wherever the carrier volun- tarily accepts goods for shipment to a point on another line in another state, it is conclusively treated as having made a through contract. " Atlantic Coast Line R. Co. 7'. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164. It thereby elects to treat connecting carriers as its agents and the presumptions are that if goods are lost results from the negligence of itself or of its agents. Galveston, etc.. R. Co. 7'. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 S. Ct. 205. "Congress has said that a receiving car- rier, in spite of any stipulation to the con- trary, shall be deemed, when it receives propert}^ in one state to be transported to a point in another involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route, with the right to reimbursement for a loss not due to his own negligence." Atlantic Coast Line R. Co. 7-. '^Riverside Mills. 219 U. S. 186, 205, 55 L. Ed. 167. 31 S. Ct. 164. Stipulation against liability for damage not caused by negligence. — And the ques- tion has arisen but not been decided whether the Carmack amendment makes the initial carrier an insurer, or deprives it of the right to contract with the shipper against liability for damages not caused 222 Vol. III. CARRIERS. 613-620 Under that amendment, when a carrier accepts goods for shipment to a point on another hne in another state, the burden of proof falls on it as the initial carrier to prove that the loss has not resulted from some cause for which it is in law or by contract responsible.'^^'' 2. Liability of Connecting Carrier. — Though the receiving carrier is, as principal, liable not only for its own negligence, but for that of any agency it may use, yet, as between themselves, the company actually causing the loss may be primarily liable."''"^ I. Freight and Charges of Carrier. — (7) Recovery Back of Freight Charges Improperly Collected. — A carrier is not liable to an action to refund the excess over an illegal special rate if the rate actually collected is the ap- plicable legal published rate.^^^ ,8. Compensation for Stoppage in Transit for Inspection, etc. — A car- rier is entitled to compensation in addition to the actual cost involved in taking loaded cars in transit to the shipper's warehouses at an intermediate point for unloading, inspection, and reloading, and taking away the reloaded cars, whether or not the carrier is under any obligation to extend such a privilege to shippers.'^-'' IV. Carriers of Live Stock. A. Duties and Liabilities in General. — Where a flood is unexpected and of an unprecedented character a railroad company may not, under the circum- stances of the case, be chargeable with negligence in sending cattle trains by another route or for failing to move the cattle from the stock yards before the climax of the flood.^*^ C. Duty to Unload, Feed, Water and Rest Stock.— The Act of June 29. 1906, c. 3594, 34 Stat. 607, to prevent cruelty to animals in transit, is general and applies to all shipments of cattle as made. The statute is not for the ben- efit of shippers but is restrictive of their rights, and violations are not to be measured by the number of shippers, but as to the time when the duty is to be performed. '^^ Under the nearly identical Act of 1873, Rev. Stat., § 4386, it was by its own or the connecting carrier's neg- 297, 53 L. Ed. 1004, 29 S. Ct. 678, reversing ligence. Galveston, etc., R. Co. z: Wal- 153 Fed. 728, 82 C. C. A. 614. lace, 223 U. S. 481, 56 L. Ed. 516, 32 S. If stopping freight while in transit, for Ct. 205. inspection and reloading, is of benefit to 613-75b. Burden of proving cause of loss. the shipper and involves service bj^ and — Galveston, etc., R. Co. z: Wallace, 223 expense to the carrier the latter is not U. S. 481, 56 L. Ed. 516, 32 S. Ct. 205. limited to the actual cost of that privi- It was not only the legal elements of lege, and it is justified in receiving some the situation, but also the fact that the compensation in addition thereto. South- business prosperity of the country largely ern R. Co. z\ St. Louis Hay, etc., Co., 21 i depends on through rates and routes of U. S. 297, 301, 53 L. Ed. 1004, 29 S. Ct. 6J8. transportation, that induced congress to 619-4a. Duties and liabilities of carrier enact such regulations in regard to the of live stock. — Empire State Cattle Co. z: duties and liabilities of interstate carriers Atchison, etc.. R. Co., 210 U. S. 1, 52 L. as would relieve shippers whose goods Ed. 931, 28 S. Ct. 607. were damaged from the burden of prov- 620-8a. Duty to feed, water and rest ing where the loss occurred. Atlantic stock — Act of 1906 construed.— Baltimore. Coast Line R. Co. v. Riverside Mills, 219 etc.. R. Co. v. United States, 220 U. S. 94, U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164. 55 L. Ed. 384, 31 S. Ct. 368. 614-76a. Liability of connecting carrier. As to consolidation of actions, see post, —Atlantic Coast Line R. Co. :•. Riverside COXSOLIDATIOX OF ACTIOXS. Mills, 219 U. S. 186, 206, 55 L. Ed. 167. The number of the penalties recover- 31 S. Ct. 164. able under .A.ct June 29, 1906, c. 3594. 34 617-92a. Recovery back of charges— II- Stat. 607 (U. S. Comp. St. Supp. 1909, p. legal special rate.— Kansas, etc., R. Co. z: 1178), making 28 hours the limit of con- Albers Comm. Co., 223 U. S. 573, 56 L. finement of live stock in transit without Ed. 556, 32 S. Ct. 316. unloading, and prescribing a penalty for 617-92b. Compensation for stoppage in every failure of the carrier to comply with transit for inspection, etc. — Southern R this provision, is not measured by the Co. c'. St. Louis Hay, etc., Co., 214 U. S. number of shipments on the same train, 223 620-629 CARRIERS. Vol. III. held that the penalties were not to be measured by the number of cattle in the shipment, nor the number of cars in which they were transported.^" F. Damages for Injuries in Course of Transportation. — See ante, "Duties and Liabilities in General," IV, A. V. Regulation of Carriers. A. Regulation by State — 1. Amount of Charges — a. Power of State — ^(1) Nature and Extent of Power — (a) In General. — Upon the admission of a state into the Union, reserving the riglit, to congress, to regulate rates until the state government should exist, when that government shall possess the power to reg- ulate, the whole subject of domestic rate regulation passes under the control of the state when the government thereof comes into existence.^'^'' b. Mode of Regulation — (2) By Railroad Commission — (a) In General. — The establishment of a rate is the making of a rule for the future, and therefore is an act legislative and not judicial in kind.'*^'' A state constitution, if it sees nor is the train the unit of offense, but where the same train contains live stock loaded at different periods, one penalty accrues when the period of lawful con- finement for the cattle first loaded ex- pires, and other separate and distinct pen- alties accrue as the time for the lawful confinement of the cattle loaded at later periods successively expires. Baltimore, etc., R. Co. V. United States, 220 U. S. 94, 55 L. Ed. 384, 31 S. Ct. 308, modifying judgment. United States v. Baltimore & O. S. W. R. Co., 159 F. 33, 86 C. C. A. 223. But one penalty may be recovered against a carrier violating the provisions of Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1909, p. 1178), making 28 hours the limit of confinement of live stock in transit without unloading, unless extended by request of the owner to 36 hours, and prescribing a penalty for every failure of the carrier to comply with this provision, where the time for the re- quired unloading of two shipments loaded at different times coincides, because one shipment was forwarded under the 36-liour rule, and the other was made eight hours later, under the 28-hour rule, from a dif- ferent station. Baltimore, etc., R. Co. v. United States, 220 U. S. 94, 55 L. Ed. 384, 31 S. Ct. 368, modifying Judg. U. S. v. Baltimore & O. S. W. R. Co., 159 F. 23, 86 C. C. A. 223. 620-8b. Act of 1873 construed.— Balti- more, etc., R. Co. V. United States, 220 U. S. 94, 103, 55 L. Ed. 384, 31 S. Ct. 368, citing United States v. Boston & Albany R. R. Co., 15 Fed. Rep. 209; United States V. St. Louis R. R. Co., 107 Fed. Rep. 807. _ 623-16a. Admission of state — Domestic rates subject of state control. — Upon the admission of Oklahoma into the Union under Enabling Act June 16, 1906, c. 3335, § 4, 34 Stat. 271, § 4, "on an equal footing with the original states," the congressional requirement that the Kansas rates should be the test of the rates which the South- ern Kansas Railway Company might charge the inhabitants of the Indian Ter- ritory, made by Act Cong. July 4, 1884, c. ]79, 23 Stat. 73, reserving to congress the right to regulate rates until a state gov- ernment should exist, when that govern- ment should possess the right of regula- tion, ceased to be of any force, and the whole subject of domestic rates passed under the control of the state. Okla- homa V. Atchison, etc., R. Co., 220 U. S. 277, 55 L. Ed. 465, 31 S. Ct. 434. Upon the admission of Oklahoma into the Union under Enabling Act June 16, 1906, c. 3335, § 4, 34 Stat. 271, the con- gressional requirement that the Kansas rates should be the test of the rates which the Chicago, Kansas, & Nebraska Railway Company might charge the inhabitants of the Indian Territory for domestic ship- ments, made by Act March 2, 1887, c. 319, 24 Stat. 446, reserving to congress the right to regulate such rates until a state government should exist, when that gov- ernment should possess the right of regu- lation, ceased to be of any force in the state, and the whole subject of domestic rates passed under the control of the state. Oklahoma v. Chicago, etc., R. Co., 220 U. S. 302, 55 L. Ed. 474, 31 S. Ct. 442, affirming judgment in Chicago, R. I. & P. Ry. Co. V. Territory, 97 P. 267, 21 Okl. 334. See, also, post, INTERSTATE AND FOREIGN COMMERCE. 629-44a. Regulation by commission — Act legislative when. — Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, 53 L. Ed. 150, 29 S. Ct. 67. See post, "Rates Fixed bv Railroad Commission," V, A, 1, f, (1), (a), bb. This seems to be fully recognized by the supreme court of appeals in Common- wealth V. Atlantic Coast Line Ry. Co., 106 Virginia 61, 64; Winchester and Strasburg R. R. Co. and others v. Commonwealth, 106 Virginia, 264, 281. See, further. In- terstate Commerce Comm. v. Cincinnati, etc., R. Co., 167 U. S. 479, 505, 42 L. Ed. 243; San Diego Land, etc., Co. v. Jasper. 189 U. S. 439, 440, 47 L- Ed. 982. 224 \'ol. III. CARRIERS. 629-637 fit, may unite legislative and judicial powers in a railroad commission. There is nothing in the constitution of the United States which forbids such action.'^'*" c. Reasonableness and Validity of Regulation — (2) Mode of Determining Rea- sonableness — (a) Carrier Entitled to Fair Return on Investment — aa. In Gen- eral. — Whether a railroad rate is confiscatory so as to deprive the company of its property without due process of law within the meaning of the fourteenth amendment depends upon the valuation of the property, the income derivable from the rate, and the proportion between the two, which are matters of fact which the company cannot be prevented from trying before a competent tribunal of its own choosing.^2^ (1) Reasonableness a Judicial Question — aa. In General. — See post, "Rates Fixed by Railroad Commission," V, A, 1, f, (1), (a), bb. (3) Authority and Pozver of Railroad Commission. — Jurisdiction so extensive as to place in the hands of a commission power to make general maximum rates lor all commodities between all points in the state is not to be implied, but must be given in language admitting no other reasonable construction." ^^ Partial Invalidity— Whole Rate Falls.— Where a railroad commission after a hearing on specific complaint as to a rate on a particular commodity makes a general rate tariff for maximum rates on all commodities which is be- yond its statutory power, the whole tariff falls, and the rate on the tariff on the particular commodity will not be separately sustained.'^ s** f. Relief against Enforcement of Rates Fi.ved by Legislature or Commission — (1) Right to and Mode of Obtaining Relief — (a) Relief to Carrier — bb. Rates Fixed by Railroad Commission. — The proceedings of a state railroad commis- 629-44b. Power to unite legislative and judicial authority in commission. — Pren- tis ?'. Atlantic Coast Line Co., 211 U. S. 210, 22.5, 53 L. Ed. 150, 29 S. Ct. 67; Dreyer t'. Illinois, 187 U. S. 71, 84, 47 L. Ed. 79; Winchester & Strasburg R. R. Co. r. Commonwealth, 106 Virginia 264, 268. See. also, post, CONSTITU- TIOXAL LAW. 631-52a. Mode of determining reason- ableness. — Prentis z'. Atlantic Coast Line Co., 211 U. S. 210, 211, 53 L. Ed. 150, 29 S. Ct. 67. See post, CONSTITUTIONAL LAW; DUE PROCESS OF LAW. 637-78a. Power to make general maxi- mum rates. — Siler t'. Louisville, etc.. R. Co.. 213 U. S. 175. 176, 53 L. Ed. 753, 29 S. Ct. 451 (construing Kentucky railroad commission act). The fact that the legislature of a state gives to a railroad commission no power to raise rates, but only power to reduce rates found to be exorbitant after hearing on specific complaint, is an argument against construing the statute so as to give the commission power to fix maxi- mum, rates on all commodities. Siler v. Louisville, etc., R. Co., 213 U. S. 175, 176, 53 L. Ed. 753, 29 S. Ct. 451. Power to make a general schedule of maximum rates for the transportation of all commodities, upon all railroads, to and from all points within the state, upon a general and comprehensive complaint that rates are too high, or upon like informa- tion of the commission itself, is not con- ferred upon the Kentucky railroad com- mission by Act Ky. March 10, 1900 (Acts 1900, p. 5, c. 2), authorizing it, upon com- plaint that the rates of any railway com- pany are extortionate, or upon its own information, to fix a reasonable rate if, after hearing, it finds the rates extortion- ate. Siler ?■. Louisville, etc., R. Co., 213 U. S. 175, 53 L. Ed. 753, 29 S. Ct. 451; Siler T'. Illinois Cent. R. Co., 213 U. S. 199, 53 L. Ed. 760, 29 S. Ct. 458. Construction by federal court. — Not- withstanding the highest court of the state has not yet construed the statute involved, the federal supreme court must, in a case of which it has jurisdiction, con- strue it. Siler v. Louisville, etc.. R. Co., 213 U. S. 175, 53 L. Ed. 753, 29 S. Ct. 451. 637-78b. Partial invalidity— What rate falls.— Siler z\ Louisville, etc.. R. Co., 213 U. S. 175, 176, 53 L. Ed. 753, 29 S. Ct. 451. A particular rate on a specific com- modity fixed by the Kentucky railroad commission will not, in order to sustain its validity, be separated from the general order fixing a general schedule of maxi- mum rates for all commodities, upon all railroads, to and from all points within the state, where the specific order was made after a general complaint was filed, and is itself a general order, and was made in the exercise of the unfounded assump- tion of the power under Act Ky. March 10, 1900 (Acts 1900, p. 5, c. 2), to make a general tarifif of rates. Siler v. Louis- ville, etc., R. Co., 213 U. S. 175, 53 L. Ed. 753, 29 S. Ct. 451. 12 U S Enc— 15 225 637-639 CARRIERS. Vol. IIL sion which are legislative in nature are not proceedings in a court, and are sub- ject to injunctive process, no matter v^hat may be the character of the body in which they take place. ^^a when a rate is fixed by a railroad commission, a bill against the commission to restrain the members from enforcing it is not as bad as an attempt to enjoin legislation or as a suit against a state, but is the proper form of remedy.^-'' But such proceedings should not be commenced in the fed- eral court until the rate has been fixed by the state tribunal having the last word.^-° (2) Jurisdiction. — See note 84. 2. Discrimination in Charges or Facilities — b. Discrimination in Favor of One of Several Connecting Carriers — (2) Providing Stations and Interchanging Freight. — The duty of a carrier to accept goods tendered at its station does not require it to accept cars offered by competing roads at arbitrary points near its terminus for the purpose of using its terminal station. A law requiring the car- rier so to do is unconstitutional as taking property without due process of law.^^a (3) Requiring Delivery and Receipt of Cars betzv'een Connecting Carrier. — A provision in the constitution of a state that a carrier must deliver its cars to connecting carriers without providing adequate protection for their return, or compensation for their use, amounts to a taking of property without due process of law within the meaning of the fourteenth amendment; and so held as tO' §§ 213, 214, of the constitution of Kentucky.^^b ^j-^^j ^|-,g property of a railway 637-82a. Enjoining rate established by commission. — Prentis 7'. Atlantic Coast Line Co., 211 U. S. 210, 211, 53 L. Ed. 150, 29 S. Ct. 67. See ante, "By Railroad Com- mission," V, A, 1, b, (2). See, also, post, INJUNCTIONS. The making of a rate by a legislative body, after hearing the interested parties, is not res judicata upon the validity of the rate when questioned by those par- ties in a suit in a court. Litigation does not arise until after legislation; nor can a state make such legislative action res judicata in subsequent litigation. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. 637-82b. Not bad as injoining legisla- tion — Suit not against state. — Prentis z\ Atlantic Coast Line Co., 211 U. S. 210, 230, 53 L. Ed. 150, 29 S. Ct. 67; Reagan v. Farmers' Loan, etc., Co., 154 U. S. 362, 38 S. Ct. 1014; Smyth v. Ames, 169 U. S. 466, 43 L. Ed. 819; Chicago, etc., R. Co. v. Tompkins, 176 U. S. 167, 44 L. Ed. 417; Hanley z'. Kansas, etc., R. Co., 187 U. S. 617, 47 L. Ed. 333; McNeill zk Southern Ry. Co., 202 U. S. 543, 50 L._ Ed. 1142; Mis- sissippi R. Comm. z'. Illinois Cent. R. Co., 203 U. S. 335, 51 L. Ed. 209; Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. See post, COURTS; INJUNC- TIONS. 637-820. Resort to state tribunals first. — While a party does not lose his right to complain of action under an unconsti- tutional law by not using diligence to pre- vent its enactment, on a question of rail- road rates, when an appeal to the supreme court of the state from an order of the state corporation commission fixing such rates is given hv the state constitution, it is proper that dissatisfied railroads should take this matter to the supreme court of their state before bringing a bill in the circuit court of the United States. Under the circumstances of this case action on a bill was suspended to await the result of such an appeal. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 211, 53 L- Ed. 150, 29 S. Ct. 67. 638-84. Jurisdiction. — Ex parte Young, 209 U. S. 123, 149, 52 L. Ed. 714, 28 S. Ct. 441. As to grounds of federal jurisdiction, see post, COURTS. As to equitable juris- diction of federal courts, see post, EQUITY. 639-92a. Providing for interchanging freight. — Louisville, etc., R. Co. rj. Cen- tral Stock Yards Co., 212 U. S. 132, 133, 53 L. Ed. 441, 29 S. Ct. 246. See, also, post, INTERSTATE AND FOREIGN COM- MERCE. 639-92b. Requiring delivery of cars tci connecting carrier. — Louisville, etc, R. Co. V. Central Stock Yards Co., 212 U. S. 132, 53 L. Ed. 441, 29 S. Ct. 246. (Decided with reference to §§ 213, 214 of the Kentucky constitution.) See post, DUE PROCESS OF LAW. Requiring a railway company to delivcx^ its own cars to another railway company when performing its duty under Con.-^t. Ky., § 213, to receive, deliver, and trans- port freight from and to any point where there is a physical connection between its tracks and those of any other railway company deprives the former company of its property without due process of law. Judgment in 97 S. W. 778, 30 Ky. Law Rep. 18, reversed. Louisville, '"tc. R. Co. z: Central Stock Yards Co., 212 U. S. 132, 53 L. Ed. 441, 29 S. Ct. 246. 226 Vol. III. CERTIFICATE OF DIFISIOX OF OPINION. 639-644 company is taken witliout due process of law where such company is compelled, upon payment simply for the service of carriage, to accept cars oflfered to it at an arbitrary connecting point near its terminus, by a competing road, for the purpose of reaching and using the former's terminal facilities. ^2*^ e. Requiring Connection between Trains or Roads. — But such requirement must not violate the constitution prohibiting taking property without due process. ^^^ The places and persons interested, the volume of business to be affected, and the saving in time and expense to the shipper, as against the cost and loss to the carrier, must be considered in determining the reasonableness of, and the public necessity for, an order of a state railroad commission requir- ing trackage connections at certain points between competing railway companies for the interchange of business, which is attacked as taking property without due process of law.^^'' B. Regulation by United States. — See post, Interstatk and Foreign Commerce. CAR TRUST ASSOCIATIONS.— See the title Car Trust Associations, vol. 3. p. 642, and references there given. CASE.— See note 1. CASE AGREED.— See ante. Agreed Case, p. 17. CASE CERTIFIED.— See ante. Appeal and Error, p. 34. CASE STATED. — See post. Exceptions, Bile of, and Statement oe Facts ON Appeal. CASHIER. — See ante, Banks and Banking, p. 184. CAUSE OF ACTION. — See ante, Actions, p. 7, and references there given. CAVEAT— CAVEATOR.— See post, Wills. CEDED TERRITORY.— See post. Constitutional Law. CEMETERIES.— See the title Cemeteries, vol. 3, p. 647, and references there given. In addition, see post. Constitutional Law ; Health ; Police Power. CERTIFICATE OF ACKNOWLEDGMENT.— See ante. Acknowledgments, p. 7. CERTIFICATE OF DEPOSIT.— See ante. Banks and Banking, p. 184. CERTIFICATE OF DIVISION OF OPINION.— See ante, Appeal and Er- ror, p. 34. 639-92C. Requiring receipt of cars. — no testimony that any freight had been Louisville, etc., R. Co. v. Central Stock offered in the past for shipment between Yards Co., 212 U. S. 132, 53 L. Ed. 441, 29 those points, or that any such freight S. Ct. 246. would be offered in the future, and with 641-98a. Due process of law required. — no proof as to the volume of business at Oregon R., etc., Co. r. Fairchild, 224 U. any of these points, nor the amount of S. 510, 56 L. Ed. 863, 32 S. Ct. 535. See fre'ight that would be routed over the post. DUE PROCESS OF L.\W. track connections if they were con- 641-98b. Places and person interested — structed, and with no testimony as to the Volume of business. — Oregoa R., etc., probable revenue that would be derived Co. V. Fairchild. 224 U. S. 510, 56 L. Ed. from the use of the track connections, or 863, 32 S. Ct. 535. if the saving in freight or otherwise that No public necessity is shown which will would result to the shippers. Oregon R., justify, under the due process of law etc., Co. z-. Fairchild, 224 U. S. 510, 56 L. clause of the federal constitution, an order Ed. 863, 32 S. Ct. 535. of a state railroad commission requiring 644-1. Case or controversy to which, trackage connections at certain points be- under the federal constitution, the federal tween competing railwaj'- companies for power extends. — See ante, APPEAL AND the interchange of business, where the ERROR, p. 34. commission acted without any evidence of Cases in law and equity arising under inadequate service, with no proof of pub- the constitution or laws of the United lie complaint or of a public demand, with States. — See post, COURTS. 664-673 CHANNEL. Vol. III. CERTIFICATE OF STOCK. — See post, Stock and Stockholdi^rs. CERTIFIED CHECK. — See ante, Banks and Banking, p. 184. CERTIFIED COPIES. — See post. Documentary Evidence:. CERTIORARI. VI. The Writ, 228. B. Return, 228. 4. Manner and Requisites of Return, 228. CROSS REFERENCES. See the title CeIrtiorari, vol. 3, p. 651, and references there given. ■ As to certiorari to circuit court of appeals, see Appel\l and Error, ante, p. 34. VI. The Writ. B. Return — 4. Manne;r and Re:quisite;s of Re;turn. — Waiver of Defects in Return. — Defects in the return of a writ of certiorari are waived by failure to object when tbe return is made.^"'' CESSION.— See post, Constitutionai. Law ; Tri^aties. CHALLENGE.— See post, Grand Jury; Jury. CHAMBERS AND VACATION. I. Powers and Duties of Judges at Chambers, 228. A. In General, 228. CROSS REFERENCES. See the title Chambers and Vacation, vol. 3, p. 666, and references there given. I. Powers and Duties of Judges at Chambers. A. In General. — Exercise of Powers in Different Courts.— A federal cir- cuit Judge can dispose of any administrative matter in any circuit court in his circuit properly ordered at chambers, without personally going into its territorial limits, if his chambers are held in the circuit. ^^ CHAMPERTY AND MAINTENANCE.— See the title Champerty and Maintenance, vol. 3, p. 668, and references there given. CHANCERY.— See post, Equity. • CHANGE OF VENUE.— See post. Habeas Corpus; Venue. CHANNEL.— See note 1. 664-57a. Waiver of defects in return. — 6/3-1. Middle channel. — The middle of Technical defects in the return of munici- the main channel of the river is what is pal officers in a proceeding by certiorari meant by the words "the middle channel to quash an alleged illegal drainage tax of said river," in the Act of February 14, assessment are waived by failure to ob- 1859, admitting Oregon into the Union ject when the return to the rule to show with the Columbia as its northern bound- cause was made the return to the writ. afy. Washington v. Oregon, 214 U. S. Judgment in 29 App. D. C. 563, reversed. 205, 53 L. Ed. 969, 29 S. Ct. 631. See ante, District of Columbia v. Brooke, 214 U. S. BOUNDARTHS, p. 206. 138. 53 L. Ed. 94], 29 S. Ct. 560. _ Widest channel.— In the Act of Febru- 666-la. Exercise of powers in different ary 14, 1859, admitting Oregon into the courts. — Ex parte Harlan, 180 Fed. 119, Union, with the Columbia River as its decrees affirmed in Harlan v. McGourin, northern boundary, the term "widest 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. channel" does not mean the broadest ex- 228 Vol. III. CHARTREUSE. 673-698 CHARGE.— See note 3. CHARITIES.— See the title Charities, vol. 3, p. 675, and references there given. In addition, see post, Citizenship; Jurisdiction. CHARTER. — See ante. Banks and Banking, p. 184; post, Corporations; Turnpikes and Tollroads. As to construction of term of charter of a street railw^ay, see post. Street Railways. CHARTER PARTY.— See post. Ships and Shipping. CHARTREUSE.— See note la. panse of water. Tliere must be, in the first instance, a channel — that is, a flow of water deep enough to be used, and in fact used, by vessels in passing up and down the river; but that does not mean the deep- est channel but simply the widest expanse of water which can be reasonably be called a channel. Washington v. Oregon, 214 U. S. 205. 53 L. Ed. 969, 29 S. Ct. 631. See ante, BOUNDARIES, p. 206. 673-3. Charged vrith crime. — In the con- gressional provisions, § 5278, U. S. Revised Statutes, enacted in aid of the constitu- tional provision as to extradition, directing that the charge of crime shall be made either by "an indictment found or an affi- davit made before the magistrate," the word charge was doubtless used in its broad significance to cover any proceed- ing which the state might see fit to adopt, by which the formed accusation was made against the alleged criminal. An indict- ment, whether good or bad, as a plead- ing, which unmistakably described every element of the crime false swearing under art. 209. Tex. Pen. Code, was sufficient. Pierce v. Creecv, 210 U. S. 387, 52 L. Ed. 1113, 28 S. Ct. 7'l4. See post, EXTRADI- TION. 698-la. Chartreuse not a geographical name. — The word Chartreuse, as applied to the liqvieur which for generations they made and sold, can not be regarded in a proper sense as a geographical name. It had exclusive reference to the fact that it was tile liqueur made by the Carthusian monks at their monastery. So far as it embraced the notion of place, the descrip- tion was not of a district, but of the mon- astery of the order — the abode of the monks — and the term in its entirety pointed to production by the monks. The word was susceptible of executive appro- priation as a trademark by the Carthusian monks of the monastery of La Grande Chartreuse to designate a liquer made and sold by them for generations. Baglin v. Cusenier Co., 221 U. S. 580. 55 L. Ed. 863, 31 S. Ct. 669. See post, TRADEMARKS, TRADENAMES AND UNFAIR COM- PETITION. 229 712-721 CHATTEL MORTGAGES. Vol. III. CHATTEL MORTGAGES. II. Form, Requisites and Validity, 230. K. Recording or Filing, 230. 3. Necessity, 230. b. As against Assignees of Mortgagor, 230. (2) Assignee in Bankruptcy, 230. , c. As against Creditors and Purchasers, 230. (1) Subsequent Creditors and Purchasers, 230. (d) Persons Who Are Creditors, 230. bb. Lien Creditors, 230. cc. Notice, 231. (2) Prior Creditors and Purchasers, 231. L. Delivery of Possession to Mortgagee or Retention by Mortgagor, 231. 2. Under the Recordirig Acts, 231. c. Power of Disposal in Mortgagor, 231. (2) Power for Benefit of Mortgagor Alone, 231. III. Construction, Operation and Effect, 231. B. Rules of Construction, 231. 2. Whether Instrument, Mortgage or Note, 231. b. Distinguished from Other Instruments or Transactions, 231. (4) Sale, 231. CROSS REFERENCES. See the title Chatte;l Mortgages, vol. 3, p. 699, and references there given. In addition, see post. Recording Acts. II. Form, Requisites and Validity. K. Recording or Filing — 3. Necessity — b. As against Assignees of Mort- gagor — (2) Assignee in Bankruptcy. — The effect to be given in bankruptcy pro- ceedings to an unrecorded chattel mortgage as against subsequent creditors of the bankrupt mortgagee, without notice, must be determined by the recording law of the state, in view of the declaration of the Bankrupt Act of Julv 1. 1898 (30 Stat, at L. 564, chap. 541, U. S. Comp. Stat. 1901, p. 3449), § '67a, that claims which, for want of record, or for other reasons, would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens against his estate.^*^^ c. As against Creditors and Purchasers — (1) Subsequent Creditors and Pur- chasers — (d) Persons Who Are Creditors — bb. Lien Creditors. — The term "cred- itors" as used in Ky. Stat. 1903, § 496, includes subsequent creditors without notice, who, by their diligence, secure a specific lien upon the property, as by execution or attachment, before the mortgage is recorded.^"^ Subsequent cred- itors without notice of an unrecorded chattel mortgage, who have not secured any specific lien upon the mortgaged property by execution, attachment, or other- wise, are not comprehended by the term "creditor," as used in Ky. Stat. 1903, § 496, which provides that no unrecorded mortgage shall be valid against a pur- chaser for a valuable consideration, without notice thereof, or against cred- itors.''^^ 712-363. Assignee in bankruptcy.— Holt ble Steel Co., 224 U. S. 262, 56 L. Ed. 756. V. Crucible Steel Co., 224 U. S. 262, 56 L. 32 S. Ct. 414. Ed. 756, 32 S. Ct. 414. And see ante, 721-77b. Holt r. Crucible Steel Co., 224 BANKRUPTCY, p. 168. U. S. 262, 56 L. Ed. 756, 32 S. Ct. 414. 721-77a. Lien creditors. — Holt v. Cruci- 230 Vol. III. CHECKS. 722-744 cc. Notice. — The terms "creditors'' in Ky. Stat. 1903, § 496, does not include subsequent creditors whose claims are acquired with notice of an unrecorded chattel mortgage. ^2* (2) Prior Creditors and Purchasers. — The term "creditors" in Ky. Stat. 1903, § 496, does not include antecedent creditors. ^-^^ L. Delivery of Possession to Mortgagee or Retention by Mortgagor — 2. Under the Recording Acts — c. Pozver of Disposal in Mortgagor — (2) Power for Benefit of Mortgagor Alone. — Where the stipulations of a chattel mortgage practically permit the mortgagor to retain possession and to dispose of the property for his own benefit, it is void, because the efifect of such pro- visions is to give the beneficial use of the mortgaged property to the mortgagor in possession, and to make possible the use of the mortgage as a protection against creditors of the mortgagor when they shall undertake to assert their rights. -^^ Such mortgage is invalid as against a trustee in bankruptcy. -°'* in. Construction, Operation and Effect. B. Rules or Construction — 2. Whether Instrument, Mortgage or Not — b. Distinguished from Other Instruments or Transactions — (A^ Sale. — Abso- lute Bill of Sale as Mortgage. — Evidence to show that a bill of sale which appears on its face to have been given in discharge of a debt was really intended to give the creditor additional security is admissible under the Porto Rico law of evidence (section 101) declaring that the rule which raises a conclusive pre- sumption of the truth of the facts recited in a written instrument does not apply to the recital of a consideration. ^^a Vendor a Guarantor. — Whether the vendor in a bill of sale which was held to be a chattel mortgage was a guarantor or not can not make the bill of sale something other than what it was or effect the liability of the guarantor upon it.-^2b CHECKS. — See ante, Banks and Banking, p. Checks, p. 204: post. Pensions. 184; Bills, Notes and 722-83a. Notice.— Holt r. Crucible Steel Co., 224 U. S. 262, 56 L. Ed. 756, 32 S. Ct. 414. 722-84a. Prior creditors. — Holt v. Cruci- ble Steel Co., 224 U. S. 262, 56 L. Ed. 756. 32 S. Ct. 414. 734-25a. Power for benefit of mort- gagor. — Knapp z\ r^Iihvaukee Trust Co.. 216 U. S. 54.5, 54 L. Ed. 610, 30 S. Ct. 412. Wisconsin. — A chattel mortgage is in- valid as to the creditors of the mortgagor under the Wisconsin statutes, as construed by the highest court of that state, where it permits the mortgagor to remain in possession of the property, applying the proceeds thereof to its own use, except that no dividend shall be declared or paid without first making provision for a sink- ing fund and for interest on its bonds, un- less the trustee shall waive the sinking fund payment, in which case the mone}'? which would otherwise go into such fund may be applied for the benefit of the mort- gagor, either as dividends or for the bene- fit of its business and property. Decree, 162 F. 675, 89 C. C. A. 467, affirmed. Knapp V. Milwaukee Trust Co., 216 U. S. 545, 54 L. Ed. 610, 30 S. Ct. 412. 734-25b. Validity as against trustee in bankruptcy. — A chattel mortgage which, under the Wisconsin laws and decisions, is void as to the creditors of the mort- gagor, for want of change of possession, is invalid as to the trustee in bankruptcy of such mortgagor, since, under the Bank- rupt Act of July 1, 1898, § 70a, the trus- tee in bankruptcy takes title to the prop- erty of the bankrupt which could have been levied upon and sold under judicial process against the bankrupt at the time of the adjudication in bankruptC3^ Knapp V. Milwaukee Trust Co.. 216 U. S. 545, 54 L. Ed. 610. 30 S. Ct. 412. 744-52a. Cabrera v. American Colonial Bank. 214 U. S. 224, 53 L. Ed. 974, 29 S. Ct. 623. In this case the court said: "In Mor- gan V. Shinn, 15 Wall. 105. 21 L. Ed. 87, the rule of equity was enforced against the bill of sale of a vessel, though it was enrolled and was insured in the name of the trans- feree. See Livingston v. Story, 11 Pet. 351. 9 L. Ed. 746." 744-52b. Vendor a guarantor. — Cabrera V. American Colonial Bank, 214 U. S. 224, 53 L. Ed. 974. 29 S. Ct. 623. 231 767-773 CHINESE EXCLUSION ACTS. Vol. III. CHEROKEE CHILDREN.— See post, Indians. CHILD— CHILDREN.— See note 4. CHINESE EXCLUSION ACTS. II. Classes Excluded, 232. C. Laborers, 232. E. Wife or Minor Child of Person Entitled to Enter, 232. III. Procedure, 232. B. Provisions for Registration and Identification, 232. 2. Certificate of Identity, 232. a. For Entry of Persons Entitled Other than Laborers, 232. D. Finality of Decision of Ministerial Officers, 233. F. Habeas Corpus, 234. CROSS REFERENCES. See the title Chine;sS Exclusion Acts, vol. 3, p. 769, and references there given. II. Classes Excluded. C. Laborers. — Chinese laborers are not tacitly exempted from the general provisions of the Immigration Act of February 20, 1907 (34 Stat, at L. 898, 908, chap. 1134, U. S. Comp. Stat. Supp. 1909, pp. 447, 466), for the deportation of any alien unlawfully entering the United States, because of the Chinese ex- clusion acts of earlier date, which make it unlawful for any Chinese laborer to come from any foreign place into the United States, or, having so come, to re- main there, and provide a dififerent procedure for removing him, although by § 43 of the later act its provisions shall not be construed to repeal, alter, or amend the laws relating to the Chinese. ^"^^ E. Wife or Minor Child of Person Entitled to Enter. — Inmate of House of Prostitution. — See ante, AuKns, p. 18. in. Procedure. B. Provisions for Registration and Identification — 2. Cf;rtificate.of Ide;ntity — a. For Entry of Persons Entitled Other than Laborers. — -Effect of Certificate. — A certificate of identity duly issued and vised by a consular rep- resentative of the Lhiited States, to a Chinese subject entitled to enter the United States under the treaty of December, 1894, is, upon application for admission, prima facie evidence of the facts set forth therein. 22 Stat, at L. 58, § 6, chap. 126, U. S. Comp. Stat. 1901, p. 1307; 33 Stat, at L. 428, chap. 1630. This certificate is the method which the two countries contracted in the treaty should establish a right of admission of students and others of the excepted class into the United States, and certainly it ought to be entitled to some weight in de- termining the rights of the one thus admitted. While this certificate may be overcome by proper evidence and may not have the efifect of a judicial determi- 767-4. Children that were minors at a minors living March 4. 1906." The words certain date. — Children born to enrolled "children who were minors living March members of the Cherokee Tribe after Sep- 4, 1906," as naturally and aptly embrace tember 1, 1902, though expressly excluded children born after as before September 1, by the Act of July 1, 1902, from enroll- 1902. Gritts v. Fisher, 224 U. S. 640, 56 L. ment or participation in the distribution Ed. 928. 32 S. Ct. 580. See post, IN- of the tribal propertj', were, if living on DIANS. March 4, 1906, embraced by the provisions 7<3-17a. Laborers. — United States v. of the Act of April 26, 1906, § 2, as Wong You, 223 U. S. 67, 56 L. Ed. 354, 32 amended by the Act of June 21, 1906, for S. Ct. 195. the enrollment of "children who were A'bl. III. CHINESE EXCLUSION ACTS. in-iso nation, yet, being made in conformity to the treaty, and upon it the Chinaman having been duly admitted to a residence in this country, he can not be deported, because of wrongfully entering the United States upon a fraudulent certificate, unless there is some competent evidence to overcome the legal effect of the certificate.^^^ D. Finality of Decision of Ministerial Officers. — Appeal to Secretary of Commerce and Labor. — The decision of the secretary of commerce and labor, affinning the denial by the inspector in charge of the right of a person of Chinese descent to admission into the United States, is, under the acts of con- gress making the decision of the appropriate immigration officer final unless reversed on appeal to the secretary of commerce and labor, conclusive, and not subject to review by the court, unless it affirmatively appears that they acted improperly or abused their discretion.^^^ The finality of the decision by the secretary of commerce and labor of an appeal from the decision of an inspector rejecting tlie application of a person of Chinese descent for admission into the United States is not afifected by the fact that the department held the case under consideration for less than two days, where the issue was a narrow one and per- mitted of speedy disposition. ^i'^ The decision of an appeal from the rejection of the application of a person of Chinese descent for admission into the United States is none the less that of the secretary of commerce and labor, because communicated by a telegram from the assistant secretary.* 1*= A hearing de novo before the district judge is contemplated by the pro- vision of Act Sept. 13, 1888, c. 1015, § 13, 25 Stat. 476 (U. S. Comp. St. 1^01, p. 1312), giving a Chinese person convicted before a United States commissioner of being unlawfully within the United States the right to appeal to the judge of the federal district court for the district.'*^'^ 777-33a. Effect of certificate. — Liu Hop Fong z'. United States, 209 U. S. 453, 52 L. Ed. 888, 28 S. Ct. 576. 780-41a. Tang Tun z: Edsell, 223 U. S. 673, 56 L. Ed. 606, 32 S. Ct. 359, so hold- ing under acts of congress of Aug. 18, 1894 (25 Stat, at L. 372, 390, chap. 301, U. S. Comp. Stat. 1901, p. 1303). and of Feb. 14, 1903 (32 Stat, at L. 825, 828, chap. 55^, U. S. Comp. Stat. Supp. 1909, p. 87). 780-41b. Tang Tun 7-. Edsell, 223 U. S. 673, 56 L. Ed. 606. 32 S. Ct. 359. 780-41C. Tang Tun t>. Edsell, 223 U. S. 673, 56 L. Ed. 606, 32 S. Ct. 359. 780-4ld. Appeal and certiorari. — Liu Hop Fong V. United States, 209 U. S. 453, 52 L. Ed. 888, 28 S. Ct. 576. The deportation of a Chinaman law- fully admitted to the United States upon a student's certificate, complying with the treaty with China of December 8. 1894, art. 3, 28 Stat. 1210, can not be ordered by a federal district court uoon the transcript of the proceedings before the commis- sioner, which presents merely such stu- dent's certificate and a statement that witnesses were examined, without any find- ings, or the giving of any testimony, al- though additional separate findings of the commissioner were afterwards filed, where this was done without the order of the court, and there was no consent to a hear- ing upon such additional findings. Liu Hop Fong V. United States, 209 U. S. 453, 52 L. Ed. 888, 28 S. Ct. 576. "In the case of Ah How z'. United States, 193 U. S. 65, 48 L. Ed. 619, 24 S. Ct. 357. it was assumed that the judge who tried the case upon appeal did so solely upon the commissioner's report, and heard no witnesses. In Tom Hong z'. United States. 193 U. S. 517, 48 L. Ed. 772, 24 S. Ct. 517, the commissioner made a finding, which was made part of the record by order of the district court." Liu Hop Fong z: United States, 209 U. S. 453, 52 L. Ed. 888. 28 S. Ct. 576. Fairness of hearing. — The refusal to ad- mit a person of Chinese descent into the United States, on the ground that he was not born in the United States, does not show a denial of a fair hearing, where all but one of the witnesses except himself to testify on such point were shown to be unworthy of belief, and that one relied upon his identification of him at eighteen, as the same person he had last seen as a boy of five years old. Tang Tun z\ Edsell. 223 U. S. 673. 56 L. Ed. 606, 32 S. Ct. 359. Acts of inspector. — The rights of an applicant of Chinese descent for admis- sion to the United States, who present.^; papers bearing apparent indorsement of the collector, showing the applicant's ad- mission on a former arrival from China, are not violated by the acts of the in- spector in examining the records of the customhouse, which contain a statement over the apparent signature of the same collector that the applicant had been re- 233 780 CIRCUMSTANTIAL EVIDENCE. Vol. III. Taking Entire Case to the Circuit Court of Appeals. — The entire case may be taken to the circuit court of appeals for review where the district court took jurisdiction of a writ of habeas corpus by a person of Chinese descent, whose application for admission into the United States had been rejected, and then proceeded to determine the merits, sustaining his claim of citizenship.^^® F. Habeas Corpus. — Habeas corpus should be granted by the federal courts to a Chinese person, claiming to be a citizen of the United States, who has ar- bitrarily been denied such a hearing and opportunity to prove his right to enter the United States as the exclusion acts demand, and has been placed in custody of a steamship company, to be returned to China, pursuant to the decisions of the commissioner of immigration and the department of commerce and labor.^^' CHOCTAW TREATY.— See post, Indians. CHOSES IN ACTION.— See ante, Assignments, p. 153. CHURCH. — See post, Reugious Societies. CIRCUMSTANTIAL EVIDENCE.— See the title Circumstantial Evi- dence, vol. 3, p. 786, and references there given. See, also, post. Evidence. jected on his previous application, and in asking for an explanation of such apparent lejection, nor by his communicating with immigration officers after an order reject- ing such applicant, to the end that the matter should be sifted, and that witnesses who had made affidavits in support of the applicant's appeal should be carefully ex- amined. Tang Tun v. Edsell, 223 U. S. 673, 56 L. Ed. 606, 32 S. Ct. 359. An inspector who has rejected the ap- plication of a person of Chinese descent for admission into the United States can not, on appeal from a writ of habeas cor- pus by such applicant, be held guilty of unfair or improper conduct in inserting in the record transmitted by him to the secretary of commerce and labor state- ments as to the result of investigations made by him as to arrivals and clearings of vessels at the time of an application for admission by the same applicant on a previous return from China, comments on the practice which had obtained in dealing with Chinese applicants for ad- mission, and references to entries in the official records, where such matters were called to the attention of the witnesses for the applicant, are not shown to have been false, or made with any attempt to deceive the secretarj', and on the hear- ing of the writ of habeas corpus it was stipulated that the matter should be heard on the record, including such statements, comments and references, and that the writ should be dismissed" if the court should find that there had been no abuse of discretion. Tang Tun v. Edsell, 223 U. S. 673, 56 L. Ed. 606, 32 S. Ct. 359. An inspector who had rejected the ap- plication of a person of Chinese descent for admission into the United States can not be held guilty of bad faith or im- proper conduct in forwarding to the secre- tary of commerce and labor papers found by examination of the records in the cases of other Chinese persons who arrived on the same steamer with the applicant at the time of an application for admission on a previous return from China, which records show his rejection at such time, although the papers presented by him on the later application show an apparent admission. Tang Tun v. Edsell, 223 U. S. 673, 56 L. Ed. 606, 32 S. Ct. 359. 780-41e. Tang Tun v. Edsell, 223 U. S. 673, 56 L. Ed. 606, 32 S. Ct. 359. 780-4lf. Habeas corpus. — Chin Yow v. United States, 208 U. S. 8, 52 L. Ed. 369, 28 S. Ct. 201. See post, HABEAS COR- PUS. 234 Vol. III. CiriL OFFICERS. 800-813 CITIZENSHIP. II. Acquisition of Citizenship, 235. C. By ^Marriage, 235. F. By Annexation or Conquest, 235. G. By Naturalization, 235. V. Termination or Loss of Citizenship, 235. CROSS REFERENCES. See the title Citizenship, vol. 3, p. 788, and references there given. II. Acquisition of Citizenship. C. By Marriage. — The status of a foreign born woman who marries an American by birth, who is consequently an American citizen, is regulated by statute.39^ F. By Annexation or Conquest. — See post. International Law. The ab- sence of a Spanish subject from the Philippine Islands during the entire period allowed by article 9 of the treaty of peace with Spain of December 10, 1898 (30 Stat. 1759), for making a declaration of his intention to preserve his allegiance to the crown of Spain, prevents the loss of his Spanish nationality by reason of his failure to make such declaration.^^^ G. By Naturalization. — See post. Naturalization. V. Termination or Loss of Citizenship. See ante, "By Annexation or Conquest," II, F. CIVIL ACTION, CASE, SUIT, ETC.— See note 1. CIVIL OFFICERS.— See note 3. 800-39a. By marriage. — Rev. Stat., § 1994 (U. S. Comp. Stat. 1901, p. 1268), Low Wah Suey v. Backus, 22.5 U. S. 460, 56 L. Ed. 1165, 32 S. Ct. 734. See, also, Yeung How V. North, 223 U. S. 705, 56 L. Ed. 021, 32 S. Ct. 517. See ante. CHINESE EX- CLUSION ACTS, p. 232. This section is said to originate in the act of congress of February 10, 1885 (10 Stat, at L. 604, chap. 71), 2d section, and was held to confer the privileges of citi- zenship upon women married to citizens of the United States, if they were of the class of persons for whose naturalization the acts of congress provide. So, under the present statute, when a v/oman who could be naturalized marries a citizen of the United States, she becomes by that act a citizen herself. A Chinese person not born in this country, and can not be- come a naturalized citizen unrler the laws of the United States. Being incapable of naturalization herself, a Chinese woman, although the wife of a Chinaman of Ameri- can birth, remains an alien. Low Wah Suey r. Backus. 225 U. S. 460, 56 L. Ed. 1165, 32 S. Ct. 734. 803-46a. Absence of Spanish subject. — Bosque v. United States. 209 U. S. 91, 52 L. Ed. 698. 28 S. Ct. 501. 813-1. Civil action. — See ante, AC- TIONS, p. 7. 813-3. Civil officers. — The acceptance by an army officer on the active list, detached to command a battalion of Philippine scouts, of a small sum from the civil gov- ernment of the Philippine Islands, to be used bj'' him in connection with his mili- tary command in the preparation and dis- play of the exhibit at the Louisiana Pur- chase Exposition, did not make him a civil officer, so as to be amendable to P. T. Penal Code, art. 300, punishing the falsifi- cation of a public document by a public official. The fact that in signing the false document he added, after his name, D. O.. meaning, it may be presumed, disburs- ing officer, does not change the result. Carrington r. United States, 208 U. S. 1. 52 L. Ed. 367, 28 S. Ct. 203. See Weems z: United States. 217 U. S. 349, 54 L. Ed. 793. 30 S. Ct. 544. See, also, ante. ■\r:\IY and NAVY, p. 150. 235 CniL RIGHTS. . Vol. III. CIVIL RIGHTS. I. Of the General Power of Congress to Protect Civil Rights, 236. A. Rights Protectable by Congress. 236. 1. Generally; Rights Granted or Secured by the Constitution of the United States, 236. 6. Right to Make and Carry Out Contracts, 237. B. Form and Manner of Protection. 237. 2. Revised Statutes, _§§ 5508, 5509, et seq.. 237. a. Constitutionality, 237. c. Offenses under § 5508, 237. (6) Conspiracy to Prevent Execution or Performance of Contracts, 237. 3. Civil Actions ; Jurisdiction of Federal Circuit Courts, 237. a. Generally ; Statutes Governing Jurisdiction, 237. b. Actions Relating to Civil Rights within the Meaning of the Statutes, 238. (3^) Imprisonment under Executive Order in Time of Insurrection, etc., 238. II. Powers of Congress under the Prohibitions against State Infringe- ment of Civil Rights, 238. A. Of the General Purpose of the War Amendments and Legislation En- acted Pursuant Thereto, 238. 1. Generally, 238. B. Fourteenth and Fifteenth Amendments Refer to State and Not to In- dividual Action, 238. F. Rights Protected, 238. 4. Equal and Impartial Justice, 238. b. Discrimination in the Selection of Jurors, 238. 6. Expenditure of School Fund ; Separate Schools for the Races, 239. 7. Right to Occupy Same Coach or Compartment, 239. G. Of the Form and Manner of Protection, 239. 8. Writ of Error to United States Supreme Court, 239. c. Motion or Plea in Abatement, 239. f . Evidence to Support Motion ; Necessity ; Presumptions, 240. g. Same: \Miat Record J\Iust Show, 240. CROSS REFERENCES. See the title Civil Rights, vol. 3, p. 814, and references there given. In addition, see ante. Aliens, p. 18; C.\rrilrs, p. 216; Chinese Exclusion Acts, p. 232; Citizenship, p. 235; post. Constitutional Law; Due Process OP Law ; Grand Jury ; Jury ; Police Power ; Schools and School Dis- tricts. I. Of the General Power of Congress to Protect Civil Rights. A. Rights Protectable by Congress — 1. Generally; Rights Granted or Secured by the Constitution oe the United States. — Effect of War Amendments. — There can be no dovibt, so far as the decision in the Slaughter- House Cases has determined the question, that the civil rights sometimes de- scribed as fundamental and inalienable, which before the war amendments, were 236 Vol. III. CIJIL RIGHTS. 817-822 enjoyed by state citizenship and protected by state government, were left un- touched by this clause of the fourteenth amendment."*^ 6. Right to Maku and Carry Out Contracts. — See notes 8, 9. Civil Rights as to Business Relations and Associations. — It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with anyone with whom he can make contracts, and, if he is wrongfully deprived of this right by others, he is entitled to redress.^'' Contracts for Labor and Personal Services — Rights of Employer and Employee. — The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it ; and the right of the employee to quit the service of the em- ployer, for whatever reason, is the same as the right of the employer, for what- ever reason, to dispense with the services of such employee. ''*' In all such par- ticulars the employer and employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of con- tract which no government can legally justify in a free land.^*^ B. Form and Manner of Protection — 2. Revised Statutes, §§ 5508, 5509, e;t sEQ. — a. Constitutionality.— See note 13. c. Offenses under § jjo8 — (6) Conspiracy to Prevent Bxecution or Perform- ance of Contracts. — See ante, "Right to Make and Carry Out Contracts," I, A, 6. 3. Civil Actions ; Jurisdiction oe Federal Circuit Courts — a. Generally; Statutes Governing Jurisdiction. — See note 28. 817-4a. Effect of war amendments. — Twining -■. New Jersey, 211 U. S. 78, 96, 53 L. Ed. 97, 29 S. Ct. 14. 818-8. Right to make and carry out con- tracts.— United States V. Powell, 212 U. S. 564, 53 L. Ed. 653, 29 S. Ct. 690, following Hodges V. United States, 203 U. S. 1, 51 L. Ed. 65. 27 S. Ct. 6. 818-9. Same — Thirteenth amendment. — United States v. Powell, 212 U. S. 564, 53 L. Ed. 653, 29 S. Ct. 690, following Hodges V. United States, 203 U. S. 1, 51 L. Ed. 65, 27 S. Ct. 6. 818-9a. Civil rights as to business rela- tions and associations. — Adair t'. United States, 208 U. S. 161, 52 L. Ed. 436, 28 S. Ct. 277. 818-9b. Contracts for labor and per- sonal services — Rights of employer and employee. — Adair v. United States. 208 U. S. 161. 52 E. Ed. 436, 28 S. Ct. 277. 818-9C. Adair v. United States, 208 U. S. 161. 52 L. Ed. 436. 28 S. Ct. 277r See, also, post, DUE PROCESS OF LAW. Personal liberty as well as the right of property is invaded without due process of law in violation of the fifth amendment of the constitution of the United States by the provisions of Act of June 1, 1898, c. 370, § 10, 30 Stat. 424 (U. S- Comp. Stat. 1901, p. 3205) making it a criminal offense against the United States for an agent or officer of an interstate carrier having full authority in the premises from his prin- cipal, to discharge an employee from serv- ice to such carrier because of his mem- bership in a labor organization. United States V. Adair (D. C), 152 Fed. 737. re- versed Adair v. United States, 208 U. S. 161, 52 L. Ed. 436, 28 S. Ct. 277. 819-13. Rev. Stats:, §§ 5508, 5509— Con- stitutionality. — The contention that § 5509 is unconstitutional, however presented, was long since put at rest. Rakes v. United States, 212 U. S. 55, 58, 53 L. Ed. 401, 29 S. Ct. 244; Motes v. United States, 178 U. S. 458, 44 L. Ed. 1150; Logan v. United States, 144 U. S. 263, 36 L. Ed. 429; In re Quarles, 158 U. S. 532, 39 L. Ed. 1080. 822-28. Civil jurisdiction of federal courts. — Rev. Stat., § 629, sixteenth clause, gives original jurisdiction to the federal circuit court "of all suits authorized by law to be brought by any person to re- dress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any state, of any right, privi- lege, or immunity, secured by the constitu- tion of the United States, or of any right secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States." Rev. Stat.. § 1979, au- thorizes suit to be brought for such depri- vation as above described. Moj'er v. Pea- body. 212 U. S. 78, 83, 53 L. Ed. 410, 29 S. Ct. 235. 23i 822-832 CIVIL RIGHTS. Vol. III. b. Actions Relating to Civil Rights ivithin the Meaning of the Statutes — (3>2) Imprisonment under Executive Order in Time of Insurrection, etc. — Where the governor of a state is, by law of the state, made the commander-in- chief of the national guard of the state and empowered to call out the national guard to repel invasion and to suppress insurrection within the state, his decla- ration that a state of insurrection exists is conclusive of that fact, and the power to suppress includes not only the power to kill men in the actual clash of arms, but the power to order the arrest of those engaged in the insurrection without resorting to civil process and to detain such parties until the insurrection is sup- pressed and danger of its renewal is over, and for so doing he can not be held responsible in a personal action brought against him by the imprisoned party after his term of office has expired; and a declaration, basing a cause of action upon such arrest and detention, does not disclose a "suit authorized by law to be brought in the federal circuit courts to redress the deprivation of any right secured by the constitution of the United States," within the meaning of U. S. Rev. Stat., §§ 629, 1979.3 1^ II. Powers of Congress under the Prohibitions against State Infringe- ment of Civil Rights. A. Of the General Purpose of the War Amendments and Legislation Enacted Pursuant Thereto — 1. Generally. — The Thirteenth Amendment. — See notes 43, 44. B. Fourteenth and Fifteenth Amendments Refer to State and Not to Individual Action. — See note 57. F. Rights Protected — 4. Equal and Impartlal Justice — b. Discrimina- tion in the Selection of Jurors. — See notes 79, 80. 81. 822-31a. Imprisonment under executive order in time of insurrection, etc. — Meyer V. Peabody, 212 U. S. 78, 83, 53 L. Ed. 410, 29 S. Ct. 235. 825-43. Thirteenth amendment — Char- acter of servitude forbidden. — United States V. Powell, 212 U. S. 564, 53 L. Ed. G53, 29 S. Ct. 690, following Hodges v. United States, 203 U. S. 1, 51 L. Ed. 65, 27 S. Ct. 6. 825-44. Same— Same.— United States v. Powell, 212 U. S. 564, 53 L. Ed. 653, 29 S. Ct. 690, following Hodges v. United States, 203 U. S. 1. 51 L. Ed. 65. 27 S. Ct. 6. 827-57. Fourteenth and fifteenth amend- ments refer to state actions — Thirteenth amendment. — The 14tli and 15th amend- ments are restraints upon the state action solely and not upon the actions of individ- uals. The 13th amendment operates to abolish slavery and involuntary servitude whether the same is attempted to be en- forced by states or individuals. Hodges V. United States, 203 U. S. 1, 51 L. Ed. 65, 27 S. Ct. 6, following United States v. Powell, 212 U. S. 564, 53 L. Ed. 653, 29 S. Ct. 690. 831-79. Constitution does not guarantee mixed jury. — Thomas t. Texas, 212 U. S. 278, 282, 53 L. Ed. 512, 29 S. Ct. 393, fol- lowing Martin v. Texas, 200 U. S. 316, 50 L. Ed. 497; Franklin ?'. South Carolina, 318 U. S. 161, 54 L. Ed. 980. 30 S. Ct. 640. 832-80. But forbids discrimination on ac- count of race or color. — Thomas v. Texas, 212 U. S. 278, 282, 53 L. Ed. 512, 29 S. Ct. 393, following Martin v. Texas. 200 U. S. 316, 50 L. Ed. 497; Franklin v. South Car- olina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 640. 832-81. Same. — Thomas v. Texas, 212 U. S. 278, 282, 53 L. Ed. 512, 29 S. Ct. 393, following Martin v. Texas, 200 U. S. 316, 50 L. Ed. 497; Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 640. No discrimination against negroes be- cause of their race, in the selection of the grand jury, is made by Laws S. C. 1902, p. 1066, § 2, giving the jury commissioners the right to select electors of good moral character, such as they may deem quali- fied to serve as jurors, being persons of sound judgment and free from all legal exceptions. Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 640, affirming judgment State ?'. Franklin (1908). 60 S. E. 953, 80 S. C. 332. Speaking upon the constitutionality of the vSoiith Carolina statute, the court says: "It is next contended, concerning the jury law of South Carolina, that it confers ar- bitrary power upon the jury commission- ers in selecting jurors. Section 2 of the act of 1902 provides (p. 1066.) 'They (the jury commissioners) shall * * * prepare a list of such qualified electors under the provisions of the constitution, between the ages of twenty-one and sixty-five years, and of good moral character, of their re- spective counties, as they may deem other- 238 Vol. III. CIVIL RIGHTS. 833 6. Expenditure of Schooe Funds; Separate Schools for the Races. — Right of Corporation to Conduct Mixed School — Due Process — Exercise of Reserved Power to Alter or Amend Charter. — See note 87a. 7. Right to Occupy Same .Coach or Compartment. — Right of Carrier to Adopt Regulations. — The interstate commerce clause of the federal constitu- tion does not constrain the action of carriers, but, on the contrary, leaves them to adopt rules and regulations for the government of their business free from any interference except by congress. Such rules and regulations, O'f course, must be reasonable, but whether they be such can not depend upon a passenger being state or interstate.^^^ Congressional inaction is equivalent to a declara- tion that a carrier may, by its regulations, separate white and negro interstate passengers. ^^'^ G. Of the Form and Manner of Protection — 8. Writ oe Error to United States Supreme Court — c. Motion or Plea in Abatement. — Motion for Peremptory Instruction. — Even though the state law and the warrant issued under it were unconstitutional and of no validity, because of the statute being opposed to the thirteenth and fourteenth amendments of the federal con- stitution and to the federal statutes abolishing and prohibiting peonage (Rev. Stats., §§ 1990, 5526, Comp. Stat. 1901, p. 3715) and declaring null and void state laws and usages in conflict therewith and penalizing state officers or any persons arresting or attempting to return any person to a state of peonage under the authority of such unconstitutional acts, a defendant accused of homicide in resisting an arrest under such a statute, in that without warning he shot and killed the officer who knocked for admission on his door, does not raise the question of the denial of his federal rights in the premises by merely requesting a peremptory instruction for an acquittal upon the ground that the state statute under which the officer was proceeding was unconstitutional and that the war- wise well qualified to serve as jurors, be- ing persons of sound judgment and free from all legal exceptions, which list shall include not less than one from every three of such qualified electors,' etc. We do not think there is anything in this provision ♦of the statute having the efifect to deny rights secured by the federal constitution. It gives to the jury commissioners the right to select electors of good moral character, such as they may deem qualified to serve as jurors, being persons of sound judg- ment and free from all legal exceptions. There is nothing in this statute which dis- criminates against individuals on account of race or color or previous condition, or which subjects such persons to any other or different treatment than other electors who may be qualified to serve as jurors. The statute simply provides for an exer- cise of judgment in attempting to secure competent jurors of proper qualification. Murray v. Louisiana, 163 U. S. 101, 108, 41 L. Ed. 87, 16 S. Ct. 990; Gibson v. Mis- sissippi, 162 U. S. 565, 589, 40 L. Ed. 1075, 16 S. Ct. 904. Under this statute, the su- preme court of South Carolina held that the jurj'- commissioners were only required to select men of good moral character, and that competent colored men were equally eligible with others for such service. We find no denial of federal rights in this pro- vision of the statute.'' Franklin f. South Carolina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 640. 833-87a. Right of corporation to conduct mixed school — Due process — Exercise of reserved power to alter or amend charter. — The prohibition against teaching white and negro pupils in the same institution, which is made by Acts of Ky. 1904, p. 181, c. 85, does not, when applied to a corpora- tion as to which the state has reserved the power to alter, amend, or repeal its char- ter, deny due process of law nor otherwise violate the federal constitution, since the corporation had no inherent or property right to teach, nor any right of that char- acter whatever, except as conferred by the state; and under its charter it had no such irrevocable right as against the reserved power of the state to alter or amend its charter. Berea College v. Commonwealth. 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. af- firmed in 123 Ky. 209, 94 S. W. 623. 833-88a. Right of carrier to adopt regu- lations. — Chiles 7'. Chesapeake, etc., R. Co.. 218 U. S. 71, 54 L. Ed. 936, 30 S. Ct. 667. affirming 125 Ky. 299. 101 S. W. 386. 833-88b. May separate white and negro passengers where congress has not acted. —Chiles V. Chesapeake, etc., R. Co.. 218 U. S. 71, 54 L. Ed. 936. 30 S. Ct. 667, affirming 125 Ky. 299, 101 S. W. 386. 239 842-847 CLAIM. Vol. III. rant, if any, was of no validity, and that the officer was acting without any law- ful authority.28a f. Evidence to Support Motion; Necessity; Presumptions. — Unmixed Jury Not Proof of Discrimination. — See note 36. g. Same; What Record Must Shozv. — Record Must Show Discrimination in Impaneling Jury. — A motion to quash an indictment against a negro for disqualification of the grand jurors, who must be electors, because of a change in the state constitution respecting the qualifications of electors, alleged to vio- late the act of congress of June 25, 1868 (15 Stat, at L. 73, chap. 70), does not present any question of the denial of a federal right, where there is nothing in the record to show that the grand jury, as actually impaneled, contained any person who was not qualified as an elector under the earlier constitution, or was so made up as to exclude negro citizens on account of their race.'*^^ Same; Presumption; Conclusiveness of State Decision. — Where the statutes of the state make no discrimination, and provide a method fair on its face for selecting grand and petit jurors, the question whether or not discrim- mation against negroes because of their race or color was practiced by the jury commissioners in the selection of grand and petit jurors is one of fact, the de- cision of which by the state court is conclusive on the federal supreme court, on writ of error, unless so grossly wrong as to amount to an infraction of the federal constitution, which will not be presumed in the absence of any showing upon the record to that efifect.^^'' CIVIL SERVICE. — See post. Forgery and Counterfeiting. CIVIL WAR.— See post. War. CLAIM.— See note la. 842-28a. Motion for peremptory instruc- tion. — Franklin z'. South Carolina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 640. "It is next contended that the court erred in refusing to direct a verdict upon motion of the defendant's counsel at the close of the testimony, because the war- rant on which the deceased attempted to arrest the plaintiff in error was null and void, because the act under which it was issued was unconstitutional, and this, so far as federal questions are concerned, be- cause it was in violation of art. 4, and re- pugnant to the 13th and 14th Amendments of the federal constitution. * * * The only federal question raised in this connection is ■found in this denial of the motion to direct a verdict in favor of the accused, because t'he statute under which he was sought to be arrested was void under the federal constitution, and the warrant issued for his arrest under such unconstitutional law therefore void and of no effect. * * * An in- spection of this record does not disclose that by any request to charge, or other- wise, any advantage was sought to be taken of the unconstitutionality of the act other than is found in the request for the peremptory instruction to acquit the ac- cused. * * * The supreme court of South Carolina considered and overruled certain grounds of appeal, which embrace objec- tions to the charge. But we do not find in these rulings any determination of fed- eral questions adverse to the plaintiff in error which would warrant a reversal of the judgment by this court." Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 980. 30 S. Ct. 640. See post. VERDICT. 844-36. Unmixed jury not proof of dis- crimination. — Thomas v. Texas, 212 U. S. 278, 282, 53 L. Ed. 512, 29 S. Ct. 393. fol- lowing Martin v. Texas, 200 U. S. 316, 50 L. Ed. 497: Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct_. 640. 844-39a. Record must show discrimina- tion in empaneling jury. — Franklin v. South Carolina, 218 U. S. 161, 54 L- Ed. 980, 30 S. Ct. 640. 844-39b. Some — Presumption — Conclu- siveness of state decision. — Thomas v. Texas, 212 U. S. 278, 53 L. Ed. 512. 29 S. Ct. 393. See ante, APPEAL AND ER- ROR, p. 34. 847-la. Claim to real property. — The asserted right of citizens of New York and West Virginia as owners of timber lands in Georgia, near the Tennessee boundarj^ line, to protection against the destruction of their forests by the dis- charge of deleterious fumes and gases from the works of a New Jersey corpora- tion situated within the territorial juris- diction of the federal circuit for the east- ern district of Tennessee, is not a claim to real property within the district, within the meaning of the Act of March 3, 1875 (18 Stat, at L. 470, chap. 137), § 8, provid- 240 Vol. III. CLERKS OF COURT. 856-863 CLAIMS. — See post, Courts; International Law; States; Trh:aties; United States. CLASS LEGISLATION.— See post, Constitutional Law. CLERKS OF COURT. IV. Compensation, 24L A. In General, 241. 1. As Dependent upon Statute, 241. 2. Compensation Per Diem, 24L D. Duty to Account for Fees, 241. CROSS REFERENCES. See the title Clerks of Court, vol. 3, p. 849. and references there given. IV. Compensation. A. In General — 1. As Dependent upon Statute. — See post, "Duty to Ac- count for Fees," IV, D. 2. Compensation Per Diem. — The bankruptcy court of the United States is always open for the transaction of business, whether the judge be personally present or not."*'^'^ D. Duty to Account for Fees. — Prior to 1841 the clerks were not required to render any account of their fees to the government.*^^ The fees and emolu- ments stand in a different category from other moneys which a clerk may re- ceive by virtue of his office, as, for example, moneys paid into court.'^'' And ing for bringing in absent defendants in local actions, so as to confer jurisdiction upon that court over the New Jersey cor- poration, which refused to appear volun- tarily in the suit as a defendant. Ladew v. Tennessee Copper Co., 218 U. S. 357, 54 L. Ed. 1069, 31 S. Ct. 81. 856-44a. Clerk of bankruptcy court. — United States v. Marvin, 212 U. S. 275, 53 L. Ed. 510, 29 S. Ct. 297, citing United States V. Finnell, 185 U. S. 236, 46 L. Ed. 890; Owen v. United States, 41 C. CI. 69. See, also, post, COURTS. A clerk of a federal district and circuit court is entitled to his statutory per diem compensation for days on which he refers to the referee in bankruptcy voluntary pe- titions in bankruptcy filed during the ab- sence of the judge from the district, though without written orders to open the court for that or anv other purpose. United States V. Marvin, 212 U. S. 275, 53 L. Ed. 510, 29 S. Ct. 297. 863-7a. Duty to account for fees. — United States v. Mason, 218 U. S. 517, 54 L. Ed. 1133, 31 S. Ct. 28, citing United States V. Hill, 120 U. S. 169, 176. 30 L. Ed. 627. "The act of March 3, 1791, chapter 22, § 1 (1 Stat. 217), fixed their compensation for attending court and made an allow- ance for traveling. That of May 8, 1792, chapter 36, § 3 (1 Stat. 277), added such fees as were allowed by the supreme court of the state, and authorized the court to grant a reasonable compensation for the 12 U S Enc— 16 241 discharge of duties not performed by the clerks of the state court and for which the laws of the state made no allowance. But, under these statutes, the fees and emolu- ments received by the clerks were their own property. And they were to be re- covered 'in like manner as the fees of the officers of the states respectively for like services.' 1 Stat. 278, § 6. United States V. Mason, 218 U. S. 517, 522, 54 L. Ed. 1133, 31 S. Ct. 28. "This was followed by the act of May 18, 1842, chapter 29 (5 'Stat. 483), which limited the amount which the clerk could retain out of the fees and emoluments of his office." United States v. Mason, 218 U. S. 517, 523, 54 L. Ed. 1133, 31 S. Ct. 28. 863-7b. Fees not held as trust funds. — United States v. Mason, 218 U. S. 517, 529, 54 L. Ed. 1133, 31 S. Ct. 28. Rev. Stat., §§ 995-996. There is a separate system with respect to the fees and emoluments of clerks, and the amounts which the clerk receives are not moneys or property of the United States but a fund from which he receives his compensation and expenses, and as to the surplus for which he must account to the United States he is not trustee but debtor. United States v. Mason, 218 U. S. 517, 54 L. Ed. 1133, 31 S. Ct. 28. In United States v. Hill, 123 U. S. 681, 31 L. Ed. 275, 8 S. Ct. 308, the action was on the official bond of the clerk of the district court of the United States for the district of Massachusetts, and it was asserted 863 COLLEGES AND UNIVERSITIES. Vol. III. clerks of the federal courts are not controlled in respect to their fees and emol- uments and accounting therefor by the provisions of. the act of March 3, 187o, c. 144, 18 Stat. 479, or of Rev. Stat., §§ 5490 and 5497, relating to embezzle- ment of moneys and property of the United States by officers and other persons charged with the safe-keeping thereof."'^ CLIENT. — See ante, Attgrne^y and Cue:nt, p. 158. CLOSED SEASON. — See post, Game and Game Laws. CLOUD ON TITLE.— See post. Quieting Title. COAL LANDS. ^See post. Mines and Minerals. CODE PLEADING.— See post, Pleading. COEMPLOYEES.— See post. Fellow Servants. COIN. — As to exportation of coin, see post. Constitutional Law. COLLATERAL ATTACK.— See post, Judgments and Decrees; Military Law; Public Lands. COLLATERAL SECURITY.— See post, Pledge and Collateral Security. COLLECTIONS.— See ante. Banks and Banking, p. 184. COLLEGES AND UNIVERSITIES.— See the title Colleges and Universi- ties, vol. 3, p. 867, and references there given. In addition, see post. Impairment oe Obligation of Contracts ; Public Lands ; Taxation. As to actions against colleges, see post, States. that the federal supreme court had juris- a revenue law within the meaning of § 699. diction to review the judgment because the United States v. Mason, 318 U. S. 517, 529, suit was brought for the enforcement of 54 L. Ed. 1133, 31 S. Ct. 28. a "revenue law." The court held that 863-7c. Embezzlement statute not appli- § 844, Rev. Stat., requiring the clerk to pay cable. — United States v. Mason, 218 U. S. into the treasury any surplus of fees and 517, 54 L. Ed. 1133, 31 S. Ct. 28. See, gen- emoluments shown by his return was not erally, post, EMBEZZLEMENT. 242 Vol. III. COLLISION. 923-932 COLLISION. III. Precautions to Avoid Collision, 243. D. Special Precautions Required in Fog or Thick Weather. 243. 2. Speed, 243. b. Steam Vessels, 243. G. Tugs and Vessels in Tow. 243. 1. Injury to Third \'essels. 243. d. Liability as between Tug and Tow, 243. (3) When Tug Liable Alone, 243. 4. Precaution to Prevent Collision, 243. V. Rights and Liabilities Growing Out of Collision, 243. A. What Law Governs, 243. E. Division of Loss in Case of Mutual Fault, 244. 2. Admiralty Rule, 244. a. Loss or Injury Sustained by Vessels, 244. VI. Actions or Suits for Collision, 244. A. Jurisdiction, 244. CROSS REFERENCES. See the title Collision, vol. 3, p. 870, and references there given. III. Precautions to Avoid Collision. D. Special Precautions Required in Fog or Thick Weather — 2. Speed — b. Steam Vessels. — See note 50. G. Tugs and Vessels in Tow — 1. Injury to Third Vessels — d. Liability as between Tug and Tow — (3) When Tug Liable Alone. — A car afloat in tow of a tug is not responsible to a scow for damages resulting from a collision be- tween the scow and the float, where the tug alone was at fault. ^^^ 4. Precaution to Prevent Collision. — Under rule 11 of the supervising inspectors of steam vessels, adopted pursuant to section 2 of the inland rules CAct June 7, 1897, c. 4. 30 Stat. 102 [U. S. Comp. St. 1901, p. 2884]), the lights thereby required to be carried by a scow in tow are not solely to prevent collision with herself, but also to assist in indicating to approaching vessels the number and length of the tow and positions of the vessels ; and she may be charged with contributory fault for a collision with another vessel of the tow because of her failure to comply with such rules. ^^* V. Rights and Liabilities Growing Out of Collision. A. What Law Governs. — See post, Conflict of Laws. See, also, ante, Admiralty, p. 10. 923-50. Steam vessels— Speed.— "L'n- Eugene F. Moran, 154 F. 41, 83 C. C A. doubtedly the fog was exceedingl}' dense, 153; The Charles fi. Matthews, Id.; The 15 that fact is uncontradicted, and the steamer D and 18 D, Id., and (C. C. A.) 170 F. 928. had not 'reduced her speed to such a rate answered. The Eugene F. Moran, 212 U. as would enable her to stop in time to S. 4G6. 53 L. Ed. 000. 29 S. Ct. 339. avoid collision after an approaching vessel 932-99a. Lights and other visible signals, cafne in sight, provided such approaching — (U. S. C. C. A., N. Y.) The Eugene F. vessel were herself going at the moderate Moran, 170 F. 928, 96 C. C. A. 144: The speed required by law.'" La Bourgogne, Charles E. Matthews, Id.; Scows 15 D and 210 U. S. 95, 114. 52 L. Ed. 973, 28 S. Ct. 18 D. Id. Certified questions answered G64, citing The Chattahoochee, 173 U. S. The Eugene F. Moran, 212 U. S. 466. 53 L. 540, 43 L. Ed. 801. Ed. 600, 29 S. Ct. 339. 931-95a. When tug alone liable.— The 243 935-949 COMMERCIAL TREATIES. Vol. III. E. Division of Loss in Case of Mutual Fault — 2. Admiralty Rule — a. Loss or Injury Sustained by Vessels. — See note 20. VI. Actions or Suits for Collision. A. Jurisdiction. — As to admiralty jurisdiction in suit for collision, see ante, Admiralty, p. 10. As to concurrent remedy at common law, see ante, Ad- miralty, p. 10. COLOR OF TITLE. — See post, Limitation of Actions and Adverse Pos- session. COMBINATION.— See note a. COMBINATIONS. — See post. Patents. As to combinations to control trans- portation, see post, Monopolies and Corporate Trusts. COMBINATIONS IN RESTRAINT OF TRADE.— See post. Interstate and Foreign Commerce; Monopolies and Corporate Trusts; Restraint of Trade. COMITY. — See post. Conflict of Laws; Constitutional Law. COMMERCE.— See note 1. COMMERCIAL AGREEMENTS AND CONVENTIONS.— See post. Rev-. ENUE Laws; Treaties. COMMERCIAL PAPER.— See ante, Bills, Notes and Checks, p. 204. COMMERCIAL TREATIES.— See post, Revenue Laws; Treaties. 935-20. Apportionment. — The damages sustained by a car afloat in tow of a tug hired to carry her from place to place in a harbor as the result of a collision with one of two scows in tow of another tug, for which both scows and both tugs were severally at fault, should be assessed equally upon the four offending vessels, although the scows are the property of the same owner. Certified questions (1906) The Eugene F. Moran. 154 F. 41, 83 C. C. A. 153; The Charles E. Matthews, Id.; The 15 D and 18 D. Id., and (C. C. A. 1909) 170 F. 928, answered. The Eugene F. Moran, 212 U. S. 466, 53 L. Ed. 600, 29 S. Ct. 339. The damages sustained by one of two scows in tow of a tug as a result of a col- lision with a car float in tow of another tug, for which both scows and both tugs were severally at fault, should be assessed equally on all four offending vessels, the libelant's two scows each bearing its pro- portion of the loss. Certified questions (1906) The Eugene F. Moran, 154 F. 41, 83 C. C. A. 153; The 15 D and 18 D, and (C. C. A. 1909) 170 F. 928, answered. The Eu- gene F. Moran, 212 U. S. 466. 53 L. Ed. 600, 29 S. Ct. 339. See post, TOWAGE, TUGS AND TOWS. 948-a. Combination within meaning of patent law.- — "A combination is a composi- tion of elements, some of which may be old and others new, or all old or all new. It is, however, the combination that is the invention, and is as much a unit in con- templation of law as a single or non- composite instrument. Whoever uses it without permission is an infringer of it." Leeds, etc., Co. v. Victor, etc., Mach. Co., 213 U. S. 325, 332, 53 L. Ed. 816, 29 S. Ct. 503. See post, PATENTS. 949-1. Commerce among the states. — In the constitutional provision conferring upon congress the power "to regulate commerce * * * among the several states," the term commerce comprehends more than the mere exchange of goods. It em- braces commercial intercourse in all its branches, including transportation of pas- sengers and property by common carriers, whether carried on by water or by land. Second Employers' Liability Cases, 223 U. S. 1, 46, 56 L. Ed. 327, 32 S. Ct. 169. .See post, INTERSTATE AND FOREIGN COMMERCE. Commerce atnong the several states comprehends traffic, intercourse, trade, navigation, communication, the transit of persons and the transmission of inessages by telegraph — indeed, every species of commercial intercourse among the several States, but not to that commerce "com- pletely internal, which is carried on be- tween man and man, in a state, or be- tween different parts of the saine state, and which does not extend to or affect other states." Adair v. United States, 208 U. S. 161, 176, 52 L. Ed. 436, 28 S. Ct. 277. See International Textbook Co. v. Pigg, 217 U. S. 91, 106, 54 L. Ed. 678> 30 S. Ct. 481. 244 Vol. III. COMMON LAW. 956-962 COMMITMENT AND PRELIMINARY EXAMINATION OP ACCUSED.— See the title Commitment and PrHliminary Examination of Accused, vol. 3, p. 951, and references there given. COMMODITY.— See note 1. COMMON CARRIERS.— See post, Carriers; Ships and Shipping; Street Railways; Telegraphs and Telephones. COMMON LAW. I. Definitions, Nature and General Consideration, 245. A. Definitions, 245. V. Adoption of Common Law, 245. A. Adoption in States, 245. 3. Methods of Adoption, 245. b. Constitutional Provisions, 145. c. Recognition by Courts, 245. 7. Adoption of Particular Common-Law Principles, 245. u. \\'ater and Riparian Rights, 245. D. Adoption in the District of Columbia, 246. IX. Evidence of, 246. D. Presumption and Burden of Proof, 246. CROSS REFERENCES. See the title Common Law, vol. 3, p. 958, and references there given. In addition, see post. Conflict of Laws; Foreign Laws. I. Definitions, Nature and General Consideration. A. Definitions. — See note 2. V. Adoption of Common Law. A. Adoption in States — 3. Methods of Adoption — b. Constitutional Pro- visions.- — Constitutional and Statutory Provisions or Judicial Decisions. — The common law has been adopted by constitutional provision, by statute or decision. ^"^ c. Recognition by Courts. — See ante, "Constitutional Provisions," V, A, 3, b. 7. Adoption of Particular Common-Law Principles — u. Water and Ri- parian Rights. — Riparian Rights in Arizona. — The general adoption of the 956-1. Interest in commodities. — The other written can make no difference in ownership by a railway carrier of stock their validity or effect. Western Union in a bona fide corporation manufacturing, Tel. Co. v. Commercial Milling Co., 218 U. mining, producing or owning the com- S. 406, 54 L. Ed. 1088, 31 S. Ct. 59. modity carried is not the "interest, direct 962-17a. Constitutional and statutory or indirect." in such commodity, forbidden provisions or judicial decision. — The com- to the carrier by the Hepburn Act of June mon law did not become a part of the laws 29, 1906, but such words are to be taken of the states of its own vigor. It has been as embracing only the legal and equitable adopted by constitutional provision, by interests in the commodities to which statute or decision, and is not the same in they refer. Attorney General v. Dela- all particulars in all the states. But how- ware, etc.. Co., 213 U. S. 366, 53 L. Ed. ever adopted, it expresses a policy of the 835, 29 S. Ct. 527. See post. INTER- state for the time being only and is sub- STATE AND FOREIGN COMMERCE. ject to change by the power that adopted 960-2. Rules of conduct proceeding from it. It can not have an efficacy that the supreme power of state. — Both the com- statute changing it does not possess, mon law and statutes are rules of conduct Western Union Tel. Co. v. Commercial proceeding from the supreme power of the Milling Co., 218 U. S. 400, 54 L. Ed. 1088, state. That one is unwritten and the 31 S. Ct. 59. 245 966-976 COMPACTS. Vol. III. common law in Arizona did not include the common-law doctrine of riparian rights.'' ^^ D. Adoption in the District of Columbia. — See note 89. IX. Evidence of. D. Presumption and Burden of Proof. — Presumption as to Law of a Foreign Country. — As between two common-law countries, the common law of one reasonably may be presumed to be what it is decided to be in the other in a case tried in the latter state, but this is not true of a country in which the com- mon law is not in vog::2.^^^ COMMON PROPERTY.— See post, Joint Tenants and Tenants in Common. COMMON STOCK.— See post. Stock and Stockholders. COMMUNITY ESTATE. — See post. Executors and Administrators. COMMUNITY PRO±'ERTY.— See post. Husband and Wife. COMMUTATION OF SENTENCE.— See post. Habeas Corpus; Military Law; Pardon; Sentence and Punishment. And see post, Mitigation o^ Sentence. COMPACTS.— See post. Revenue Laws; States; Treaties. 966-61a. The general adoption of the common law by Howell's Ariz. Code, 1864. chap. 6], § 7, can not be deemed to have included the common-law doctrine of ri- parian rights, in view of the declaration of the Bill of Rights, art. 22. that streams susceptible of use for irrigation purposes are public property, and of the various provisions of chap. 55 of the Code, giving those owning or possessing irrigable lands the right to divert, by means of irrigating canals, necessary water from any conven- ient stream. This was merely the adop- tion of a general system G1 1107-1110 CONSPIRACY. Vol. III. indictment charging a conspiracy to restrain or monopolize trade, in violation of the Sherman act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]), by improperly excluding a competitor from business, although the conspiracy is alleged to have been formed on a specified date, which was more than three years before the finding of the indictment, where such indict- ment, consistently with the other facts, alleges that the conspiracy continued to the date of its presentment.^^'^ G|. Instructions. — Where four persons, B., H., D., and S., are indicted for a criminal conspiracy, it is sufficient to show that any two of them entered into the conspiracy; and a direction to the jury, asked by the defendants, that, unless the jury shall find H. and B. both guilty as charged, their verdict shall be in favor of all the defendants, is properly refused.^^*^ H. Punishment. — See note 48. IV. Evidence. Relevancy. — Evidence that certain letters in the possession of the govern- ment on the trial of a criminal conspiracy to defraud the United States, which were addressed to one of the defendants under an alias, could only have been obtained by robbing the mails, is not relevant.*^ i'^ Intention. — The refusal to permit one accused of conspiring to defraud the United States to testify as to his intent in abstracting correspondence from the files of a corporation, which the government claims was to suppress evi- dence against himself, is reversible error where the conviction rests largely upon the testimony of a felon and self-confessed accomplice, although there may have been other testimony from which inferences as to such intent might have been drawn.^'^" Circumstances with Which Party Connected. — Where the guilt of con- spirators depends upon the intent, purpose, design or knowledge with which an act is done, circumstances in which they have taken a principal part may be examined into for the purpose of establishing such guilty intent, purpose, de- sign or knowledge. ^1*^ certiorari granted. Hyde v. United States, 347, 357, 56 L. Ed. 1114, 32 S. Ct. 793; 218 U. S. 681, 54 L. Ed. 1207, 31 S. Ct. 228; Hyde v. United States, 35 App. D. C. 451, S. C, 225 U. S. 347, 56 L. Ed. 1114, 32 S. writ of certiorari granted. Hyde v. United Ct. 793. States, 218 U. S. 681, 54 L. Ed. 1207, 31 S. Silent acquiescence in later acts. — The Ct. 228. disclosure by a government employee of 1110-61a. Relevancy. — Hyde v. United the existence of a continuing conspiracy. States, 225 U. S. 347, 56 L. Ed. 1114, 32 S. to which he was a party, to defraud the Ct. 793. See post, EVIDENCE. United States out of its public lands, con- 1110-61b. Intention. — Crawford v. United trary to U. S. Rev. Stat., § 5440, U. S- States, 212 U. S. 183, 53 L. Ed. 465, 29 S. Comp. Stat. 1901, p. 3676, is not sufificient Ct. 260. to prevent the subsequent overt acts of 1110-61c. Circumstances with which any of his associates from continuing him party connected. — Williamson v. United in the conspiracy so far as the statute of States, 207 U. S. 425, 52 L. Ed. 278, 28 S. limitations is concerned, if, after the first Ct. 163. disclosure, he silently acquiesced in the Understanding of agreement. — Evidence later acts. Hyde v. United States, 225 U. as to how the entrymen of timber and S. 347, 56 L. Ed. 1114, 32 S. Ct. 793. Stone lands understood their arrangement 1107-45C. Pleading limitation. — United with one of the defendants charged with States V. Kissel, 218 U. S. 601, 607, 54 L. a conspiracy to suborn perjury, and of Ed. 1168, 31 S. Ct. 124. their purpose in applying for the land, is 1107-45d. Instructions. — Hyde v. United admissible where no formal contracts States, 35 App. D. C. 451, writ of certiorari were executed between the alleged con- granted. Hyde v. United States, 218 U. S. spirators and the proposed entrymen, the 681, 54 L. Ed. 1207, 31 S. Ct. 228. See post, alleged understandings being of an ambig- INSTRUCTIONS. uous nature, and proof of the conspiracy 1107-48. Punishment under § 5440, Rev. depending upon a variety of circumstances Stat. — Hyde v. United States. 225 U. S. tending to show motive or intent. Wil- 263 Vol. III. CONSTITUTION. 1110 Overt Acts. — In a criminal prosecution for conspiracy to defraud the United States out of public lands, evidence tending to show acts of forgery of applica- tions for the land is admissible, although conviction is not asked for the forgery, when such acts are so intimately connected with the other acts of the accused as to tend to show a common scheme to defraud. ^^"^ CONSTITUTION.— See post. Coxstitutional Law ,Hamson v. United States, 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 163. Character of timber land in respect to suitability for grazing purposes. — Testi- mony as to the character, in respect to suitability for grazing purposes, of land sought to be acquired under the timber and stone act, is adm.issible on a trial for conspiracy to suborn perjury in the pro- ceedings, where it is insisted that the rfio- tive which impelled the formation of the alleged conspiracy was the desire to ac- quire a large tract of land for sheep-graz- ing purposes, which acquisition had be- come necessary by reason of the fact that a rival had obtained a leasehold interest in a considerable portion of the land which the alleged conspirators had theretofore used in their sheep-raising business. Wil- liamson V. United States, 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 1G3. Attempt to acquire and the acquisition of state school lands. — Evidence of an at- tempt to acquire, and of the acquisition, by like unlawful methods, of state school lands, is admissible of a trial for conspir- ing to suborn perjury in proceedings for the purchase of public land under the tim- ber and stone act, as tending to establish guilty intent, purpose, design, or knowledge on the part of the alleged conspirators. Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 163. 1110-61d. Overt acts. — Hyde v. United States, 35 App. D. C. 451, writ of certio- rari granted. Hyde v. United States, 218 U. S. 681, 54 L. Ed. 1207, 31 S. Ct. 228. 263 CONSTITUTIONAL LAW. Vol. IV. CONSTITUTIONAL LAW. I. Definition and Nature of a Constitution, 273. ni. Construction of Constitutions, 273. A. By Whom Construed. 273. 2. State Constitutions, 273. B. General ^Rules and Principles of Construction, 274. 3. Construction in the Light of Contemporaneous History and Ex- isting Conditions, 274. 10. Conflicting and Ineffective Provisions, 274. 17. Construction Strict or Liberal, When, 274. IV. Operation and Effect, 274. B. Supremacy as the Law, 274. 2. The Federal Constitution, Laws and Treaties, 274. a. Generally, 274. c. Supreme over State Laws, Officers and Agents as \\'ell as Federal. 275. (\) Generally, 275. (2) Supremacy of Federal Constitution, Laws and Treat- ies in Case of Conflict with Reserved Powers of the States, 275. d. Limitations upon the Supremacy of the Federal Constitution, Treaties and Laws, 275. (2) Limitations upon Treaties as the Supreme Law, 275. (b) Supremacy over Acts of Congress, 275. e. Duty of Courts to Uphold and ^Maintain the Supremacy of ^:he Federal Constitution, Treaties and Laws. 275. F. Self-Executing Provisions, 275. G. W^ho Mav Raise Constitutional Questions. 275. 1. Generally. 275. V. System or Theory of Constitutional Government in General, 278. A. State or Government Defined. 278. B. Powers Possessed by Government, 279. VI. Organization of Government in the United States, 279. D. Government under the Constitution, 279, 1. Dual Nature of Government, 279. 2. The United States as a Nation, 279. a. Generally, 279. c. Incidents of Sovereignty, 280. (3) Power to Accjuire, Govern and Dispose of Territory, 280. (b) Status of Accjuired Territory as Foreign or Do- mestic, 280. (aa) Generally, 280. (c) Government of Territory, 280. (bb) Usage as to Conquered or Ceded Territory, 280. (aaa) As to Private, Personal, and Property Rights ; Continuation of Existing Laws, 280. (cc) Power of Congress to Govern Territorv, 282. (bbb) Nature and Extent, 282. 264 ^'ol. IV. COXSTITUTIOXAL LAW. (aaaa) Generally, 282. (cccc) Form and Character of Govern- ment \\'hich Congress May Es- tablish, 282. (aaaaa) Generally, 282 (dddd) Powers of Territorial Govern- ments, 282. (eeee) Control of Territorial Govern- ment by Congress, 283. (d) Effect of Constitution upon Ordinances of the Old Confederation, 283. 3. Generally of the Powers of the State and Federal Governments, 283. a. Powers of the Federal Government, 283. (2) Limited in Number and Scope, 283. (3) The Federal Constitution a Grant of Powers. 284. (5) Incidental and Implied Powers of the Federal Govern- ment, 284. (a) Generally, 284. b. Powers of the States, 284. (1) Generally, 284. (2) \\'hence Derived, 284. (3) Applicability of Constitutional Limitations to the Pow- ers of the States, 284. (b) Limitations Contained in the First Ten Amend- ments, 284. (c) Limitations Contained in the War Amendments, 285. c. Division of Powers between the Federal and State Govern- ments, 285. (3) Exclusive Powers of Federal Government, 285. (b) Jurisdiction in the District of Columbia and Places under Exclusive Federal Control, 285. (c) Exclusive Control and Disposition of Property, 285. (4) Exclusive Powers of the States, 286. (b) Local Municipal Jurisdiction, Sovereignty and Eminent Domain, 286. (c) Persons and Property within State Limits, 287. (bb) To Define Property, Prescribe the Tenures Therein, and Regulate Its Descent, Dis- tribution and Transfer, 287. ^ (e) State Courts; Their Constitution, Jurisdiction and Procedure, 288. (f) To Define and Punish Crime, 289. (g) Actions for Injuries to Person or Property, 289. (5) Concurrent Powers of State and Federal Governments, 290. (b) As to Subject flatter, 290. (aa) General Principles, 290. (bb) Illustrations, 290. (bbb) The Taxing Power, 290. (ccc) Foreign and Interstate Commerce. 29L iggg) Enforcement of Federal Law, 291. (6) Each Government Supreme within the Scope of Its Authority, 292. (a) Generally, 292. (b) Neither Government to Intrude upon the Juris- 265 CONSTITUTIONAL LAW. Vol. IV. diction. Interfere with the Operation, nor Burden the Instrumentalities of the Other, 292. (aa) Generally, 292. (bb) Encroachment through Implied or Con- structive Powers, or through Strained or Unusual Construction, 292. (cc) State Encroachment upon Federal Power ■and Prerogatives, 292. (bbb) State Interference with Proceedings in Federal Courts, 292. (fff) State Encroachment through Exercise ^ of Taxing Power, 293. (aaaa) Generally; the Power to Tax the Power to Destroy, 293. (dddd) Taxation of Property Owned by Federal Government, 293. (jjjj) Telegraph Companies Employed as Federal Agencies ; Messages Sent by the United States, 293. (mmmm) Limitation of Doctrine, 293. (aaaaa) Validity of Tax Dependent upon Its Effect, 293. (ggg) State Obstruction of Rights under Federal License, 293. • (iii) State Encroachment through the Exer- cise of the Police Power, 294. (dd) Federal Encroachment upon the States, 294. (bbb) Federal Government Not to Control the Power nor Review the Discre- tion of State Legislatures, 294. (ccc) Power of Federal Government to Con- trol or Revise the Proceedings of State Courts. 294. (ddd) Federal Encroachment upon the States through the Exercise of the Taxing Power, 295. (aaaa) Generally, 295. (g&g) Power of Federal Courts to Restrain State Officers Acting under Uncon- stitutional Laws, 296. (hh) Supremacy in Case of Conflict between State and Federal Powers, 296. d. Separation of Departments and Distribution of Powers, 297. (1) Power of Body Politic with Respect to Distribution of Powers, 297. (3) The Departments Separate; None to Encroach upon or Exercise the Powers of Another, 297. (a) Generally, 297. (b) Legislative Exercise of Judicial Powers, 297. (aa) Generally, 297. (bb) What Constitutes, 297. (aaa) Legislation Affecting Pending Suits or Judgments Rendered, 297. (eeee) Statute Amending, Overruling or Setting Aside Judgment or Decree, 297. 266 Vol. IV. CONSTITUTIONAL LAW. (bbb) Legislative Judgments and Decrees, 298. (aaaa) Generally, 298. (ccc) Legislative Construction of Statutes, 298. (c) Exercise of Legislative or Political Functions by the Judiciary. 298. (aa) Generally as to Judicial Legislation, 298. (cc) Generally as to International Relations; De- termination of Rightful Sovereign or Government, 298. (kk) The Power of Taxation Not Judicial, 299. (qci) Regulation of Public Service Corporation, Including Regulation of Rates, 299. (rr) Exercise of Administrative Functions in Carrying Decrees into Effect, 300. (d) Power of Congress to Impose Legislative or Executive Duties upon the Judiciary, 300. (aa) Generally, 300. (e) Power to Impose Judicial Functions upon Non- judicial Tribunals, 300. (4) The Departments Independent and Co-Ordinate; None to Coerce or Control Another, 300. (b) Independence of the Legislative Branch, 301. (aa) Power of Judiciary to Declare Statutes Un- constitutional, 301. (bb) Judicial Control of Legislative Discretion, 304. (aaa) Generally, 304. (bbb) Legislative Discretion as to Occasion or Necessity, Choice of Means, etc., 305. (cc) Motives of Legislature Not Subject to Ju- dicial Enquiry, 305. (ff) Where Statute Otherwise Unobjectionable Is Unfaithfully Administered, 306. (c) Independence of the Executive, 306. (bb) Judicial Control of the Executive, 306. (aaa) The Federal Executive and His Sub- ordinates, 306. (bbb) State Executive Officers. 307. e. Delegation of Constitutional Powers, 308. (1) Devolution of Power by One Department upon An- other, 308. (c) Devolution of Judicial Functions upon the Legis- lative and Executive Departments, 308. (2) Delegation of Powers bv the Legislative Departments, 308. (a) By Congress, 308. (aa) Generally, 308. (ee) Exceptions and Limitations; Statutes De- pendent upon the Discretion of the Exec- utive, etc., 308. (b) Delegation of Power by State Legislative Bodies, 309. (bb) To Boards, Commissions and Similar Agencies. 309. f. The Legislative Departments, 30'). CONSTITUTIONAL LAW. Vol. IV. (1) Legislative Department of the Federal Government, 309. (h) Legislative Powers of Congress, 309. (bb) Constitutional Limitations upon Legislative Powers, 309. (aaa) Generally, 309. (dd) Particular Powers of Congress, 309. (iii) To Define and Punish Crime, 309. (qqq) Power to Borrow Money and Provide a Currency, 309. (cccc) Of the Power to Provide a Cur- rency, 309. (ddddd) Power to Protect Currency and Secure the Benefit Thereof, 309. (eeeee) Power to Coin Money, Emit Bills of Credit, and Prescribe a Legal Tender, an Exclusive Power, 310. (2) State Legislative Departments, 310. (a) Nature and Scope of Powers, 310. (aa) Generally, 310. (b) Constitutional Limitations upon Legislative Pow- ers, 310. (ff) Powers Restricted to State Limits, 310; {gg) Power to Barter Sovereign Rights or Bind Succeeding Legislatures, 31 L 4. Equality of the States, 311. 5. The Federal Guaranty of Republican Government to the States and Protection against Domestic Violence, 311. a. Sense in Which Term "State" L^sed in This Connection, 311. b. Republican Form of Government Defined, 311. d. Right and Duty of Federal Government to Intervene for Pur- pose of Suppressing Violence and Maintaining Republican Form of Government, 311. (2) Political Department Charged with Duty of Enforcing Guaranty, 311. 6. New States and Admission into the L'inion, 311. b. Equality of States upon Admission into the Union, 311. (1) Generally, 311. (2) Power of Congress to Impose Conditions Incompat- ible with the Equality of the State as a Member of the Union, 311. (3) Efifect of Admission upon Laws and Ordinances Re- specting the Territories, 313. 7. The Union Indissoluble; the States Indestructible, 313. a. The Union Indissoluble, 313. (1) Generally, 313. b. The States Indestructible, 314. 9. Relations of the States to One Another, 314. a. In What Respects States Foreign to One Another. 314. (2) No State to Exercise Its Legislative or Judicial Pow- ers within the Limits of Another, 314. VII. Equal Protection of the Laws; Class Legislation, 315. A^. Equal Protection as Guaranteed by the Due Process Clause of the 268 Vol. IV CONSTITUTIOXAL LAW. Fifth Amendment, 315. B. Equal Protection as Guaranteed by the Fourteenth Amendment, 316. 1. Persons Protected, 316. a. Citizens and Aliens, 316. b. Corporations, 316. c. Protects Only Those Persons and Corporations within the Ju- risdiction of the State, 317. 2. Nature and Object of the Guaranty, 317. c. Refers to Infringement by the States ; Not by Individuals, 317. f. As a Limitation upon the Police Power, 318. g. Has No Concern with the Impolicy or Injustice of Legisla- tion, 318. h. Equality Rule Does Not Require Statute to Operate Indis- criminately; Admits of Classification, 319. (1) Generally, 319. (5) Nor in All Portions of the Same State, 319. (6) Nor in All Portions of the Same City, 319. (7) But Requires Uniformity as to All in Like Circum- stances within the Sphere of Its Operation, 320. (8) Classification Must Be Reasonable ; Arbitrary and Hostile Classification Forbidden, 320. (9) Rigid Equality Not Required; Legislature Permitted a Wide Discretion, 321. i. Equality Rule Forbids That Individual Shall Be Subjected to xA.rbitrary Exercise of Power, 324. (4) Arbitrary and Oppressive Administration of Statutes, 324. 3. Regulation of Business, Trade, Occupation or Profession, 324. a. Generally, 324. b. Right to Pursue Lawful Occupation, Acquire and Dispose of Property, without Discrimination, 324. b 1/2. Distinctions Based upon Sex, 325. b 1/4. Fraudulent and Voluntary Conveyances, 326. b 1/8. Distinctions Based upon the Degree of Evil, 326. d 1/2. Securing Payment of Wages Promptly and in Money, 327. f. Eight Hour Laws, 327. h. Regulation of Rates, 327. i. Abolishing the Doctrine of Fellow S.ervants, Z27. i 1/2. Abolishing the Doctrine of Comparative and Contrib- utory Negligence, 328. j. Particular Business, Occupation or Profession, 328. (2) Laundries, 328. (4) Imitation and Adulterated Food Stufifs, 328. (4 1/2) Other Imitations and Adulterations, 328. (5) Practice of Medicine, 329. (6) Manufacture and Sale of Intoxicating Liquors, 329. (7) Insurance, 329. (9) Dealing in Futures, 329. (14) Railroads, 329. (14 1/2) Street Railroads, 329. (16) Banks and Banking, 329. (17) Sale of Patented Articles, 329. (18) Mines and Mining; Mineral Waters, Oil, Gas. etc.. 329. 269 CONSTITUTIONAL LAW. Vol. IV. (19) Advertising on Streets, in Public Conveyances, etc., 329. (20) Drumming and Soliciting on Trains, about Railway Sta- tions, etc., 329. (21) Telegraphs and Telephones, 329. 4. As Requiring Equal and Impartial Justice, 330. a. Generally in Civil Proceedings, 330. (1) Generally, 330. (4) Change of Venue; Transfer of Cause, etc., 330. (4 1/2) Right of Action or Defense, 331. (5) Statutes Respecting the Rules of Evidence, 331. (7) Laws Respecting Damages and Penalties, 2)Z2. (8) Statutes Awarding Attorney's Fees against Certain Classes of Defendants, 332. d. In Criminal Proceedings, 333. (1) Generally, 333. (2) Constitution of Grand Jury, ?>?)?). (5) Rules of Evidence; Absent Witnesses, 333. (6) Mode of Trial, 334. • (8) Unequal Punishment, 334. f. Equal Protection as Regards the Right of Review by New Trial, Appeal, Writ of Error, etc., 335. 5. As Requiring Equal and Uniform Taxation, 335. a. Prescribes No Iron Rule of Equal Taxation, 335. c. State May Adjust System in All Reasonable and Proper Ways, 335. d. Permits Classification and Diversity in Taxation, 336. e. Does Not Forbid Exemptions, 339. f. Limitations upon Powers of Adjustment and Classification, 339. (1) Generally, 339. (2) Classification Not to Be Arbitrary; Hostile Discrimina- tions Forbidden, 339. (3) State Permitted a Wide Discretion, 340. (4) Statute Not Invalid Because of Mere Inequality of Re- sults, 340. f 1/2. Failure to Enforce Law as to Other Taxpayers, 340. g. Special Assessments, 341. (1) Generally as to the Power of the Legislature to Appor- tion Public Burdens, 341. (2) Requiring Public Service Companies to Bear Expense Incident to Abolition of Crossings, Removal of Tracks, Pipes, etc., 341. G. Special, Private and Local Acts; Class Legislation, 341. 2, Special and Exclusive Franchises, Powers and Privileges, 341. d. Prohibition Contained in Organic Act of Territory, 341. VIII. Vested Rights and Retrospective Legislation, 341. A. What Rights Are Vested, 341. 4. Title to Public Office and Emoluments Thereof, 341. 5. Vested Rights under Treaties, 342. 6. Vested Rights in Rule or Policy of Law, 343. 11. Rights under Corporate Charters, 343. a. Generally ; Charter a Contract, 343. b. Charter Rights Subject to Police Powers, 343. 12. Same — Franchises and Privileges, 343. 270 Vol. IV. CONSTITUTIONAL LAW. 18. Property Rights Jure ]\Iaritii, 344. 19. Right to Dispose of Property by Will ; Rights of Heirs, Devisees, etc., 344. 21. Interest or Estate in Profession or Occupation, 345. 26. Riparian Rights, 345. 27. Vested Rights under Contracts, 345. 28. Citizenship as a Vested Right, 345. C. What Constitutes Impairment of Vested Rights, 345. 2. Impairment by Legislative Construction of Statutes, 345. 8. Retrospective Tax Laws ; Collection of Back Taxes, 345. 11. Laws Affecting Rights of Action and Defenses, 345. a. Rights of Action, 345. b. Defenses, 346. 12. Vested Rights under Judgments and Decrees, 346. 13. Laws Touching Remedies and Procedure, 346. e. Retrospective Statutes of Limitations, 346. (1) Statutes Limiting Time for Bringing Action, 346. f. Laws Affecting the Rules of Evidence, 347. IX. Due Process of Law, 348. X. Impairment of the Obligation of Contracts, 349. XI. The Rights of Life, Liberty, Private Property and the Pursuit of Happiness, 349. XrV. Justice without Denial, Purchase or Delay, 349. XVII. Political Rights and Privileges and Their Protection, 349. A. Of the General Rights and Privileges Pertaining to Citizenship, 349. 2. Citizenship in the States and the Protection Afforded by Art. 4, § 2, of the United States Constitution, 349. a. Persons Entitled to Invoke the Protection of Art. 4, § 2, 349. (6) Corporations, 349. c. Privileges and Immunities Secured to Citizen by Art. 4, § 2, 349. (4) Right to Fish or Fowl in Public Waters of Another State, 349. (7) The Right to Engage in Trade, Commerce or Lawful Business, 349. (10) The Right to Bring Actions; Remove Causes, 350. (12) As to Diverting Waters of Interstate Stream, 350. 3. Citizenship of the L^nited States, 351. a. Generally, 351. b. Citizenship under the Fourteenth Amendment and the Privi- leges and Immunities of United States Citizenship, 351. (1) Who Are Citizens under the Fourteenth Amendment, 351. (2) Of the General Object and Purpose of the Fourteenth Amendment, 351. (a) To Define Citizenship and Confer the Same upon the Negro Race, 351. (c) Police Powers Remain Unrestricted. 351. (d) Protection of Life, Liberty and Property Rests Pri- marily with the States, 351. (e) Provides Additional Security against State Infringe- ment; but against State Infringement Only, 352. 271 COXSTITUTIOKAL LAW. Vol. IV. (f) Privileges and Immunities Clause Protects Only the Privileges and Immunities Pertaining to Citizen- ship of the United States, 352. (3) Privileges and Immunities of United States Citizenship, 352. (a) Privileges and Immunities Defined, 352. (b) Rights Protected bv the First Ten Amendments, 352. (i) Access to All the Courts; Removal of Causes, 353. (n) Right to Pursue Ordinary Trade or Calling, 353. (o) Equal Protection of the Laws; Equal Taxation, etc., 353. XVIII. Protection to Persons Accused of Crime, 354. A. Persons Protected, 354. 2. Residents in the Territories, 354. D. Requirement as to Presentment or Indictment in Capital and Infamous Cases, 354. 1. General Nature and Purpose of Requirement, 354. 2. Not a Restriction upon the States, 354. 4. Persons Protected, 354. c. Residents within the Territories, 354. E. Right to Be Informed of Nature and Cause of Accusation, 354. 1. S'xth Amendment Not a Limitation upon State Power, 354. F. Right to Confront Accusers and Witnesses, 354. 1. Provision Not Applicable to Trials in State Courts, 354. 2. General Object and Purpose of the Constitutional Guaranty, 354. 4. Exceptions and Limitations to Constitutional Guaranty. 355. a. Generally, 355. c. Specific Exceptions and Limitations, 355. (6) Names of Witnesses Appearing before Grand Jury, ZSd. (7) Upon Suggestion of Diminution of Record, 355. (8) Waiver of Consent. 355. G. Right to Speedy Trial, 355. 2. Under the Constitution, 355. c. Implies the Right to a Trial Itself, 355. I. Assistance of Counsel. 356. L. Self-incrimination, 356. 2. Provision in the Fifth Amendment Not Applicable to the States, 356. 3. Who jMay Invoke Benefit of This Provision, 356. a. Witness Need Not Be a Party Defendant, 356. b. Distinctions between Natural Persons and Corporations, 356. b ^. As Dependent upon Capacity in \Miich Books Are Held; Right of Corporate Officers to Refuse to Produce Cor- porate Books, ZS7. c. A Personal Privilege. 359. 4. In \Miat Proceedings Applicable, 359. 5. What Constitutes a Violation of the Constitutional Principle, 359. b. Seizure or Compulsory Production of Private Books and Papers to Be Used in Evidence, 359. c. Compelling Accused to Stand LTp, Walk before Jury, etc., 359. c Yz. Compelling Bankrupt to Produce Books and Papers, 360. c ]/4. Compelling Publicity as to Tax Returns, 360. 272 Vol. IV. COXSTITUTIONAL LAW. 25-31 d. Exceptions and Limitations, 360. (4) Immunity Statutes, 360. (5) Waiver of Privilege, 361. (6) Witness Taking Stand in His Own Behalf; Cross-Exam- ination, Impeachment, etc., 362. M. Excessive Bail or Fines ; Cruel and Unusual Punishment, 364. 2. Excessive Fines ; Cruel and Unusual Punishments, 364. c. What Constitutes Cruel or Unusual Punishment, or Excessive Fine, 364. XIX. Ex Post Facto Laws and Bills of Attainder, 364. C. Definitions and General Principles, 364. 1. Ex Post Facto Laws, 364. d. Refer Only to Crimes, 364. E. Rule of Construction, 365. I. Infringement of the Constitutional Guaranty, 365. 1. Laws Making That Criminal Which \\'as Not So in Its Inception. 365. b 3' J- Penalizing the Carrying Out of Contracts \Miich \\'ere Lawful When Entered into, 365. 3. Increase of Punishment for Subsequent Offenses, 366. ZYi. Indeterminate Sentence Acts, 366. CROSS REFERENCES. See the title Constitutional Law, vol. 4, p. 1, and references there given. See ante, Aliens, p. 18; Appeal and Error, p. 34; Autrhfois, Acquit and Convict, p. 161 ; Bankruptcy, p. 168; Boundaries, p. 206; Chinese Exclusion Acts, p. 232 ; Citizenship, p. 235 ; Civil Rights, p. 236 ; Common Law, p. 245 ; post, Corporations; Courts; Criminal Law; District oe Columbia; Dub Process oe Law ; Eminent Domain ; Extradition ; Foreign Judgments, Records and Judicial Proceedings ; Grand Jury ; Habeas Corpus ; Health ; Impairment oe Obligation of Contracts; Indians; Injunctions; Intoxi- cating Liquors; Jurisdiction; Jury; Labor; Lotteries; Military Law; Monopolies and Corporate Trusts; Navigable Waters; Postal Laws; Public Lands; Religious Societies; Removal oe Causes; Revenue Laws; Special Assessments ; States ; Statutes ; Succession Taxes ; Summons and Process; Territories; Treaties; War; Water Companies and Waterworks; Waters and Watercourses; Wharves and WharEingers; Witnesses. I. Definition and Nature of a Constitution. Permanent in Design. — See note 5. III. Construction of Constitutions. A. By Whom Construed — 2. State Constitutions. — The interpretation of a state constitution and the conformity of an enactment of the state legislature to that constitution are questions solely for the consideration of the state courts, whose decision thereon concludes the federal supreme court. That court has no authority, upon a writ of error to a state court, to declare a state enactment void on the ground that it is in conflict with the state constitution, but is lim- ited to the consideration of the question whether or not it is in conflict with the federal constitution.--^'^ 25-5. Permanent in design.— Wcems i\ 161, 52 L. Ed. 1.51, 28 S. Ct. 40; Seaboard United States, 217 U. S. 349, 54 L. Ed. 793, Air Line Railway v. Seegers. 207 U. S. 73, 30 S. Ct. 544. 52 L. Ed. 108, 28 S. Ct. 28; Palmer v. 31-25a. Hunter v. Pittsburg, 207 U. S. Texas, 212 U. S. 118, 131, 53 L. Ed. 435, 12 U S Enc— 18 273 37-53 CONSTITUTIOXAL LAW. Vol. IV. Conflict of State Law with Federal Constitution — Acceptance of Con- struction of State Court. — See post, "Power of Judiciary to Declare Statutes Unconstitutional," VI, D, 3, d, (4), (b), (aa). B. General Rules and Principles of Construction — 3. Construction in Tiir; Light of CoNTEMPORiVNEous History and Existing CoKtditions. — Lan- guage Embraces New Conditions as They Arise. — Legislation, both stat- utory and constitutional, is enacted, it is true, from an experience of evils but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to ■approach immortality as nearly human institutions can approach it." The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, con- templation can not be only of what has been, but of what may be. LTnder any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights de- clared in words might be lost in reality. And this has been recognized. The meaning and vitality of the constitution have developed against narrow and re- strictive construction."* 2a 10. CoNFucTiNG AND INEFFECTIVE PROVISIONS. — Where fundamental prin- ciples of the constitution are of equal dignity, neither should be so enforced or construed as to nullify or substantially impair the other."^^ 17. Construction Strict or Liberal, When. — Limitations upon Powers of Congress. — W^hile tl\e provisions granting powers to congress are to be liberally construed in order to enable it to carry into effect the powers conferred, it is equally true that prohibitions and limitations upon those powers should be fairly and reasonably enforced. ^^^^ IV. Operation and Effect. B. Supremacy as the Law — 2. The Federal Constitution, Laws and Treaties — a. Generally. — The federal constitution, it is only elementary to say, is the supreme law of the land, and all its applicable provisions are binding upon all within the territory of the L^nited States. Wlienever its protection is in- 29 S. Ct. 230; Kiernan v. Portland, 223 States, 217 U. S. 349, 54 L. Ed. 793, 30 S. U. S. 151, 56 L. Ed. 386, 32 S. Ct. 231. Ct. 544, 551. Constitutionality of the initiative and 49-79a. Conflicting and ineffective pro- referendum in Oregon.— For example, visions.— Dick v. United States, 208 U. S. questions as to the validity under the state 340, 353, 53 L. Ed. 520. 28 S. Ct. 399. constitution of Oregon of the Laws of For example, m regulatmg commerce 1907, chap. 226, authorizing the voters of with the Indian tribes, congress must a municipality to resort to the initiative have regard to the general authority to amend its charter, and as to the reg- which the state has over all persons and ularity of the proceedings leading up to things within its jurisdiction. On the the adoption of an amendment, and of other hand, the authority of the state the proceeding culminating in the adop- "^ust not be so exerted as to impair the tion of a particular ordinance, are not POwer of congress to regulate commerce federal, and hence will not support a with the Indian tribes. Dick v. United writ of error from the federal supreme States, 208^ U. S. 340, 353, 52 L. Ed. 520, court to a state court. Kiernan v. Port- ^^ 5- ^t. .''.99. _ _ land, 223 U. S. 151, 56 L. Ed. 386, 32 S. Ct. 53-96a. Limitations upon powers of 231 congress. — Keller v. United States, 213 o^ .„ T o u A- U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470, cit- 37-42a. Language embraces new condi- r> ■ u ^ tt -i-^a c*^<^«^ ioi tt c tlonc! a^ tViPv ar^m<; 7, TTnitPfl '"^ Fairbank V. United States, 181 U. S. tions as they anse.— Weems v. United ^gg^ ^^ j^ ^^ gg^^ 2i S. Ct. 648. 274 Vol. I\'. CONSTITUTIONAL LAW. 58-73 j^oked, the courts of the United States, both state and federal, are bound to see that rights guaranteed by the federal constitution are not violated by legislation of the state.i-'^ Unconstitutionality Not Cured by Inserting- Constitutional Requisites in Judgment. — The want of the requisite provisions in a statute to render it constitutional can not be cured by inserting them in judgments under it. The law itself must save the parties' rights, and not leave them to the discretion of the courts as such.^^^ c. Supreme over State Lazvs, Officers and Agents as ffV// as Federal — (1) Generally. — See note 22. Including New States and Territories. — The enactment of a law by a ter- ritorial government is the exercise of an authority under the United' States within the meaning of that provision of the federal constitution which declares the supremacy of the authority of the national government within the limits of the constitution."'^^ (2) Supremacy of Federal Constitution, Lazes and Treaties in Case of Con- flict zvitJi Resewed Powers of the States. — See post, "Supremacy in Case of Conflict between State and Federal Powers," VI, D, 3, c, (6), (b), (hh). d. Limitations upon the Supremacy of the Federal Constitution, Treaties and Laws — (2) Limitations upon Treaties as the Supreme Lazo- — (b) Supremacy over Acts of Congress. — See note 35. e. Duty of Courts to Uphold and Maintain the Supremacy of the Federal Con- stitution. Treaties and Lazes. — See note 40. F. Self-Executing Provisions. — See note 60. G. Who May Raise Constitutional Questions — 1. GexiCrally. — One who is not harmed by the operation of a statute alleged to be unconstitutional is not entitled to draw in question or test its validity, and it is the settled law of the federal supreme court that one who would strike down a state statute as vio- lative of the federal constitution must bring himself, by proper averments and showing, within the class as to whom the act thus attacked is unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, 58-12a. Supremacy of the federal con- Cherokee Tobacco, 11 Wall. 616, 20 L. stitution, laws, and treaties. — Southern R. Ed. 227: Fong Yue Ting v. United States, Co. z: Greene, 216 U. S. 400, 54 L. Ed. 149 U. S. 698, 720, 37 L. Ed. 90.5, 13 S. Ct. 536, 30 S. Ct. 287. 1016: Ward :■. Race Horse. 163 U. S. 504, 58-13a. Unconstitutionality not cured 511, 41 L. Ed. 244, 16 S. Ct. 1076, Draper v. by inserting constitutional requisites in United States, 164 U. S. 240,- 243, 41 L. judgment.— Louisville, etc., R. Co. v. Cen- Ed. 419, 17 S. Ct. 107. tral Stock Yards Co., 212 U. S. 132. 144. An act of congress passed after a 53 L. Ed. 441, 29 S. Ct. 246. See. also, treaty takes effect must be respected and Security Trust, etc., Co. v. Lexington, 203 enforced despite any previous or existing U. S. 323, 333, 51 L. Ed. 204: Roller z: treaty provision on the same subject. Holly. 176 U. S. 398, 409, 44 L. Ed. 520. Sanchez z: United States, 216 U. S. 167, 20 S Ct 410 54 L. Ed. 432. 30 S. Ct. 361. fin 22 «;iinrPmP ovpr «!tate laws of ^^-^^- ^"^y °^ COUrtS to uphold SU- 60-22. Supreme over state laws, ot- ^^emacy of constitution— Laws and trea- ricers and agents. — Adams Exp. Co. z\ ". c ,.1 r. r^ n.- „„ --y-ia n 1T1, »-,A 1- c 010 -o T -CA ties. — Southern R. Co. z\ Greene. 216 Commonwealth. 214 L. S. 218, o3 L. Ed. -r^ e ,nn -it -ca -q« qa c r*- o«7- n-.T nn o /- r' T) -A L . b. 400, o4 L. Lcl. d36. 30 b. L-t. iioi , 9/2, 29 S. Ct. 633: Southern R. Co. z'. Reid. o j t:^ i > t • u-r* r<^c«o ooi 999 TT Q ^91 ^A T JTA 9=7 Q9 Q Pf i^fi- Sccoud Employers Liability Cases, 223 222 U. S. 424, 56 L. Ed. 257. 32 S. Ct. 140; U. S. 1, 56 L. Ed. 327. 32 S. Ct. 169. ?rr? ^T^v^rLHo^i^'% ?«q''' ~~'^ 73-60.' Self-executing' pro;isions-Ilius- u. s. 1, Ob u lid. 6Zi. 6Z b. ^i. iby. trations— Provision for suits against state. 6_3-30a. Includmg new states and tern- _Const. 1870. providing that suits may tories. — Atchison, etc., R. Co. v. Sowers. i^g brought against the state in such 213 U. S. 55, 53 L. Ed. 695. 29 S. Ct. 397. manner and in such courts as the legisla- 65-35. Supremacy over acts of congress. ture may by law direct, is not self-execut- — An act of congress may repeal a prior ing. General Oil Co. v. Grain, 95 S. W. treaty as well as it may repeal a prior 824, 117 Tenn. 82, 121 .\m. St. Rep. 967, act. Ex parte Webb, 225 U. S. 663, 56 affirmed in General Oil Co. z\ Grain. 209 L. Ed. 1248, 32 S. Ct. 769, citing The U. S. 211, 52 L. Ed. 754, 28 S. Ct. 475. 275 74 CONSTITUTIONAL LAW Vol. IV. and so operates as to deprive him of rights protected by the federal constitu- tion. ^^^ 74-62a. Who may raise constitutional questions — Generally. — Southern R. Co. z'. King, 217 U. S. 524, 54 L. Ed. 868, 30 S. Ct. 594; Tyler v. Judges, 179 U. S. 405, 45 L. Ed. 252, 21 S. Ct. 206; Turpin v. Lemon, 187 U. S. 51. 60, 47 L. Ed. 70, 23 S. Ct. 20; Hooker v. Burr, 194 U. S. 415, 48 L. Ed. 1046. 24 S. Ct. 706; Hatch v. Reardon, 204 U. S. 152, 160, 51 L. Ed. 415, 27 S. Ct. 188; Lindsey v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337, citing Clark v. Kansas City, 176 U. S. 114, 118, 44 L. Ed. 392, 20 S. Ct. 284; » Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784; Collins V. Texas, 223 U. S. 288, 295, 56 L. Ed. 439, 32 S. Ct. 286; Brown-Forman Co. V. Commonwealth, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578, affirming Brown- Foreman Co. V. Kentucky, 125 Ky. 402, 101 S. W. 421; Lee v. New Jersey, 207 U. S. 67, 52 L. Ed. 106, 28 S. Ct. 22; Atlantic, etc., R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164; Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137; Laurel Hill Ceme- tery V. San Francisco, 216 U. S. 358, 54 L. Ed. 515. 30 S. Ct. 301; Engel v. O'Mal- ley, 219 U. S. 128, 55 L. Ed. 128, 31 S. Ct. 191; Grenada Lumber Co. v. Missis- sippi, 217 U. S. 433, 54 L. Ed. 826, 30 S. Ct. 535; Citizens' Nat. Bank v. Common- wealth, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532; Southwestern Oil Co. r. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496; Provident Institution for Savings v. Malone, 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661: Calder v. Attorney General, 218 U. S. 591, 54 L. Ed. 11Q3, 31 S. Ct. 122; District of Columbia z>. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560; New York, etc., R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304; S. C, 212 U. S. 500, 53 L. Ed. 624, 29 S. Ct. 309; Home Tel., etc., Co. v. Los Angeles, 211 U. S. ;i65, 280, 53 L. Ed. 176, 29 S. Ct. 50; Berea College v. Common- wealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33; Keeney v. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105; Waters- Pierce Oil Co. r. Deselms. 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270; Hammond Packing Co. v. Arkansas, 212 U. S. 322, 344, 53 L. Ed. 530, 29 S. Ct. 370; Murphy V. California. 225 U. S. 623, 56 L. Ed. 1229. 32 S. Ct. 697; Kentucky Union Co. V. Commonwealth, 219 U. S. 140. 55 L. Ed. 137, 31 S. Ct. 171; .Muminum Co. z'. Ramsey, 222 U. S. 251, 56 L. Ed. 185, 32 S. Ct. 76. "Unless appellant can show that he himself has been wrongfully included in the terms of the law, he can have no just ground of complaint." The same principle has been often announced by this court in many cases, the last instance being in Citizens' Nat. Bank v. Common- wealth an opinion handed down with. Citizens' Nat. Bank v. Commonwealth, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532; Gren- ada Lumber Co. v. jMississippi, 217 U. S. 433, 54 L. Ed. 826, 30 S. Ct. 535. Statute invalid as to other persons or classes — Possibility of unconstitutional construction on enforcement in other cases. — A judgment of a state court which does not so enforce a state statute as to deprive the party complaining of rights which are protected by the federal constitution will not be reversed in the supreme court of the United States be- cause such statute, when enforced against a class to which the party complaining does not belong, may work a deprivation of such constitutional rights. Judgment, State V. Lee (1905) 59 A. 1118, affirmed. Lee V. New Jersey, 207 U. S. 67, 52 L. Ed. 106, 28 S. Ct. 22. Same — New Jersey oyster laws. — For example, in a prosecution under the New Jersey statute for the illegal use of oys- ter dredges in the tidal waters of that state, the defendant can not object to the constitutionality of the statute upon the ground that the statute might be so construed as to infringe and penalize the mere navigation of such waters, in viola- tion of the 14th Amendment and the interstate commerce clause of the fed- eral constitution where it was shown at the trial that defendant was not engaged in merely navigating such waters, but was unlawfully engaged in dredging for oysters, and where the state court, in instructing the jury, construed the stat- ute as authorizing a conviction only in case they should find that the defendant was unlawfully engaged in taking oysters contrary to its provisions. Lee v. New Jersey, 207 U. S. 67, 52 L. Ed. 106, 28 S. Ct. 22. • _ Same objection to penal provisions where no penalty sought to be recov- ered. — Objections to the invalidity under the federal constitution of the provisions as to penalties in Gen. Laws Tex. 1905, c. 148, § 9, taxing wholesale dealers in oils, are not open in a civil suit brought by the state to recover the taxes so im- posed, where no penalties are sought to be recovered in that suit, and where the provision as to penalties is not so neces- sarily connected with the other parts of the statutes as to violate the entire act, even if that provision should be held to be void. Southwestern Oil Co. v. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496, affirmed in 100 Tex. 647, 103 S. W. 489. The validity of the penalties prescribed by the Mississippi anti-trust laws can not 276 Vol. IV. CONSTITUTIONAL LAW. 74 be challenged in a suit in which the state, instead of seeking to enforce the penalties prescribed by the act, contents itself with a bill in equity to dissolve an association which those laws condemned as a combination in restraint of trade. Grenada Lumber Co. v. Mississippi, 217 U. S. 433. 54 L. Ed. 826, 30 S. Ct. 535, affirming Retail Lumber Dealers' Ass'n f. State, 48 So. 1021. The penaltjr provisions are plainly sep- arable from the section under which such a combination is declared illegal. The penalty section not being invoked, the court is not called upon to give any opinion in respect to it. Grenada Lum- ber Co. V. Mississippi, 217 U. S. 433, 54 L. Ed. 826, 30 S. Ct. 535; Attorney Gen- eral V. Delaware, etc., Co., 213 U. S. 366, 417, 53 L. Ed. 835, 29 S. Ct. 527; South- western Oil Co. V. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. Same — Federal act imposing liability upon initial carrier. — The constitutional- ity of the act of Feb. 4, 1887, ch. 104, § 8, 24 Stat. 386 (U. S. Comp. Stat. 1901, p. 3154), as amended by act of June 29, 1906, ch. 3591, § 7, 34 Stat. 593 (U. S. Comp. Stat. Supp. 1909, p. 1163) appli- cable to interstate carriers and imposing upon the initial carrier liability for loss regardless of whether the same occurred on its portion of the route or upon that of a connecting carrier, can not be at- tacked upon the ground that it deprives the receiving carrier of its liberty to select its own agencies for a continuous route for the transportation beyond its own line, where it appears that in the instant case the defendant had selected its own agencies and connecting carriers and made its own arrangements and rates before receiving the shipment and of which the action arose. Atlantic, etc., R. Co. V. Riverside Mills, 219 U. S. 186, 55 I,. Ed. 167, 31 S. Ct. 164; followed in Louisville, etc., R. Co. v. Scott, 219 U. S. 209. 55 L. Ed. 183, 31 S. Ct. 171. Objections to statutes denying the equal protection of the laws — Corpora- tion can not object to statute which is in- valid only as to individuals or other cor- porations. — Where a statute is unconstitu- tional as to individuals, but not as to corporations, and is separable, so that it may be sustained as to corporations, they can not object to it on the ground that it is unconstitutional as applied to individuals. Berea College v. Common- wealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. Where the state court by its construc- tion treated the statute, in so far as its prohibitions were addressed to individ- uals, as separable from its requirements as to corporations, the want of con- stitutional power to include individuals within the prohibitions of the act, does not afTect the validity of the laws as to corporations. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 344, 53 L. Ed. 530, 29 S. Ct. 370. Same — Same — Kentucky act enforcing separation of races in schools. — The pos- sil)le invalidity, as applied to individuals, of the Kentucky acts of 1904, chap. 85, prohibiting the teaching of white and negro pupils in the same institution, can not be raised by a corporation, which desires to conduct a mi.xed school, where the highest court of the state considers the act separable, and while sustaining it in its entirety, gives an independent reason which applies only to corpora- tions. Berea College i'. Commonwealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. Same — Same — Arkansas act abolishing fellow servant rule. — A corporation oper- ating a railroad in the state can not challenge the validity of Act Ark. March 8, 1907, p. 162; abolishing the fellow serv- ant rule, because such statute may make an unconstitutional discrimination be- tween individuals and corporations en- gaged in mining, but not operating rail- roads. It is limited in its complaint to the effect of the statute on it, and can not appropriate the grievance that cor- porations engaged in mining, but not oper- ating railroads, may have on account of the distinction made between them and individuals. Aluminum Co. v. Ramsey, 222 U. S. 251, 56 L. Ed. 185, 32 S. Ct. 76. Same — Same — Oklahoma oil inspection act. — A contention that § 4 of the Okla- homa oil inspection act of 1899 was void because of the alleged unequal punish- ment therein provided for persons and corporations performing the same act; will not be considered since such section is clearly separable from the rest of the act, as held by the court below, and no wise affected the unlawful use within the territory of oil which did not conform to the standard fixed by the statute. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 174, 53 L. Ed. 453, 29 S. Ct. 270. Same — Same — Elkins act making inter- state carriers liable for acts of agents. — A corporate carrier engaged in interstate commerce has no standing to object that the last paragraph of § 1 of the Elkins act (32 Stat. 847) is unconstitutional m that it applies to individual carriers as well as those of a corporate character and attributes the acts of the agents of such individual carriers to them, thereby making the crime of one person that of another, and thus depriving the latter of due process of law and the presumption of innocence which the law raises in his favor. Moreover, this section of the act is separable, and even if the presumption thus created as to individuals were un- constitutional, the act would still remain valid as to corporate carriers. New York, etc., R. Co. T'. United States, 212 U. S. 277 74 CONSTITUTIONAL LAW. Vol. IV. V. System or Theory of Constitutional Government in General. A. State or Government Defined. — See, also, post, "Sense in Which Term 'State' Used in This Connection," \ I, D, 5, a. The definition of "a state" is 481, 53 L. Ed. 613, 29 S. Ct. 304; S. C, 313 U. S. 500, 53 L. Ed. 624, 29 S. Ct. 309. Same — Forfeiture of unlisted lands — Rights of subsequent purchasers. — Land owners who did not acquire their title until after the delinquencies had occurred can not claim to have been denied the equal protection of the laws by the ap- plication to them of the provisions of the act of Kentucky March 15, 1906, c. 22, art. 3, for the forfeiture of such lands to the state, because of the failure of the owners to list lands for taxation and pay the taxes thereon for certain speci- fied years. Kentucky Union Co. v. Com- monwealth, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. Same — Ordinance excepting certain ho- tels from regulations concerning pool rooms. — Only hotel keepers having less than twenty-five bedrooms are in a posi- tion to assail the validity of a discrimina- tion made in favor of larger hotels by a municipal ordinance forbidding the keep- ing of billiard or pool tables for hire or public use, but permitting hotel keepers having twenty-five or more bedrooms to maintain a billiard or pool room in which their regular and registered guests may play. Murphy v. California, 225 U. S. 623, 56 L. Ed. 1229, 32 S. Ct. 697. Same — Inheritance and legacy taxes. — The children of a decedent, who, because of their relationship, are assessed at the lowest rate fixed by N. Y. Laws, 1896, chap. 908, imposing a tax when property is transferred by deed intended to take effect at the death of the grantor, can not urge that such statute operates to deny the equal protection of the laws because transfers to collaterals and strangers in blood are taxed a higher rate. Keeney v. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105. Regulating practice of medicine, oste- opathy, etc. — Duty of complainant to show injury, to bring himself within the inhibi- tions of the statute, etc. — An osteopath whose constitutional rights are not in- fringed by the requirements of Tex. Laws, 1907, chap. 123, with respect to register- ing and licensing medical practitioners, can not complain that the statute may be unconstitutioTial in other cases, or as to followers of Christian Science, or others. Collins V. Texas, 223 U. S. 288, 56 L. Ed. 439, 32 S. Ct. 286. The requirements of Tex. Laws 1907, chap. 123, with respect to licensing and registering medical practitioners, which do not contemplate any inquiry into the applicant's knowledge of therapeutics or materia medica, do not infringe the rights, under U. S- Const., 14th Amend., of a person holding a diploma from a school of osteopathy, who has not presented this diploma to the board of medical ex- aminers created by the statute, or at- tempted to secure a license in any form. Collins V. Texas, 223 U. S. 288, 56 L- Ed. 439, 32 S. Ct. 286. Location of cemeteries — Rights of own- ers of other available tracts. — The avail- abilitj' for burial purposes of other large tracts of land within the limits of the city of San Francisco can not be alleged by a cemetery association owning a burial ground within those limits, to invalidate, under the federal constitution, an or- dinance forbidding the burial of the dead within the city and county of San Fran- cisco since, as regards such other lots the plaintiffs have no grievance. Decree (1907) 93 P. 70, 152 Cal. 464, 14 A. & E. Ann. Cas. 1080, affirmed. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. Kentucky act taxing shares of non- resident shareholders. — Only nonresident shareholders in a national bank can com- plain of the supposed invalidity, as to them, of the retroactive features of Ky. Act of March 21, 1900, making it the duty of certain officers of the bank to list its shares of stock for taxation, and requiring the bank to pay the tax, and a penalty for delinquency. Citizens' Nat. Bank v. Commonwealth, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532. Such an objection can not be made by one unaffected by the alleged invalid feature. Citizens' Nat. Bank v. Common- wealth, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532; Austin v. Aldermen, 7 Wall. 694, 19 L. Ed. 224; Supervisors v. Stanley, 105 U. S. 305, 26 L. Ed. 1044; The Win- nebago, 205 U. S. 354, 51 L. Ed. 836, 27 S. Ct. 509. New York act prescribing residence requirement for private bankers. — The constitutionality of a state statute pro- viding for the licensing of private banks can not be attacked, on the ground that it permits the licensing only of persons who have been residents of the United States for five years, by one who has been a resident for such length of time, and is therefore not affected by the pro- vision. (C. C. 1910) Engel V. O'Malley, 182 F. 365. Decree affirmed in Engel v. O'Malley, 219 U. S. 128, 55 L. Ed. 128, 31 S. Ct. 191. Massachusetts act requiring payment of inactive and unclaimed deposits to state treasurer — Right of bank to object. — A savings bank, so far, at least, as its rights 278 Vol. IV. CONSTITUTIONAL LAW. 81-93 found in the powers possessed by the original states which adopted the consti- tution.'^"'* B. Powers Possessed by Government. — Primarily, governments exist for the maintenance of social order. Hence it is that the obligation of the govern- ment to protect life, liberty and property against the conduct of the inditlerent, the careless, and the evil minded may be regarded as lying at the very foundation of the social compact. A recognition of this supreme obligation is found in those exertions of the legislative power which have as an end the preservation of social order and the protection of the welfare of the public and of the in- dividual. ^-^^ VI. Organization of Government in the United States. D. Government under the Constitution — 1. Dual Nature; of Govern- ment. — See notes 18, 19. 2. The United States as a Nation — a. Generally. — See note 21. are involved in those of its depositors, may raise the objection that property is taken without due process of law by Laws Mass. 1907, c. 340, providing that deposits which have remained inactive and unclaimed for 30 years, where the claimant is unknown or the depositor can not be found, shall be paid to the treasurer and receiver general, to be held b}^ him as trustee for the true owner or his legal representatives. Provident In- stitution for Savings v. Malone, 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661, affirming judgment Malone v. Provident Institu- tion for Savings in Boston, 86 N. E. 912, 201 Mass. 23. Repeal of corporate charter — Rights of bondholders — Right of directors to urge. —The directors of a corporation do not represent the bondholders, so as to urge the invalidity as to them of a statute repealing the corporate charter. Calder V. Attorney General. 218 U. S. 591, 54 L. Ed. 1163, 31 S. Ct. 122, affirming judgment People V. Calder (1908) 117 N. W. 314, 153 Mich. 724, 126 Am. St. Rep. 550. Kansas act regulating sale of black powder — Rights of importers, who may urge. — One who does not appear to have imported black powder from outside the state can not raise the question of the validity under the commerce clause of the federal constitution of the provisions of Laws Kan. 1907, c. 250, making it unlawful to sell, offer for sale, or deliver black powder for use in any coal mines in the state except in original sealed pack- ages containing 12J/2 pounds of powder. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137, affirming order Ex parte Williams, 98 P. 777, 79 Kan. 212. Drainage law; — Objections applicable only to unimproved property not avail- able to owners of improved property. — An abutting owner of property on which dwellings have been erected can not deny the validity of Act May 19, 1896, 29 Stat. 125, c. 206, creating a drain- age system in the District of Columbia, which affects only owners of unimproved "property. Judgment 29 App. D. C. 563, reversed. District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. Validity of provision for adoption of ordinance by direct vote — Not determined where ordinance not adopted in that man- ner. — The constitutionality of an ordi- nance prescribing rates can not be at- tacked upon the ground that, under the charter of the city, such ordinances are required, upon the petition of fifteen per cent of the electors of the city, to be submitted to the people for adoption or rejection, where the ordinance in ques- tion was not adopted in that manner. Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 280, 53 L. Ed. 176, 29 S. Ct. 50. 81-77a. State or government defined — In the constitutional sense. — Coyle v. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. See post, STATES. 82-83a. Powers possessed by government — To maintain social order, protect life and property, etc. — Chicago v. Sturges, 222 U. S. 313, 56 L. Ed. 215, 32 S. Ct. 92. For example, in the exercise of this power, it is competent for the state to im- pose upon municipal corporations within its borders an absolute liability for prop- erty destroyed by mob violence. Chicago V. Sturges, 222 U. S. 313, 56 L. Ed. 215, 32 S. Ct. 92. 91-18. Dual nature of government. — Coyle V. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. Federal government a part of the gov- ernment of each state. — Second Employ- ers' Liability Cases. 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, quoting Clafliin v. House- man, 93 U. S. 130, 136, 23 L. Ed. 833. 92-19. United States not a foreign sover- eignty — Operates upon states and people. —Second Employers' Liability Cases, 223 U. S. 1. 56 L. Ed. 327, 32 S. Ct. 169, quot- ing Claflin V. Houseman, 93 U. S. 130, 136. 23 L. Ed. 833. • 93-21. The United States as a nation. — Coyle f. Smith. 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. 279 97-101 CONSTITUTIONAL LAW. Vol. IV. c. Incidents of Sovereignty — (3) Power to Acquire, Govern and Dispose of Territory — (b) Status of Acquired Territory as Foreign or Domestic — (aa) Generally. — See note 36. (c) Government of Territory — (bb) Usage as to Conquered or Ceded Terri- tory— {di^id.) As to Private, Personal, and Property Rights; Continuation of Ex- isting La^i'S. — It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the mu- nicipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new gov- ernment or sovereign. By the cession, public property passes from one govern- ment to the other, but private property remains as before, and with it those mu- nicipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the polit- ical character, institutions, and constitution, and constitution of the new gov- ernment are at once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States, the laws of the country in support of an established religion, or abridg- ing the freedom of the press, or authorizing cruel and unusual punishments and the like, would at once cease to be of obligatory force without any declara- tion to that efl:'ect; and the laws of the country on other subjects would neces- sarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws afl:ecting the possession, use and trans- fer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal char- acter, the rule is general that a change of government leaves them in force un- til, by direct action of the new government, they are altered or repealed."***^ 97-36. Status of Porto Rico — With respect to requisitions for fugitives from justice. — Porto Rico is a completely or- ganized territory, although not a territory incorporated into the United States, and that there is no reason why Porto Rico should not be held to be such a territory as is comprised in § 5278, Rev. Stats., re- lating to requisitions for fugitive criminals. Kopel v. Bingham, 211 U. S. 468, 476, 53 L. Ed. 286, 29 S. Ct. 190. Status of Philippines within meaning of tariff laws. — The Philippine Islands are not "another country" within the meaning of the provision of the commercial con- vention with Cuba, December 17, 1903, granting to the island of Cuba a reduction of 20 per cent from the rates prescribed by the tariffs acts of the United States, and providing that such reduction shall continue preferential in respect to all like imports from other countries. Faber zf. United States, 221 U. S. 649, 55 L. Ed. 897, 31 S. Ct. 659. Status of Alaska — Within meaning of statute extending interstate commerce act, etc. — The status of Alaska is that of an or- ganized territory. Interstate Commerce Comm. V. Humbolt Steamship Co., 224 U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556. Alaska is a territory of the United States within the meaning of the Act of June 29„ 1906 (34 Stat, at L. 584, ch. 35.91, U. S. Comp. Stat. Supp. 1909, p. 1150), extend- ing the provisions of the interstate com- merce act to carriers engaged in the trans- portation of passengers or property from one state or territory of the United States to any other state or territory, or from one place in a territory to another place in the same territory. Interstate Commerce Comm. V. Humbolt Steamship Co.. 224 U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556. 101-44a, Usage as to conquered or ceded territory — Public and private rights of property, etc. — Continuation of existing laws.— Vilas ?•. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416, quoting, with ap- proval, Chicago, etc., R. Co. v. McGHnn, 114 U. S. 542, 546, 29 L. Ed. 270, 5 S. Ct. 1005, see the same language quoted with approval in Downes v. Bidwell, 182 U. S. 244, 298, 45 L. Ed. 1088, 21 S. Ct. 770. See, also, post, INTERNATIONAL LAW. That there is a total abrogation of the former political relations of the inhabit- ants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, con- stitution, or institutions of the substituted sovereign, lose their force, is also plain. Sanchez v. United States, 216 U. S. 167, 54 L. Ed. 432. 30 S. Ct. 367. But it is equally settled in the same public law that that great body of municipal law which regu- lates private and domestic rights contin- ues in force until abrogated or changed by the new ruler. Vilas ?'. Manila, 220 U., S. 345, 55 L. Ed. 491, 31 S. Ct. 416. 280 \^ol. IV COXSTITUTIOXAL LAW. 103 Private Property in Public Office in Ceded Territory. — It is true that a treaty negotiated by the United States is a part of the supreme law of the land, and that it is expressly provided in the treaty by which Porto Rico and the Philippines were acquired that it "can not in any respect impair the property or rights wliich by law belong to the peaceful possession of property of all kinds * * * of private individuals." But, clearly, those provisions have no refer- ence to public or quasi public officers and stations, the functions and duties of which it is the province of government to regulate or control for the welfare of the people, even where the incumbents of such stations are permitted, while in the discharge of their duties, to earn and receive emoluments or fees for serv- ices rendered by them. The words in the treaty, "property * * * of pri- vate individuals,"' evidently referred to ordinary private property, of present, ascertainable value, and capable of being transferred between man and man. It is inconceivable that the United States, when it agreed in the treaty not to impair the property or rights of private individuals, intended to recognize, or to feel itself bound to recognize, the salability of such positions in perpetuity, or to so restrict its sovereign authority that it could not, consistently with the treaty, abolish a system that was entirely foreign to the conceptions of the Amer- ican people, and inconsistent with the spirit of American institutions.'*'^^ Effect of Cession upon Government and Property of Municipal Cor- porations. — A municipal corporation is not totally dissolved as a mere con- sequence of military occupation or territorial cession.'*^^ In view of the dual character of municipal corporations there is no public reason for presuming their total dissolution as a mere consequence of military occupation or terri- torial cession. The suspension of such governmental functions as are obviously incompatible with the new political relations thus brought about may be pre- sumed. But no such implication may be reasonably indulged beyond that re- sult.^ec 103-46a. Private property in public of- fice in ceded territory. — Sanchez v. United States, 216 U. S. 167, 54 L. Ed. 4.32, 30 S. Ct. 361. Congress could, by the act of April 12, 1900 (31 Stat, at L. 7~, ch. 191), confiscate without compensation, so far as the fed- eral constitution is concerned, the office of solicitor of the courts of first instance of the capital of Porto Rico, lawfully pur- chased in perpetuity, prior to the occupa- tion of Porto Rico by the military author- ities of the United States, and the cession of that island to the United States. San- chez V. United States, 216 U. S. 167, 54 L. Ed. 432, 30 S. Ct. 361. The appellant, an inhabitant and citizen of Porto Rico, sought to recover from the United States the value of a certain office held by him in that island before and dur- ing the war with Spain, of which office, it was alleged, he was illegally deprived by the United States. "It is clear" said the court, "that claimant is not entitled to be compensated for his office by the United States because of its exercise of an author- ity unquestionably possessed by it as the lawful sovereign of the island and its in- habitants. The abolition of the office was not, we think, in violation of any provi- sion of the constitution, nor did it infringe any right of property which the claimant could assert against the United States." Sanchez v. United States, 216 U. S. 167, 54 L. Ed. 432, 30 S. Ct. 361. See O'Reilly de Camara v. Brooke, 209 U. S. 45, 49. 52 L. Ed. 676, 28 S. Ct. 439. 103-46b. Effect of cession upon govern- ment and property of municipal corpora- tions.— Vilas V. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416. 103-46C. Same.— Vilas v. Manila, 220 U. S. 345. 55 L. Ed. 491, 31 S. Ct. 416. Same — Public property of municipal cor- poration. — Public property belonging to the city of Manila as a m.unicipal corpora- tion can not be regarded as having passed to the United States under the cession by Spain of the Philippine Islands for a cash consideration, under the treaty of Paris of December 10, 1898, of all "buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Soain," especially in view of the further stipulation protecting and sate- guarding the property and property rights of municipal corporations precisely as were those of individuals. Vilas v. Manila, 220 U. S. 345, 55 L. Ed. 491. 31 S. Ct. 416. 281 107-122 CONSTITUTIONAL LAW. Vol. IV. (cc) Power of Congress to Govern Territory — (bbb) Nature and Extent — (aaaa) Generally. — Congress Possessed of Plenary Power. — Congress, in the government of the territories, as well as of the District of Columbia, has plenary power, save as contracted by the provisions of the constitution.*^!'^ (cccc) Form and Character of Government Which Congress May Establish — (aaaaa) Generally. — The form of government which congress shall establish for the territories is not prescribed,^^'^ and need not be the same in all the ter- ritories.*'^'* (dddd) Pozvers of Territorial Governments. — Territorial Enactments as the Exercise of an Authority under the United States. ^ — The enactment of a law by a territorial government is the exercise of an authority under the United States^ within that provision of the federal constitution which declares the supremacy of the authority of the national government within the limits of the constitution.^'^ Defined and Limited by Organic Act — Prohibition against Granting Special Privileges. — A provision in an organic act that the territorial legis- lature shall not grant private charters or special privileges, but may enact gen- eral incorporation acts, forbids the granting of especial privileges by any form of legislative action, and not merely the conferring of such privileges as a part of the grant of a forbidden private charter. i"'' The assent of congress to the grant of an especial privilege by the territorial legislature, contrary to the ex- press provisions of the organic act, can not be implied from its failure to dis- approve such enactment.!!^ Rightful Subjects of Legislation — Illustrations. — See note 20. 107-61a. Congress possessed of plenary power. — Interstate Commerce Comm. v. Humbolt Steamship Co., 224 U. S. 474, 56 L. Ed. 849, 32 S. Ct. 55G. 108-63a. Form and character of terri- torial government. — Interstate Conmicrce Comm. V. Humbolt Steamship Co., 224 U. S. 474, oG L. Ed. 849, 32 S. Ct. 556. 108-66a. Need not be the same in all the territories. — Interstate Commerce Comm. V. Humbolt Steamship Co., 224 U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556. 121-9a. Territorial enactments as the exercise of an authority under the United States. — Atchison, etc., R. Co. v. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. 121-lOa. Defined and limited by organic act — Prohibition against granting special privileges. — Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. The granting of especial privileges by any form of legislative action, and not merely the conferring of such privileges as a part of the grant of a forbidden private charter, was what was prohibited by the provision of the Washington Or- ganic Act of March 2, 1867 (14^' Stat, at _L. 426, chap. 150), that the territorial leg- islature should not grant private charters or especial privileges, but might enact general incorporation acts. Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225. 32 S. Ct.^147. The generic prohil^ition against the granting of especial privileges, made by the Washington Organic Act of March 2, 1867, can not be construed as intended to forbid merely the creation of such privi- leges as a legislative grant of an ex- clusive right to ferries, bridges, etc., even if it be conceded that such grants were a common form of territorial legislative abuse prior to the adoption of that stat- ute, and were the generating cause of the insertion of this prohibition. Berryman V. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. A territorial statute giving perpetual succession to an incorporated educational institution, and endowing it with a per- petual exemption from taxation as to all Its propert}^ real and personal, grants an especial privilege within the meaning of the provisions of the Washington Or- ganic Act of March 2, 1867, that the ter- ritorial legislature shall not grant private charters or especial privileges, but may enact general incorporation acts. Berry- man V. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. 121-lla. Same — Assent of congress not implied from failure to disapprove. — Berryman v. Board, 222 U. S. 334, 56 L- Ed. 225, 32 S. Ct. 147, following Clayton V. Utah Territorv, 132 U. S. 632, 642, 33 L. Ed. 455. 10 S. Ct. 190. 122-20. Rightful subjects of legislation — Elements of actions ex delicto — Right to supersede common-law doctrines. — Au- thority to legislate concerning personal injuries and rights of action therefor was conferred upon the territory of New Mexico by the provisions of the Organic Act of September 9, 1850. extending such 283 Vol. IV. CONSTITUTIONAL LAW. 124-130 (eeee) Control of Territorial Government by Congress. — Vitality of Legis- lation Not Dependent upon Approval by Congress. — The effect of a pro- vision in an organic act establishing a territory that, "All of the laws passed by the legislative assembly and governor shall be submitted to congress of the United States, and, if disapproved, shall be null and of no eft'ect," is merely to reserve to congress revisory power over territorial legislation, and it does not operate to render laws duly enacted and within the legislative power of the terri- tory null and void from the beginning, upon their annulment by congress.^^^ (d) Effect of Constitution itpon Ordinances of the Old Confederation. — See note 27. 3. Generally of the Powers of the State and Federal Governments — a. Pozi-ers of the Federal Government — (2) Limited in Number and Scope. — See note 43. authority to all rightful subjects of legis- lation consistent with the constitution of the United States, although such act also provides that the constitution and all laws of the United States which are not lo- cally inapplicable shall have the same force and efifect within the territory as elsewhere within the United States. Atchi- son, etc., R. Co. V. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. The territory of New Mexico has the right which each state has to pass laws regulating recovery for injuries incurred within the territory. Martin v. Pittsburg, etc., R. Co., 203 U. S. 284, 5J L. Ed. 184, 27 S. Ct. 100. (This is under the principle that each state has the right to prescribe what shall constitute actionable wrongs justifiable in its courts and among its in- habitants, and under the principle that there is no vested right in an individual in the rules of law respecting these subjects.) Atchison, etc., R. Co. v. Sowers, 213 U. S. 55. 53 L. Ed. 695, 29 S. Ct. 397. Section 7 of the Organic Act of the territory of New Mexico (Comp. L. 1897, p. 43) declaring, "That the legislative power of the territory shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act," conferred authority upon the territory to legislate concerning the subject of personal in- juries, and to pass the laws respecting rights of action of that character. And the right to supersede the common-law doc- trines in such cases and to enact statu- tory rules upon the subject was not af- fected by further provisions contained in § 17 of the organic act to tlie effect "Tha: the constitution r.nd all laws of the United States which are not locally inapplicable shall have the same force and eflfect within the said territory of New Mexico as elsewhere in the United States." Atrhi- scn, etc.. R. Co. v. Sowers. 213 TT. S. 55, 53 L. Ed. 605, 20 S Ct. 397. 124-26a. Vitality of acts not dependent upon approval of congress. — Atchison, etc., R. Co. V. Sowers. 213 U. S. 55. 53 L. Ed. 695, 29 S. Ct. 397. See, also. Miners' Bank v. Iowa, 12 How. 1, 8, 13 L. Ed. 867. The annulment b}' congress of terri- torial legislation confoimabl}' to the pro- visions of the Organic Act of September 9, 1850 (9 Stat, at L. 449, chap. 49 Comp. L. 1897, § 7. p. 43), establishing the terri- tory of New Mexico, that all territorial lav.s shall be submitted to congress, and, if disapproved, shall be null and or no ef- fect, does not relate back, so as to render invalid from the time of enactment, terri- torial laws duly enacted and v,-'thin the legislative power of the territory, but such laws remain in force until congress ex- erts its authority. . Otherwise rights ac- quired on the faith of territorial laws passed within the scope of the legislative power of the territory might be stricken dc'wn by the retroactive effect of an act congress annulling such legislatinr. Atchi- son, etc., R. Co. V. Sowers. 213 U. S 55, 53 L. Ed. 695, 29 S. Ct. 397. 124-27. Ordinance 1787 superseded by the constitution. — The ordinance 1787, as an instrument limiting the powers of government of the Northwest territory, and declaratory of certain fundamental principles which must find place in the organic law of states to be carved out of that territory, ceased to be, in itself, obligatory upon such states from and after their admission into the Union as states, except in so far as adopted by such states and made a part of the law thereof. This has been the view of this court, so often announced as to need no further argument. Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 33 S. Ct. 267; Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565; Permoli v. New Orleans, 3 How. 588, 11 L. Ed. 739; Escanaba Co. v. Chicago, 107 U. S. 678, 688. 27 L. Ed. 442, 2 S. Ct. 185. See, also, post,_ "Eflfect of Admission upon Laws and Ordinances Re- specting the Territories." VI, D, 6. b. (3). 130-43. Powers limited in nurnber and scope. — Second Emnlovcrs' Liability Cases, 2^3 U. S. 1. 56 L. Ed. 327. 32 S. Ct. 169; House V. Mayes, 219 U. S. 270, 55 L. Ed. 283 131-141 CO XS TI TU TIONA L LA I V. Vol. IV. (3) The Federal Constitution a Grant of Pozvers. — See note 46. (5) Incidental and I lu plied Pozvers of the Federal Government — (a) Gener- ally. — See note 54. b. Pozjuers of the States — (1) Generally. — See note 59. (2) Whence Derived. — See note 60. (3) Applicability of Constitutional Limitations to the Pozvers of the States — (b) Limitations Contained in the First Ten Aincndmcnts. — See notes 62, 63. 213, 31 S. Ct. 234; Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470; Atlantic, etc., R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 134, followed in Louisville, etc., R. Co. v. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171. The government created by the federal constitution is one of enumerated pov^ers. and can not, by any of its agencies, exer- cise any authority not granted by that in- strument, either in express words or by necessary implication. House v. Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234. "This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only che pow- ers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessarj^ to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist." Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470, following Mc- CuUoch V. Maryland, 4 Wheat. 316. 405, 4 L. Ed. 579. 131-46. The constitution a grant of powers. — Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327. 32 S. Ct. 169; House v. Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234; Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470; Atlantic, etc., R. Co. v. Riverside Mills. 219 U. S. 186, 55 L. Ed. 167. 31 S. Ct. 164, followed in Louisville, etc., R. Co. V. Scott. 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171. Undoubtedly the United States is a government of limited and delegated pow- ers, but in respect to those powers which have been expressly delegated, the power to regulate commerce between the states being one of them, the power is absolute, except as limited by other provisions of the constitution itself. Atlantic, etc., R. Co. V. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167. 31 S. Ct. 164, followed in Louis- ville, etc., R. Co. V. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171. In Houston v. Moore, 5 Wheat. 1, 48, 5 L. Ed. 19, Mr. Justice Story says: "Nor ought any power to be sought, much less to be adjudged, in favor of the United States, unless it be clearly within the reach of its constitutional charter. Sitting here, we are not at liberty to add one jot of power to the national government be- yond what the people have granted by the constitution." Keller :■. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. 135-54. Incidental and implied powers. — A power may be implied when neces- sary to give effect to a power expressly granted. House v. Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234. 137-59. Powers of the states. — While the constitution of the United States and the laws enacted in pursuance thereof, together with any treaties made under the authority of the United States, constitute the supreme law of the land, a state of the union may exercise all such governmental authority as is consistent with its own constitution, and not in conflict with the federal constitution. House v. Mayes, 219 U. S. 270. 55 L. Ed. 213, 31 S. Ct. 234. 138-60. Powers of the states — Whence derived. — Such a power in the state, gen- erally referred to as its police power, is not granted by nor derived from the fed- eral constitution, but exists independently of it, by reason of its never having been surrendered by the state to the general government. House v. Mayes, 219 U. S. 270. 55 L. Ed. 213. 31 S. Ct. 234. 139-62. Limitations contained in the first ten amendments. — By the unvarying decisions of the federal supreme court, the first ten amendments of the federal constitution are restrictive only of na- tional action. Twining v. New Jersey, 211 U. S. 78, 92, 53 L. Ed. 97, 29 S. Ct. 14; Hunter v. Pittsburgh. 207 U. S. 161, 52 L. Ed. 151. 28 S. Ct. 40; Ughbanks v. Arm- strong, 208 U. S. 481. 52 L. Ed. 582, 2S S. Ct. 372. Same— Fifth Pittsburgh, 207 28 S. Ct. 40. Same — Sixth and eighth amendments. — The sixth and eighth amendments do not limit the powers of the states as has been many times decided. Ughbanks v. Arm- strong. 208 U. S. 481, 52 L. Ed. 582. 28 S. Ct. 372. collecting cases. 141-63. Effect of fourteenth amendment as forbidding the states to abridge the rights secured by the first ten amend- ments. — The fourteenth amendment did not forbid the states to abridge the per- sonal rights enumerated in the first ten amendment. — Hunter v. U. S. 161, 52 L. Ed. 151, 284 Vol. IV. COXSTITUTIOXAL LAW 141-154 (c) Limitations Contained in the War Amendments. — See note 65. c. Division of Powers betzveen the Federal and State Governments — (3) Ex- clusive Pozcers of Federal Government — (b) Jurisdiction in the District of Co- lumbia and Places under Exclusive Federal Control. — See note 98. (c) Exclusive Control and Disposition of Property. — As to Public Lands within the States. — See note 10. amendments, because those rights are not within the meaning of the clause "privi- leges and immunities of citizens of the United States." Twining v. New JerseJ^ 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. It is possible that some of the personal rights safeguarded by the first eight amendments against national action- may also be safeguarded against state action, because a denial of them would be a de- nial of due process of law. Chicago, etc., R. Co. V. Chicago, 166 U. S. 226. 41 L. Ed. 1)79. If this is so. it is not because those rights are enumerated in the first eight amendments, but because thej' are of such a nature that they are included in the conception of due process of law. Twining v. New Jersev. 211 U. S. 78, 99. 53 L. Ed. 97, 29 S. Ct. 14. 141-65. Limitations contained in the war amendments. — The fourteenth amend- ment withdrew from the states powers theretofore enjoyed b}^ them to an extent not yet fully ascertained, or rather, to speak more accurately, limited those pow- ers and restrained their exercise. Twining V. New Jersey, 211 U. S. 78. 53 L. Ed. 97. 29 S. Ct. 14. The fourteenth amendment was not in- tended to, and does not. limit the powers of a state in dealing with crime committed within its borders, nor with the punish- ment thereof, although no state can de- prive particular persons nor classes of persons of equal and impartial justice un- der the la\v. Ughbanks v. .\rmstrGng. 20S TJ. S. 481. 487. 52 L. Ed. 582. 28 S. Ct. 372. 151-98. Jurisdiction in places under ex- clusive federal control — Norfolk navy yard. — The exclusive legislative power which congress possesses over the Nor- folk navy yard excludes the giving of any operation or effect, within the limits of such navy yard, to the provisions of Va. Code 1904, pp. 696, 697. imposing a penalty ^jpon telegraph companies for failure to deliver a message to the addressee. West- ern Union Tel. Co. i: Chiles. 214 U. S. ■274, 53 L. Ed. 994, 29 S. Ct. 613. "The Norfolk navy yard is one of the places where congress possesses exclusive legislative power. It follows that the laws of the state of Virginia, with the ex- ception referred to in the acts of as- sembly, can not be allowed any opera- tion or effect within the limits of the yard. The exclusive power of legisla- tion necessarily includes the exclusive ju- risdiction. The subject is so fully dis- cussed by ^Ir. Justice Field, delivering the opinion of the court in Ft. Leaven- worth R. Co. V. Lowe, 114 U. S. 525, 29 L. Ed. 264, 5 S. Ct 995, that we need do no more than refer to that case and the cases cited in the opinion. It is of the highest public importance that the juris- diction of the state should be resisted at the borders of those places where the power of exclusive legislation is vested in the congress by the constitution. Con- gress already, with the design that the places under the exclusive jurisdiction of the United States shall not be freed from the restraints of the law, has enacted for them (Revised Statutes, title 70, chapter 3, U. S. Comp. Stat. 1901, p. 3625) an ex- tensive criminal code, ending with the provision (§ 5391, U. S. Comp. Stat. 1901, p. 3651) that where an oflfense is not specially provided for by any law of the United States, it shall be prosecuted in the courts of the United States, and re- ceive the same punishment prescribed bj' the laws of the state in which the place is situa^ted for like offenses committed within its jurisdiction. We do not mean to sug- gest that the statute before us creates a crime in the technical sense. If it is de- sirable that penalties should be inflicted for a default in the delivery of a telegram occurring within the jurisdiction of the United States, congress onh- has the power to establish them." Western Union Tel. Co. v. Chiles. 214 U. S. 274. 53 L. Ed. 994, 29 S. Ct. 613. 154-10. Scope of § 3, art. 4. — The con- stitution declares. § 3, art. 4, that "con- gress shall have power to dispose of and make all needful rules and regulations re- specting the territory- or the property be- longing to the United States." "The full scooe of this paragraph has never been definitely settled. Primarily, at least, it is a grant of power to the United States of control over its property." Li.ght r. United States. 220 U. S. 523, 55 L. Ed. 570, 31 S. Ct. 485: Kansas f. Colorado, 206 U. S. 46. 51 L. Ed. 956. 27 S. Ct. 655. Power to establish public forest reserve. — Congress, in the exercise of its control of the property of the United States, un- der U. S. Const, art. 4, § 3. could consti- tutionally enact the act of March 3, 1891 (26 Stat, at L. 1103, chap. 561, U. 8. Comp. Stat. 1901. p. 1537). under which public forest reservations may be estab- lished on the public domain without the 285 159-160 CONSTITUTIONAL LAW. Vol. IV. (4) Exclusive Pozvers of the States — (b) Local Mwiicipal Jurisdiction, Sovereignty and Eminent Domain. — Soil under or Adjacent to Navigable or Public Waters.— vSee note 28. Same — Law Governing Rights of Riparian Owners. — See note 32. consent of the state where the land lies. Light V. United States, 220 U. S. 523, 55 L. Ed. 570, .31 S. Ct. 485. See post, PUB- LIC LANDS. 159-28. Soil under or adjacent to navi- gable waters. — "The principle has long been settled in this court that each state owns the beds of all tide waters within its ju- risdiction, unless they have been granted away." The Abbey Dodge, 223 U. S. 166. 56 L. Ed. 390, 32 S. Ct. 310, citing Pollard V. Hagan, 3 How. 212, 11 L. Ed. 565; Smith V. Maryland, 18 How. 71, 74, 15 L. Ed. 269; Mumford v. Wardwell, 6 Wall. 423, 436, 18 L. Ed. 756; Weber v. Board, 18 Wall. 57, 21 L. Ed. 798. See post, NAVIGABLE WATERS. In like manner the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 367, 410, 10 L. Ed. 997. The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship. The Abbey Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. State control of fisheries, oyster beds, sponge fishing, etc. — The power of the state to regulate the oyster industry, al- though the same is carried on under tidal waters within the state, can not be suc- cessfully contested. Lee v. New Jersey, 207 U. S. 67, 69, 52 L. Ed. 106, 28 S. Ct. 22, citing Smith v. Maryland, 18 How. 71, 15 L. Ed. 269; McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; Manchester v. Massachusetts, 139 U. S. 240, 35 L- Ed. 159. See post, FISH AND FISHERIES. Rights under the fourteenth amendment of the federal constitution are not in- fringed by the provision of Act of N. J., March 24, 1899, p. 514, § 20, as amended by Act March 22, 1901, p. 317, under which a conviction may be had for using a dredge in tidal waters of the state for the purpose of catching oysters upon leased lands without the consent of the lessees. Judgment, State v. Lee (1905), 59 Atl. Ills, afifirmed in Lee v. New Jersey, 207 U. S. 67, 52 L. Ed. 106, 28 S. Ct. 22. The taking or gathering of sponges from land under water within state terri- torial limits is not subject to congressional control. The Abbey Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. But under its power to regulate for- eign and interstate commerce, and, as in- cident thereto, to forbid merchandise car- ried in such coinmerce from entering the United States, congress may validly pro- hibit, as it did by the Act of June 20, 1906, the landing at any port or place in the United States of sponges taken during certain seasons outside of state territorial waters. The Abbey Dodge, 223 U. S 166, 56 L. Ed. 390, 32 S. Ct. 310. 160-32. Rights of riparian owners — By what law governed. — ^The rights of ri- parian owners upon navigable streams in this country are governed by the law of the state in which the stream is situated. Weems Steamboat Co. v. People Steam- boat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. But while as between the state and in- dividual riparian proprietors, tb.e limits of proprietorship, as extending to high water or low water marks, etc., is determined by the state law, yet with respect to public navigable waters constituting iiighways of interstate and foreign commerce, this power of the state, and the rights of in- dividuals acquired under state laws and regulations, are subject to the paramount control of congress and ;ts right to im- prove and secure the uninterrupted navi- gability of all public navigable streams within the limits of the United States. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340; Weems Steam- boat Co. V. Peoples Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. It is not within the power of a ftate, therefore, as against this supreme power of congress, to establish a highwater line and vest a right of property in the riparian owners out to this line, as a fixed and permanent limit of their property, without regard to subsequent shiftings, variations and encroachments of such line caused by natural forces. The jurisdiction of con- gress follov/s the stream, and attaches to it in its actual location at the time congress undertakes to deal with it. Hence, if at the time congress undertakes to deal with the stream, the waters thereof have en- croached up the land of a riparian pro- prietor, and the actual highwater line has moved landward over- his land, so that it no longer coincides with the statutory line fixed by the state, it is competent for con- gress, in establishing harbor lines or de- fining the navigable channel, to establish such lines coincident with the then actual and existing highwater line, and prevent the riparian proprietor from wharfing out, filling in, or otherwise reclaiming or exer- cising dominion out to the former statu- 286 Vol. IV. CONSTITUTIONAL LAW. 161-163 Same — Limitations of Rule. — See note 33. Right of State to Frame Its System of Laws— Subdivision of Territory for Municipal Purposes. — See notes 39, 40. (c) Persons and Property zvithin State Limits — (bb) To Define Property, Pre- scribe the Tenures Therein, and Regulate Its Descent, Distribution and Trans- fer. — See note 46. lory line established by the state and fixed by it as the perpetual boundary of his land and limit of his proprietorship as a riparian owner; and in so doing, con- gress does not deprive him of his prop- erty without compensation, and therefore without due process of law, since, as against the paramount right of the United States over interstate commerce and pub- lic navigable interstate streams, it was not competent for the state to confer any such property right upon him. Phila- delphia Co. V. Stirnson, 223 U. S. 005, 56 L. Ed. 570, 32 S. Ct. 340. 161-33. Same — Limitations of rule. — The rights thus held to exist in the states are "subject to the paramount right of navigation, the regulation of vvhich, in respect to foreign and interstate com- merce, has been granted to the United States. The Abbey Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. C. 310. See, also, ante, paragraphs under footnote 32. 162-39. Same — Power to make municipal subdivisions and govern same. — Citizens and taxpayers of a lesser municipality an- nexed under the authority of Act Pa. Feb. 7, 1906, §§ 1-9 (P. L. 7-11) to an ad- joining and large municipality, are not deprived of their property without due process of law by reason of the burden of additional taxation resulting from the con- solidation, although the method of voting prescribed by the statute has permitted the voters of the larger city to overpower the voters of the smaller one, and compel the union without their consent and against their protest. Judgment, In re City of Pittsburg, 66 A. 348, 217 Pa. 227, affirmed. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. Act of Feb. 7, 1906 (P. L. 7), authoriz- ing contiguous cities to consolidate, is not contrary to the federal constitution, as not due process of law, in that it au- thorizes the electors of the consolidated territory to determine the question of the annexation of a smaller city to a larger one, instead of leaving the matter to the electors of the smaller city to decide. (U. S. Sup. Pa. 1907), In re City of Pittburg, 66 A. 348, 217 Pa. 227; Appeal of Hunter, Id., judgment affirmed in Hunter z>. Pitts- burgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40 (Pa. Super. Ct. 1906), In re City of Pittsburgh. 32 Pa. Super. Ct. 210. Same — Location or change of seat of government. — The power to locate its own seat of government, and to determine when and how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are essentially and peculiarly state powers. Coyle V. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. 162-40. Same— Effect of fourteenth amendment. — The fourteenth amendment does not deprive a state of the power to determine what duties may be performed by local officers, nor whether they shall be appointed, or elected by the people. Soliah V. Heskin, 222 U. S. 522, 56 L. Ed. 294, 32 S. Ct. 103; Dreyer v. Illinois, 187 U. S. 71, 83, 47 L. Ed. 79, 23 S. Ct. 28; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67; County of Mobile v. Kimball, 102 U. S. 691, 706, 26 L. Ed. 238; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 167, 41 L. Ed. 369, 17 S. Ct. 56. Nor does that amendment deprive a state of the power to compel a tovvTiship, as one of its political subdivisions, to levy and collect taxes for the purpose of pay- ing the amount assessed against such township for the public benefits accruing for the construction of a drain. Soliah v. Heskin, 222 U. S. 522, 56 L. Ed. 294, 32 S. Ct. 103; Bauman v. Ross, 107 U. S. 548, 42 L. Ed. 270, 17 S. Ct. 966; County of Mobile V. Kimball, 102 U. S^ 691. 704, 26 L. Ed. 238. 163-46. Legal incidents of estates in real property — Liability for taxes as be- tween particular estate and remainder or reversionary interest. — The legal incidents of estates in real property, as, for ex- ample, whether the taxes upon property are to be paid by the tenant of the par- ticular estate or by the owner of the re- version, is a question to be determined by the state. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. Therefore, the decision of the state court that the general rule making the landlord responsible for the taxes has no application to the case of a perpetual leaseholder where the tenant is, in efifect,' the virtual owner of the property and en- titled to its use forever, presents no fed- eral question which can be reviewed by the federal supreme court upon writ of error. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. It is otherwise, of course, where the leaseholder in such a case claims a con- tract exemption as to certain taxes, and alleges that the obligation of such con- 287 164-170 CONSTITUTIONAL LAW. Vol. IV. Transfer of Property — Descent and Distribution, Right to Devise or Inherit, Interest or Estate Acquired by Heirs, Devisees, etc. — See note 48. ( e) State Courts; Their Constitution, Jurisdiction and Procedure. — See notes 64, 65. Rules of Evidence. — See note 69. tract is impaired by attempting to sub- ject the property to taxation in violation of such contract. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. 164-48. Descent and distribution — Right to devise or inherit — Interest or estate ac- quired by heirs, devisees, etc. — Whatever title heirs may take upon the death of their ancestor, they take by virtue of the state law, and it is for tne courts of the state to interpret that law and define that title. It is for the courts of the state to say whether the state law has cast upon them such a title to mortgaged property as to require that they should be made parties to a foreclosure proceeding against the personal representative and be given notice and opportunity to be heard, and the decision of the state court that they acquired no such title or estate will not be reviewed by the federal supreme court. McCaughey v. Lyall, 224 U. S. 558, 56 L. Ed. 883, 32 S. Ct. 602. Construing Cal. Code, Civ. Proc, §1582, to mean that the heirs are not necessary parties to a suit against the administratrix to foreclose a mortgage executed by the decedent, does not deprive such heirs, without due process of law, of the title which Cal. Civ. Code, § 1384, casts upon them upon the death of their ancestor. McCaughey v. Lyall, 224 U. S. 558, 56 L. Ed. 883, 32 S. Ct. 602. The nature and character of the interest of a surviving wife in community property for the purpose of taxation is peculiarly a local question to be decided by the state courts. There is no merit, therefore, in a contention that an inheritance tax upon such an interest is illegal, and that the surviving wife is denied equal protection ■of the laws upon the theory that her share in the community property was an interest which became vested during the life of the husband, and could not, on the death of the husband, be taxed differently from other property, that is to say, other than according to value, without violating the state constitution and creating an in- equality repugnant to the constitution of the United States. Moffitt v. Kelly, 218 U. S. 400, 54 L. Ed. 1086, 31 S. Ct. 79. 167-64. Constitution, jurisdiction and procedure of state courts. — Each state may, subject to the restrictions of the fed- eral constitution, determine the limits of the jurisdiction of its courts, the character of the controversies which shall be heard in them, and, specif^call3^ how far it will, having jurisdiction of the parties, enter- tain in its courts transitory actions, where the cause of action has arisen out- side its borders. Atchison, etc., R. Co. v. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. See, also, St. Louis, etc., R. Co. c. Taylor, 210 U. S. 281, 285, 52 L. Ed. 1061, 28 S. Ct. 616. 168-65. Remedies and procedure in state courts. — The practice of the state courts m acting upon matters within their juris- diction IS left for the states and their courts administering their laws to de- termine. Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 118, 53 L. Ed. 431, 29 S. Ct. 227. For example, if in the appointment of a receiver the court saw fit to act upon the testimony already heard and a con- viction already had for the violation of the anti-trust laws of the state, there is nothing in the federal constitution which .prevents it from so doing. Nor does the time or manner in which the state court saw fit to approve the receivers bond present any question under the fourteenth amendment. Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 118, 53 L. Ed. 431, 29 S. Ct. 227. See, also, the cases cited in Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. The limit of the full control which the state has of a proceeding in its courts both in civil and criminal cases, is sub- ject only to the qualification that such procedure must not work a denial of fun- damental rights, nor conflict with specific and applicable provisions of the federal constitution. Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 107, 53 L. Ed. 417, 29 S. Ct. 220; Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. 170-69. Rules of evidence. — Each state possesses the general power to prescribe the evidence which shall be received in the courts of that state and the ef¥ect which shall be given to it in those courts. Linds- ley V. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337; Bailey V. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145; Reitler n. Harris, 223 U. S. 437, 56 L. Ed. 497, 32 S. Ct. 248; Mobile, etc., R. Co. V. Turnipseed, 219 U. S. 35. 55 L. Ed. 78, 31 S. Ct. 136. Same — Prima facie presumptions. — As to the power of the state to create prima facie presumptions, and the rules and limitations with respect thereto, see post, "Laws Afifecting the Rules of Evidence," VIII, C, 13, f. 288 Vol. IV. CONSTITUTIONAL LAW. 170-172 (f) To Define and Punish Cnm^.— Excluding Elements of Knowledge, Intent and Negligence. — It is competent for the legislature to declare an of- fense and to exclude the elements of knowledge and due diligence from any in- quiry as to its commission.'^ ^'^ Acts Which "Tend" to Prohibit Result.— See note 70b. Fixing the Amount of Fines. — Fixing the amount of fines for the violation of state legislation is within the police power of the state, subject only to the limitation that such fines must not be so grossly excessive as to amount to a dep- rivation of property without due process of law.'^*"^ Power of Congress to Suppress Crime and Immorality under Interstate Commerce Clause. — The keeping of a house of ill fame within state limits is an offense against the state, and it rests with the state, in the exercise of its re- served police powers, to define and punish such offense.''"^ (g) Actions for Injuries to Person or Property. — See note 78. 170-70a. Excluding elements of knowl- edge, intent and negligence. — Chicago, etc., R. Co. V. United States, 220 U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612, following St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 170-70b. Acts which "tend" to prohibit result. — Due process of law is not denied a corporation convicted of violating the Texas anti-trust laws of May 25, 1899, and March 31, 1903, because the legislation permits and the trial court charges that there may be conviction not only for acts which accomplished the prohibited result, but also for those which "tend," or which are reasonably calculated to bring about such result. Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. 170-70C. Fixing the amount of fines. — Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. Penalties imposed by the jury and con- firmed by the state courts at the rate of $1,500 and $50 per day for violating, re- spectively, through a series of years, the Texas anti-trust laws of May 25, 1899 (Laws, 1899, p. 246, c. 146), and of March 31, 1903 (Laws 1903, p. 119, c. 94), are not so excessive as to deprive the defendant corporation of its property without due process of law, where such property amounts to more than $40,000,000, and its dividends have been as high as 700 per cent per annum. Waters-Pierce Oil Co. V. Texas, No. 1. 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220, affirmed (Civ. App.), 106 S. W. 918. 171-77a. Power to suppress crime and immorality under interstate commerce clause. — Hence, congress had no power under the interstate commerce clause, to enact the provisions of the Act of Febru- ary 20. 1907 (34 Stat, at L. ^98, chap. 1134, § 3), for the criminal punishment of the mere keeping, maintaining, supporting or harboring, for the purpose of prostitution, any alien woman within three years after she shall have entered the United States. Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. 172-78. Action for injuries to persons and property. — Each state may, subject to restrictions of the federal constitution, de- termine the limits of the jurisdiction of its courts, the character of the controversies which shall be heard by them, and, specif- ically, how far it will, having jurisdiction of the parties, entertain in its courts transitory actions, where the cause of ac- tion has arisen outside its borders. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 285, 52 L. Ed. 1061, 28 S. Ct. 616; Atchison, etc., R. Co. v. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. It also rests with the states to declare what shall constitute actionable wrongs to person or property, that is, to define the elements necessary to sustain the ac- tion and the matters admissible in defense. Thus it is a general principal of law that there is no individual liability for an act which ordinary human care and foresight could not guard against. It is also a gen- eral principle of the same law that a loss from any cause purely accidental must rest where it chances to fall. But behind and above these general principles which the law recognizes as ordinarily prevail- ing, there lies the legislative power, which, in the absence of organic restraint may, for the general welfare of society, impose obligations and responsible otherwise non- existent. Chicago V. Sturges, 222 U. S. 313, 56 L. Ed. 215, 32 S. Ct. 92. Imposing liability for property de- stroyed by mob violence. — Thus, it is com- petent for the state, under its police power, to create a right of action against its municipal subdivisions in favor of the owners of property destroyed by mob violence, and it m.ay make such liability absolute. Chicago v. Sturges, 222 U. S. 313, 56 L. Ed. 215. 32 S. Ct. 92. Abolishing fellow servant rule. — So it is competent for the state to abolish the 12 U S Enc— 19 289 174-178 CONSTITUTIONAL LAW. Vol. IV. (5) Concurrent Powers of State and Federal Goz'ernuients — (b) As to Sub- ject Matter — (aa) General Principles. — It not infrequently happens that the same act may be referable to the power of the state, as well as to that of con- gress; and if there be collision in such a case, the superior authority of congress prevails.^"" Exclusive Intervention Supersedes State Enactments. — It is well settled that if the state and congress have a concurrent power, that of the state is su- perseded when the power of congress is exercised.''^'' Where Congress Has Not Occupied the Full Sphere of Its Power. — It should never be held, however, that congress intends to supersede or by its leg- islation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to eftect that result is clearly manifested. ^-'^ (bb) Jlliistratiois — ( bbb ) The Taxing Poiver. — See note 96. In What Respects the Power of the States Remains Unabridged. — See note 1. fellow servant rule in actions by servants against masters to recover for personal injuries. Aluminum Co. v. Ramsey, 222 U. S. 251, 56 L. Ed. 185, 32 S. Ct. 76. 174-87a. Concurrent jurisdiction as to subject matter. — Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470, citing New York v. Aliln, 11 Pet. 101, 137, 9 L. Ed. 648; Adams Exp. Co. v. Com- monwealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633. 176-91a. Same — Exclusive intervention supersedes state enactments. — Southern R. Co. V. Reid, 222 U. S. 424. 56 L. Ed. 257, 32 S. Ct. 140. 176-92a. Where congress has not oc- cupied the full sphere of its powers. — Asbell V. Kansas, 209 U. S. 251, 52 L. Ed. 778, 28 S. Ct. 485. 177-96. The taxing power of the federal government. — Enactments levying taxes, as other laws of the federal government when acting within constitutional au- thority, are the supreme law of the land. The constitution contains only two limi- tations on the right of congress to levy excise taxes: They must be levied for the public welfare, and are required to be uniform throughout the United States. Mr. Chief Justice Chase said, speaking for the court in license tax cases, 5 Wall. 462, 471, 18 L. Ed. 497, "Congress can not tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uni- formity. Thus limited, and thus only, it reaches everj- subject and may be exer- cised at discretion." The limitations to which the chief justice refers were the only ones imposed in the constitution upon the taxing power. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. See, generally, post, TAXATION. 178-1. Manner of collecting taxes. — Each state is left to choose its own method of taxation and the form and manner of enforcing the payment of pub- lic revenues, subject, only to the restrict- ing power of the federal constitution of the United States. Unless the state law is in conflict with some provision of the federal constitution, it can not be invali- dated upon the ground that it is imprac- ticable or inexpedient, or that the legisla- ture has not chosen the best method to the desired end. Kentucky Union Co. zk Commonwealth. 219 U. S. 140, 55 L. Ed. 137. 31 S. Ct. 171. Except as restrained by its own con- stitution or by the constitution of the United States, the state of Texas, by its legislature, has full power to prescribe any system of taxation which, in its judg- ment, is best or necessary for its people or government. Southwestern Oil Co. v. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. The federal courts can not interfere with the enforcement of the tax laws of the state simply because they disapprove of their terms, or question the wisdom of their enactment, or because they can not be sure a^ to the precise recourses induc- ing the state to enact such laws. South- western Oil Co. 7'. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. But upon the adoption of the fourteenth amendment, the states become bound, as was the United States by the fifth amend- ment, not to deprive any person of prop- erty without due process of law. Still, it was never contemplated, when that amend- ment was adopted, to restrain or cripple the taxing power of the state, whatever the methods they devised for the purposes of taxation, unless those methods, by their necessary operation, were incon- sistent with the fundamental principles embraced by the requirements of due process of law and the equal protection of the laws in respect to rights of prop- erty. Southwestern Oil Co. v. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. 290 \'ol. I\". COXSTirUTlOXAL LAW. 178-180 Where Incompatible with Power of Congress or Nature of Govern- ment. — See note 2. Taxation of Imports by State. — See post. Interstate and Foreigx Com- merce ; Taxation. (ccc) Foreign and Interstate Commerce. — Where fundamental principles of the constitution are of equal dignity, neither must be so enforced as to nullify or substantially impair the other.''^ Supremacy in Case of Conflict. — See note 7. (gggj Enforcement of Federal Laic. — The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty. If an act of congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of congress by a proper action in a state court. The fact that a state court de- rives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two ju- risdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by the Chief Justice Taney, in case of Ableman v. Booth, 21 How. 506, 16 L. Ed. 169; and hence the state courts have no power to revise the action of the federal courts, nor the federal the state, except where the federal constitution or laws are in- volved. But this is no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied. ^'^ 178-2. Where incompatible with power wealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. of congress or nature of government. — Ct. 6.33. Enactments levying taxes, hke other laws 180-8a. Enforcement of federal law. — • of the federal government when acting Second Employers' Liability Cases, 223 within constitutional authority, are the U. S. 1. 56 L. Ed. 327, 32 S. Ct. 169, quot- supreme law of the land. Flint i'. Stone mg Clatlin z: Houseman, 93 U. S. 130, 136, Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 23 L. Ed. 833. S. Ct. 342. Recovery of damages from initial car- 179-6a. Fundamental principles not to ner under Carmack Amendment.— The nullify each other.— Dick v. United States, damage caused by the tailure ot a con- 208 U. S. 340. 353, 52 L. Ed. 520, 28 S. Ct. necting earner m an mterstate shipment 399 to deliver the goods to the consignee, tor r^, ■ 1 • -^u T which failure the initial carrier is made Thus in regulatmg commerce with In- jj^,^j^ ^ ^j^^ Carmack amendment of dian tribes congress must have regard to , ^^ ^g, 1906 (34 Stat, at L. 584, chap, the general authority which the state has -^ ^ g ^ g^^^ g^pp^ ^gog. p. oyer all persons and things within its ju- ^^^g. ^^ ^,^g Interstate Commerce Act of risdiction. So the authority of the state ^^^ '^ ^gg. ^^ g^^^ ^^ L. 379, chap. 104, can not be so exerted as to impair the ^ g -q g^at. 1901, p. 3154); is not povver of congress to regulate commerce ^^aceable to a violation of the statute, re- with the Indian tribes. Dick v United ^ ^ which, under § 9 of the original States, 208 U. S. 340. 353, 52 L- Ed. 520, 28 ^ct, can o^ly be had by proceedings be- b. Ct. 399. ^ £Qj.g ^j.,g interstate commerce commission 180-7. Supremacy in case of conflict. — qj. [^ ^he federal courts, but may be en- Dick f. United States, 208 U. S. 340, 353, forced in the state courts also. Galveston, 52 L. Ed. 520, 28 S. Ct. 399; Southern R. etc.. R. Co. z: Wallace, 223 U. S. 481. 56 Co. V. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 L_ ]7± 516, 32 S. Ct. 205, distinguishing S. Ct. 140; Adams Exp. Co. v. Common- Texas, etc.. R. Co. v. Abilene Cotton Oi! 291 185-188 CONSTITUTIONAL LAW. Vol. IV. (6) Bach Government Supreme zi'ithin the Scope of Its Authority — (a) Gen- erally. — See note 19. (b) Neither Government to Intrude upon the Jurisdiction, Interfere with the Operation, nor Burden the Instrumentalities of the Other — (aa). Generally. — See note 20. (bb) Encroachment through Implied or Constructive Pozvers, or through Strained or Unusual Construction. — See note 23. (cc) State Encroachment upon Federal Pozver and Prerogatives — (bbb) State Interference zcith Proceedings in Federal Courts. — See note 27. Co., 204 U. S. 426, 51 L. Ed. 553, 27 S. Ct. 350. See, also, Atlantic, etc., R. Co. v. Riverside Mills, 219 U. S. 186, 208, 55 L. Ed. 167, 31 S. Ct. 164. 185-19. Each government supreme within the scope of its authority. — The laws of the states and of the federal government together form one system of jurisprudence for the states; but while this is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other. Hence the state courts have no power to revise the action of the fed- eral courts, nor the federal the state, ex- cept where the federal constitution or laws, or rights arising thereunder, are in- volved. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, citing Ableman v. Booth, 21 How. 506, 16 L. Ed. 169, and Claflin v. House- man, 93 U. S. 130, 136, 23 L. Ed. 833. Undoubtedly the United States is a government of limited and delegated pow- ers, but in respect to those powers which have been expressly delegated, the power to regulate commerce between the states being one of them, the power is absolute, except as limited by other provisions of the constitution itself. Atlantic, etc., R. Co. V. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164, followed in Louisville, etc., R. Co. v. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171; Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, citing Mc- Culloch V. Maryland, 4 Wheat. 316, 4 L. Ed. 579. 186-20. Neither government to intrude upon the jurisdiction nor burden the in- strumentalities of the other. — The sov- ereignties are distinct. Neither can inter- fere with the proper jurisdiction of the other. The state courts have no power to revise the action of the federal courts nor the federal the state, except where the federal constitution or laws, or rights arising thereunder, are involved. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, citing Claflin V. Houseman, 93 U. S. 130, 136, 23 L. Ed. 833; Ableman v. Booth, 21 How. 506, 16 L. Ed. 169. 187-23. Encroachment through implied or constructive powers, strained and un- usual construction, etc. — In Houston z: Moore, 5 Wheat. 1, 48, 5 L. Ed. 19. Mr. Justice Story says: "Nor ought any power to be sought, much less to be ad- judged, in favor of the United Stated, un- less it be clearly within the reach of its constitutional charter. Sitting here, we are not at liberty to add one jot of power to the national government beyond what the people have granted by the constitu- tion." Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. 188-27. State interference with federal courts — Persons or property in custody of courts of other jurisdiction. — The fed- eral and state courts exercise jurisdiction within the same territory, derived from and controlled by separate and distinct authority, and are therefore required, upon every principle of justice and propriety to respect the jurisdiction once acquired over property by a court of the other sovereignty. If a court of competent ju- risdiction, federal or state, has taken pos- session of property, or by its procedure lias obtained jurisdiction over the same, svtch property is withdrawn from the ju- risdiction of the courts of the other au- thority as effectually as if the property had been entirely removed to the terri- tory of another sovereignty. Palmer v. Texas, 212 U. S. 118, 125, 53 L. Ed. 435, 29 S. Ct. 230; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 52 L. Ed. 379, 28 S. Ct. 182, and previous cases in this court cited therein at p. 54. As was said by the ' federal supreme court in Claflin v. Houseman, 93 U. S. 130, 136, 23 L. Ed. 833: "The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a for- eign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount, sovereignty. * * * If an act of congress gives a penalty (meaning civil and remedial) to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not pro- vided otherwise by some act of congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much 293 Vol. IV. CONSTITUTIONAL LAW. 192-204 (fff) State Bmroachincnt through Exercise of Taxing Pozver — (aaaa) Gen- erally; the Pozver to Tax the Pozver to Destroy. — Limitation of Doctrine That Power to Tax Is the Power to Destroy. — See note 43. (dddd) Taxation of Property Ozmied by Federal Government. — See note 49. (jjjj.) Telegraph Companies Employed as Federal Agencies; Messages Sent by the United States. — See note 82. (mmmm) Limitation of Doctrine — (aaaaa) Validity of Tax Dependent upon Its Effect. — See note 86. (ggg) State Obstruction of Rights under Federal License. — A state may not so exert its police power as to directly hamper or destroy a lawful authority of the government of the United States.^^*^ bound to recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state, and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. * * * j^ is true, the sovereignties are distinct, and neither can interfere with the proper ju- risdiction of the other, as was so clearly shown by the Chief Justice Taney, in case of Ableman v. Booth, 21 How. 506, 16 L. Ed. 169, and hence the state courts have no power to revise the action of the federal courts, nor the federal the state, except where the federal constitution or laws are involved. But this is no reason why the state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied." Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. 192-43. Limitations of doctrine. — Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342, quoting Knowlton V. Moore, 178 U. S. 41, 60, 44 L. Ed. 969, 20 S. Ct. 742. 193-49. Taxation of federal property by states — Lands — Tax upon right of posses- sion not a tax upon land itself. — Lands belonging to the United States within a state are exempt from taxation by the state. Elder v. Wood, 208 U. S. 226, 52 L. Ed. 464, 28 S. Ct. 263; Wisconsin Cent. R. Co. V. Price County, 133 U. S. 496, 33 L. Ed. 87, 10 S. Ct. 341. But a tax upon the right of possession of such lands before patent issues is not a tax upon the land itself. Elder v. Wood, 208 U. S. 226, 52 L. Ed. 464, 28 S. Ct. 263. Lands of the United States are not taxed in violation of the Act of March 3, 1875 (18 Stat, at L. 474, chap. 139), § 4, by the imposition, under the authority of Colo. Laws 1887, pp. 340, 341, of a' tax upon the right of possession, for mining purposes, of a lode mining claim, and the enforcement of the collection of such tax by a sale of such right of possession. Elder V. Wood, 208 U. S. 226, 52 L. Ed. 464, 28 S. Ct. 263. 200-82. Effect of acceptance of Revised Statutes, § 5263 — Rights of company sub- ject to reasonable municipal regulation. — See Western Union Tel. Co. z\ Richmond, 224 U. S. 160, 56 L. Ed. 710, 32 S. Ct. 449. See, also, post, LICENSES; POLICE POWER; TELEGRAPHS AND TELE- PHONES. • 202-86. Limitation of doctrine as to state taxation of federal agencies. — It has been held in a number of cases that the state can not tax franchises created by the United States or the agencies or corpora- tions which are created for the purpose of carrying out governmental functions of the United States. McCulloch f. Mary- land. 4 Wheat. 316, 4 L. Ed. 579; Osborn z: Bank, 9 Wheat. 738, 6 L. Ed. 204; Rail- road Co. V. Peniston, 18 Wall. 5, 21 L. Ed. 787; California v. Central Pac. R. Co., 127 U. S. 1, 32 L. Ed. 150, 8 S. Ct. 1073. An examination of these cases will show that in each case where the tax was held in- valid, the decision rested upon the propo- sition that the corporation was created to carry into effect powers conferred upon the federal government in its sovereign capacity, and the attempted taxation was an interference with the effectual exercise of such powers. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 204-96a. State obstruction of rights con- ferred by federal license. — Flaherty v. Hanson, 215 U. S. 515, 54 L. Ed. 307. 30 S. Ct. 179. State law requiring internal revenue tax receipts to be registered and published. — ■ The requirement that receipts for the paj^- ment of the federal internal revenue tax upon the business of selling intoxicating liquors be registered and published at the holder's expense, which is made by N. D. Act of March 13, 1907, is not a valid exer- cise of the poh'ce power, but is invalid, as placing a direct burden upon the taxing power of the federal government. Flaherty V. Hanson, 215 U. S. 515, 54 L. Ed. 307, 30 S. Ct. 179. The state of North Dakota, on March 13, ]907, enacted a law requiring a regis- 293 206-209 CONSTITUTIONAL LAW. Vol. IV. (iii) State Bncroachment through the Exercise of the Police Pozi'er. — See, generally, post, Inte:rstati; and ForiJign Comme;rce; Police Power. See, also, ante, "State Obstruction of Rights under Federal License," VI, D, 3, c, (6), (b), (bb), (ggg). (dd) federal Bncroachment upon the States — (bbb) Federal Government Not to Control the Power nor Revieiv the Discretion of State Legislatdires. — See note 4. (ccc) Poiver of Federal Government to Control or Revise the Proceedings of State Courts. — See note 6. tration and publication of any receipt, stamp, or license, showing the payment of the special tax levied under the laws of the United States upon the business of selling distilled, malted, and fermented liquor. Brielly, the law provides as fol- lows: A notice of the particulars con- tained in the receipt or license, and other details respecting the place where the tax receipt or license is posted, etc.. is re- quired to be made for three weeks in of- ficial newspapers, and the fees for pub- lication are declared to be tne same "as allowed by law for the publication of other legal notices." Upon complaint made be- fore a committing magistrate for the county of Grand Forks, state of North Dakota, R. E. Flaherty, by the name of R. C. Flarty, was held to answer upon a charge of neglecting to register and pub- lish a government receipt for the pay- ment of an internal revenue tax on the business of a retail dealer in malt liquors. The detention complained of was as- serted to be illegal upon the ground that the laws upon which the prosecution was based was repugnant to the federal con- stitution. "We see no escape from the conclusion," said the court, "that it im- mediately and directly places a burden upon the lawful taxing power of the United States, or, what is equivalent thereto, places the burden upon the per- son v/ho pays the United States tax. solely because of the payment of such tax. and wholly without reference to the do- ing by the person of any act within the state which is subject to the regulating authority of the state. That the at- tempted exertion of such a power is re- pugnant to the constitution of the United States is so elementary as to require noth- ing but statement." Flaherty %.'. Hanson, 215 U. S. 515, 54 U. Ed. 307, 30 S. Ct. 179. 206-4. State legislative povirer and dis- cretion not subject to federal control. — The federal supreme court can not set aside legislation because it is harsh. Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57, 54 L. Ed. 930, 30 S. Ct. 6G3. The policy, wisdom, justice and fair- ness of a state statute is not subject to review or criticism, by the federal su- preme court. Hunter f. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. Although the means employed by the state to accomplish an object which it is entitled to accoinplish inay be deemed unwise and inexpedient and not the best or most efifective which might have been employed, they will not, for that reason, be condemned or disregarded by the fed- eral courts if they have a real relation to the object sought to be accomplished. Chicago, etc., R. Co. v. Arkansas, 219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275. Same — Uncontrollable power of state to tax. — -Except as restrained by its own con- stitution or by the constitution of the United States, the state of Texas, by its legislature, has full power to prescribe any system of taxation which, in its judgment, is best or necessary for its people and government; that, so far as the power of the United States is concerned, the state has the right, by any rule it deems proper, to classify persons or business for the pur- poses of taxation, subject to the condition that such classification shall not be in violation of the constitution of the United States; that the requirement by the state, that all wholesale dealers in specified ar- ticles shall pay a tax of a given amount on their occupation, without exacting a similar tax on the occupations of whole- sale dealers in other articles, can not, on the face of the statute or by reason of anjr facts within the judicial knowledge of the court, be held, within the meaning of the fourteenth amendment, to deprive the taxpayer of his property without due process of law, or to deny him the equal protection of the laws; and that the fed- eral court can not interfere with the eji- forcement of the statute simply because it may disapprove its terms, or question the wisdom of its enactment, or because it can not be sure as to the precise reasons in- ducing the state to enact it. Southwest- ern Oil Co. V. Texas, 217 U. S. 114, 54 L- Ed. 688, 30 S. Ct. 496. 209-6. Power to control or revise pro- ceedings in state courts. — Second Em- ployers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, citing Claflin v. Houseman, 93 U. S. 130, 137, 23 L. Ed. 833. See, generally, ante, APPEAL AND ER- ROR, p. 34; post, COURTS. 294 Vol. IV COXSTiruriONAL LAW 209-210 Enjoining Criminal Proceedings in State Courts. — See note 7. (dddl Federal Encroachment upon the States through the Exercise of the Taxing Pozver — (aaaa) Generally. — The cases unite in exempting from federal taxation the means and instrumentalities employed in carrying on the govern- mental operations of the state. ^"^ But this limitation has never been extended to the exclusion of the activities of a merely private business from the federal taxing power, although the power to exercise them is derived from an act of in- corporation by one of the states. The mere fact that the business taxed is done in pursuance of authority granted by a state in the creation of private corpora- tions does not exempt it from the exercise of federal authority to levy excise taxes upon such privileges. i"'' In short, the exemption of state agencies and in- strumentalities from national taxation is limited to those of a strictly govern- mental character, and the true distinction is between the attempted taxation of those operations of the states essential to the execution of its governmental functions, and which the state can only do itself, and those activities which are of a private character. The former, the United States may not interfere with by taxing the agencies of the state in carrying out its purposes ; the latter, al- though regulated by the state, and exercising delegated authority, such as the right of eminent domain, are not removed from the field of legitimate federal taxation ^^^ 209-7. Enjoining criminal proceedings in state courts. — Individuals who, as of- ficers of tile state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten to commence, and are about to commence, proceedings, either of a civil or criminal nature, to enforce against the persons af- fected thereby an act of the state legisla- ture which violates the federal constitu- tion, may be enjoined by a federal court of equity from such action. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. See, also. Western Union Tel. Co. 7'. Andrews, 216 U. S. 165, 54 L. Ed. 430, 30 S. Ct. 286; Ludwig ?>■. Western Union Tel. Co.. 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. See post, INJUNCTIONS. 210-lOa. Federal encroachment through exercise of the taxing power. — Flint z'. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Citing The Collector f. Day, 11 Wall. 113, 20 L. Ed. 122; United States V. Railroad Co., 17 Wall. 322. 21 L. Ed. 597; Ambrosini v. United States, 187 U. S. 1. 47 L. Ed. 49, 23 S. Ct. 1. See post, TAXATION. 210-lOb. Same — Limitations of doctrine. —Flint r. Stone Tracy Co.. 220 U. S. 107. 55 L. Ed. 389, 31 S. Ct. 342. In the case of South Carolina 7'. United States, 199 U. S. 437, 50 L. Ed. 261, 26 S. Ct. no, the federal supreme court held that when a statute, acting within the lawful authority, undertook to carry on the liquor business, it did not withdraw the agencies of the state, carrying on the traffic, from the operation of the internal revenue laws of the United States. If a state may not thus withdraw from the operation of a federal taxing law a subject matter of such taxation, it is difficult to see how the incorporation of companies whose service, though of a public nature is, nevertheless, with a view to private profit, can have the effect of denying the federal right to reach such properties and activities for the purposes of revenue. It is no part of the essential governmental functions of a state to provide means of transportation, sup- ply artificial light, water, and the like. These objects are often accomplished through the medium of private corpora- tions, and though the public may derive a benefit from such operations, the com- panies carrying on such enterprises are nevertheless private coinpanies, whose business is prosecuted for private emolu- ment and advantage. For the purpose of taxation they stand upon the same footing as other private corporations upon which special franchises have been conferred. Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 210-lOc. Same — Same. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. A tax imposed upon the exercise of the privilege of doing business in a corporate capacity, as such business is done under authority of state franchises, is within the right of the federal government. The right to tax the activities of private cor- porations which arise from the exercise of franchises granted by the state in creating and conferring powers upon such corpora- tions is not beyond the taxing power of the United States. Flint 7'. Stone Tracy Co., 220 U. S. 107. 55 L. Ed. 389, 31 S. Ct. 342; Railroad Co. v. Collector, 100 U. S. 595. 25 L. Ed. 647; United States v. Erie R. Co.. 106 U. S. 327. 27 L. Ed. 151. 1 S. Ct. 223; Spreckels Sugar Refin. Co. v. Mc- 295 215-218 CONSTITUTIONAL LAW. Vol. IV. (gg?) Power of Federal Courts to Restrain State Officers Acting under Un- constitutional Lazvs. — See ante, "Power of Federal Government to Control or Revise the Proceedings of State Courts," VI, D, 3, c, (6), (b), (dd), (ccc). See, also, post, Courts; Due Process of Law; Injunctions; Jurisdiction; States. (hh) Supremacy in Case of Conflict betzveeii State and Federal Pozvers. — See notes 29, 30, ZZ. Clain, 192 U. S. 397, 48 L. Ed. 496, 24 S. Ct. 376. Public service corporations, such as street railway companies created under state laws, may constitutionally be sub- jected to the excise imposed by the Act of August 5, 1909, § 38, upon the doing or carrying on of business in a corporate or quasi corporate capacity. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. The excise imposed by the Act of August 5, 1909, § 38, upon the carrying on or the doing of business in a corporate or quasi corporate capacity, is not invalid be- cause the business taxed is done in pursu- ance of the authority granted by a state, in the creation of private corporations. Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. The possibility that the rights of the several states to create corporations may practically be destroyed by the exercise of the power assumed by congress in the Act of August 5, 1909, § 38, to impose an ex- cise upon the doing or the carrying on of business in a corporate or quasi corporate capacity, furnishes no ground for judicial interference with the tax. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Corporations acting as trustees, guard- ians, etc., under the authority of the laws or courts of a state, are not the agents of the state government in such a sense as to be exempt from the imposition, under the Act of August 5, 1909, § 38, of an excise measured by net income upon the doing or the carrying on of business in a corpo- rate or quasi corporate capacity. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 215-29. Supremacy in case of conflict be- tween state and federal powers. — It not infrequently happens that the same act may be referable to the power of the state as well as to that of congress, and it is w&\\ settled that if there be a collision in such a case, the superior authority of con- gress prevails, since the constitution of the United States, together with the laws and treaties enacted under the authority thereof, is the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding, and the government of the United States, though one of limited and enumerated powers, is supreme within its sphere of action. Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470; New York V. Miln, 11 Pet. 101, 137, 9 L. Ed. 648; Sec- ond Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, quoting Chief Justice Marshall in McCuHoch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Adams Exp. Co. v. Commonwealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633. It is well settled that if the state and congress have concurrent power, that of the state is superseded when the power of congress is exercised. Southern R. Co. v. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 S. Ct. 140. 217-30. Immaterial to what class conflict- ing state power may belong. — -It has long been settled that when an "act of the leg- islature of a state prescribes a regulation repugnant to and inconsistent with a regu- lation of congress, the state law must give way, and this without regard to the source of power whence the state legislature de- rived its authority for the enactment." Sinnot V. Davenport, 22 How. 227, 243, 16 L. Ed. 243; Missouri, etc., R. Co. v. Haber, 169 U. S. 613, 626, 42 L. Ed. 878, 18 S. Ct. 488; Reid 7'. Colorado, 187 U. S. 137, 47 L. Ed. 108, 23 S. Ct. 92. This results, Chief Justice Marshall said in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, as well from the nature of the government as from the words of the constitution. Chicago, etc., R. Co. V. United States, 219 U. S. 486, 55 L. Ed. 305, 31 S. Ct. 272. 218-33. State law not to be held invalid unless conflict is clear. — When the ques- tion is whether a federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be iinplied is of no less force than that which is expressed. If the purpose of the act can not otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of congress within the sphere of its dele- gated power. Savage v. Jones, 225 U. S. 501, 533, 56 L. Ed. 1182, 32 S. Ct. 715, fol- lowed in Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 748; Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 S. Ct. 350; Northern Pac. R. Co. v. Atkinson, 222 U. S. 370, 378, 56 L. Ed. 237, 32 S. Ct. 160; Southern R. Co. v. Reid, 222 U. S. 424, 436, 56 L- Ed. 257, 32 S. Ct. 140. But the intent to supersede the exercise by the state of its police power as to mat- 296 Vol. IV, COXSTITUTIOXAL LAW. 219-222 d. Separation of Departments and Distribution of Pozuers — (1) Pozver of Body Politic zvith Respect to Distribution of Pozvers. — In the Several States. — See note 37. (3) The Departments Separate; None to Encroach upon or Exercise the Pozvers of Another — (a) Generally. — Legislative and Judicial Functions Distinguished. — A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.-* ^"^ (b) Legislative Exercise of Judicial Pozvers — (aa) Generally. — Federal Constitution Not Prohibitive to State Legislatures. — See ante, "Power of Body Politic with Respect to Distribution of Powers," VI, D, 3, d, (1). (bb) What Constitutes — (aaa) Legislation Affecting Pending Suits or Judg- ments Rendered — (eeeej Statute Amending, Overruling or Setting Aside Judg- ment or Decree. — See note 50. ters not covered by the federal legislation is not to be inferred from the mere fact that congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of congress fairly interpreted is in actual conflict with the law of the state. Sa^-age v. Jones, 225 U. S. 501, 533, 56 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. v. Wright, 225 U. S. 510, 56 L. Ed. 1197, 32 S. Ct. 784; Asbell v. Kansas, 209 U. S. 251, 52 L. Ed. 778, 28 S. Ct. 485; Northern Pac. R. Co. v. Atkinson, 222 U. S. 370, 379, 56 L. Ed. 237, 33 S. Ct. 160; Southern R. Co. V. Reid, 222 U. S. 424, 442, 56 L. Ed. 257, 32 S. Ct. 140. 219-37. Powers of state with respect to distribution of powers. — When a state constitution sees fit to unite legislative and judicial powers in a single hand, there is nothing to hinder, so far as the constitti- tion of the United States is concerned. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 225. 53 L. Ed. 150, 29 S. Ct. 67; Dreyer z: Illinois, 187 U. S. 71, 47 L. Ed. 79, 23 S. Ct. 28; Winchester & Strasburg R. R. Co. V. Commonwealth, 106 Va. 264, 268. There is nothing in the federal constitu- tion which directly or impliedly forbids a state to confer judicial functions upon nonjudicial bodies. Judgment, In re Con- solidated Rendering Co. (Vt. 1907) 66 A. 790, affirmed. Consolidated Rendering Co. V. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. The bounds of judicial authority are not transcended by the appointment by a court of a water commission charged with the duty of distributing the waters of a river among the various irrigation canals according to the adjudged priorities, and imposing upon the parties a pro rata lia- bility for his salary. ]\Iontezuma Canal Co. V. Smithville Canal Co., 218 U. S. 371, 54 L. Ed. 1074, 31 S. Ct. 67. reversing 11 Ariz. 99, 89 Pac. 512. 220-41a. Legislative and judicial func- tions distinguished, — Prentis v. Atlantic Coast Line Co.. 211 U. S. 210, 226. 53 L. Ed. 150, 29 S. Ct. G7. 222-50. Impeachment of fraudulent judgment awarding certificate of naturali- zation. — Congress did not unconstitution- ally exercise judicial power by enacting the provisions of the Act of June 29, 1906, § 15, under which certificates of naturaliza- tion theretofore issued ex parte in the or- dinary way may be impeached where fraudulently and illegally procured by per- jured testimony. Johannessen v. United States, 225 U. S. 227, 56 L. Ed. 1066, 32 S. Ct. 613. The contention that the Act of June 29, 1906, in authorizing the impeachment of certificates of naturalization theretofore issued for fraud consisting of the introduc- tion of perjured testimony is unconstitu- tional, as an exercise of judicial power by the legislative department is without merit. The act does not purport to de- prive a litigant of the fruits of a success- ful controversy in the courts, for the proceedings for naturalization are not in any proper sense adversary proceedings, but are ex parte and conducted by the applicant for his own benefit. The act in effect provides for a new form of judi- cial review of a question that is in form, but not in substance, concluded by the previous record, and under conditions af- fording to the party whose rights are brought into question full opportunity to be heard. Retrospective acts of this char- acter have often been held not to be an assumption by the legislative department of judicial powers. Johannessen v. United States, 225 U. S. 227, 56 L. Ed. 1066. 32 S. Ct. 613, citing Sampeyreac v. United States, 7 Pet. 222, 239, 8 L. Ed. 665; Free- born v. Smith, 2 Wall. 160, 175, 17 L. Ed. 922; Garrison v. New York, 21 Wall. 196, 202, 22 L. Ed. 612; Freeland v. Williams, 13l' U. S. 405, 413, 33 L. Ed. 193, 9 S. Ct. 763; Stephens f. Cherokee Nation, 174 U. S. 445, 478, 43 L. Ed. 1041, 19 S. Ct. 722. 297 223-231 COXSTITUriONAL LAW. Vol. IV. (bbb) Legislative Judgments and Decrees — (aaaa) Generally. — The state can not make a legislative act res judicata by providing for notice and hearing of interested persons before the enactment of the law. Nor can a citizen be de- prived of the right to resort to the courts for the purpose of redressing the prosecution of an act upon the ground that he was negligent or guilty of laches in not appearing before the legislative body and opposing the enactment of the act of which he complains. On the other hand, it may be said that a citizen has the right to assume that the legislature will act with respect to the constitutional limitations and that he may safely rest upon the assumption that he is not bound to be continually on the alert against the enactment of unconstitutional legisla- tion, and that he will have the right, if such legislation should be enacted, to re- sort to tlie courts for protection against it.-""-*^ (ccc) Legislative Construction of Statutes. — See post, "Impairment by Legis- lative Construction of Statutes," \'III, C, 2. (c) Exercise of Legislative or Political Functions by the Judiciary — (aa) Generally as to Judicial Legislation. — See note 86. (cc) Generally as to International Relations; Determination of Rightful Sov- ereign or Government. — Admission or Exclusion of Aliens. — See note 3. 223-53a. Legislative judgments and de- crees — Due process — Power to make leg- islation res judicata. — Prentis v. Atlantic Coast Line Co., 211 U. S. :310, 53 L. Ed. 150, 29 S. Ct. 67. Same — Prescribing rates. — For example the making or prescribing of rates is a legislative function whether done by leg- islature or a state railroad corporation commission; and the decision or order ot such body in prescribing the rates can not be made res judicata, and a citizen deprived of the right to resort to the courts to protect his constitutional rights, by reason of the fact that he was given notice and opportunity to be heard, be- fore the commission or legislative body, before the proposed rule or order pre- scribing the rates was promulgated. Such a decision is not judicial nor rendered in a judicial proceeding, since litigation can not arise until legislation has been enacted. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150. 29 S. Ct. 67. 228-86. Generally as to judicial legisla- tion. — The legislature provided it acts within its constitutional authority, is the arbiter of the public policy of the state, and while the courts, unaided by legis- lative declaration, and applying the prin- ciples of the common law, may uphold or condemn contracts in the light of what is conceived to be public policy, its determination as a rule for future action, must yield to the legislative will when expressed in accordance with the organic law. Chicago, etc., R. Co. v. McGnire, 219 U. S. 549, 55 L. Ed. 328. 31 S. Ct. 259. 231-3. Admission and exclusion of aliens.— vSee, generally, ante, ALIENS, p. IS. "Repeated decisions of this court have determined that congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to exec- utive officers; that the deportation of an alien who is found to be here in viola- tion of law is not a deprivation of liberty without due process of law, and that the provisions of the constitution securmg the right of trial by jury have no appli- cation." Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671. Congress could empower the secretary of commerce and labor to enforce, with- out invoking the judicial power, the pen- alty imposed by Act March 3, 1903, c. 1012, § 9, 32 Stat. 1215, for bringing into the United States an alien afiflicted with a loathsome or dangerous contagious dis- ease. Judgment, International Mercan- tile Marine Co. v. Stranahan (C. C. 1907) 155 F. 428, affirmed. Oceanic Steam Nav. Co. V. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671; International, etc.. Marine Co. v. Stranahan, 214 U. S. 344, 53 L. Ed. 1024, 29 S. Ct. 678. Making the official medical examina- tion at the port of arrival conclusive for the purpose of imposing the penalty, en- forceable by refuJsing clearance« papers until paid, which is authorized by Act March 3, 1903, c. 1012, § 9, 32 Stat. 1215, for violating its provisions by bringing into the United States an alien afflicted with a loathsome or contagious disease, does not render such statute repugnant to Const. U. S. Amend. 5, as taking prop- erty without due process of law. judg- ment. International Mercantile Marine Co. V. Stranahan (C. C. 1907) 155 F. 428, affirmed. Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671; International, etc.. Marine 298 Vol. IV COXSTITUTIOXAL LAW. 232-244 Rightful Government of States of the United States. — See note 6. (kkj The Pozi'er of Taxation Not Judicial.— ^See note 38. (qq) Regulation of Public Serzice Corporation, Including Regulation of Rates. — The power to regulate public service corporations, including the regu- lation of rates, is legislative in its character and may be exercised directly by the legislature itself. But the legislature may delegate to an administrative body the execution in detail of the legislative power of regulation.-*^^ So far as the ■Co. V. Stranahan, 214 U. S. 344, 53 L. Ed. 1024, 29 S. Ct. 678. Congress had power to confide to the secretary of coinnierce and labor the en- forcement of the penalty for bringing into the United States an alien afflicted with a loathsome or dangerous contagious dis- ease, in violation of Act March 3, 1903, c. 1012, § 9. 32 Stat. 1215, and, when the official medical examination at the port of arrival shows that the alien was suf- fering from the disease at the time of embarkation, the existence of which might have been detected by a competent med- ical examination then made as the stat- ute requires, does not render such statute open to the objection that it defines a criminal ofifense, and authorizes a purely administrative officer to determine whether the defined crime has been committed, and, if so, to inflict a punishment. In- ternational, etc., Marine Co. v. Stranahan. 214 U. S. 344, 53 L. Ed. 1024, 29 S. Ct. 678. 232-6. Rightful government of one ot the United States. — Pacific States Tel., etc., Co. :■. Oregon, 223 U. S. 118, 56 L. Ed. 377, 32 S. Ct. 224: Kiernan v. Port- land. 223 U. S. 151, 56 L. Ed. 386, 32 S. Ct. 231. See, also, post, "Political De- partment Charged with Duty of Enforc- ing Guaranty," VI, D, 5, d, (2). 241-38. The power of taxation not judi- cial. — In the federal government, the right to select the measure and objects of taxa- tion devolves upon congress, and not upon the courts, and such selections are valid imless constitutional limitations are over- stepped. It is no part of the function of a court to inquire into the reasonableness of the excise, either as respects the amount or the property upon which it is imposed. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342; Patton V. Brady, 184 U. S. 608, 46 L. Ed. 713, 22 S. Ct. 493; McCray v. United States, 195 U. S. 27, 58, 49 L. Ed. 78, 24 S. Ct. 769. Except as restrained by its own con- stitution or by the constitution of the United States, the state of Texas, by its legislature, has full power to prescribe any system of taxation which, in its judg- ment, is best or necessary for its people and government; and, so far as the power of the United States is concerned, the state has the right, by any rule it deems proper, to classify persons or businesses for the purposes of taxation, subject to the condition that such classification shall not be in violation of the constitution of the United States. The requirement by the state, that all wholesale dealers in specified articles shall pay a tax of a given amount on their occupation, without ex- acting a similar tax on the occupations of wholesale dealers in other articles, can not, on the face of the statute or by reason of any facts within the judicial knowledge of the court, be held, within the meaning of the 14th amendment, to deprive the taxpayer of his property without due proc- ess of law, or to deny him the equal pro- tection of the laws; and the federal court can not interfere with the enforcement of the statute simply because it may dis- approve its terms, or question the wisdom of its enactment, or because it can not be sure as to the precise reason inducing the the state to enact it. Southwestern Oil Co. V. Texas, 217 U. S. 114. 54 L. Ed. 688, 30 S. Ct. 496. 244-49a. Regulation of public service corporations including regulation of rates. — Honolulu, etc.. Land Co. v. Territory of Hawaii, 211 U. S. 282, 291, 53 L. Ed. 186, 29 S. Ct. 55; Prentis v. Atlantic Coast Line Co., 211 U. S. 210. 225. 53 L. Ed. 150, 29 S. Ct. 67. See post, POLICE POWER. The power to regulate rates and sched- ules is a legislative function, and it is an unwarranted assumption of legislative powers for a court, not invested with any special statutory authority, tior having the property in its control by receiver- ship, to undertake, solely by virtue of its general judicial powers, to control to such an extent and in such detail the business of a transportation corporation. A fortiori is this true .where the legis- lature has delegated this power to an administrative body. Honolulu, etc.. Land Co. V. Territory of Hawaii, 211 U. S. 282, 53 L. Ed. 186, 29 S. Ct. 55. The enforcement of the continuance by a Hawaiian street railway company of a ten minutes schedule on certain of its lines, upon the giound that the public con- venience demands such a schedule, is net within the limits of the judicial power, and is totally inconsistent with the power to regulate the management of the street railway in this respect, which is ulti- mately vested by Haw. Rev. Laws. § 843 (Sess. Laws 1905. act No. 78), in the exec- utive authorities. Plonolulu, etc.. Land Co. V. Territory of Hawaii, 211 U. S. 282, 53 L. Ed. 186, 29 S. Ct. 55. 299 244-248 CONSTITUTIONAL LAW. Vol. IV. constitution of the United States is concerned, there is nothing to prevent any state, if it sees fit to do so, frorrt uniting legislative and judicial functions with respect to these matters in the same hands.'* ^^ (rr) Exercise of Administrative Functions in Carrying Decrees into Effect. — The exercise of administrative functions by a court of equity in carrying out the provisions of its valid decrees is not unlawful as an assumption of execu- tive or legislative functions.^^'^ (d) Poiver of Congress to Impose Legislative or E.vecntive Duties upon the Judiciary — (aa) Generally. — See note 50. (e) Poiver to Impose Judicial Functions upon Nonjudicial Tribunals. — See note 61. Judicial Powers of the States. — See ante, "Power of Body Politic with Re- spect to Distribution of Powers," VI, D, 3, d, (1). (4) The Departments Independent and Co-Ordinatc; None to Coerce or Con- 244-49b. Same — State may unite legis- lative and judicial functions in same hands. — Prentis v. Atlantic Coast Line Co., 211 U. S. 210. 225, 53 L. Ed. 150, 29 S. Ct. 67. 244-49C. Exercise of administrative functions in carrying decrees into effect. — Montezuma Canal Co. v. Smithville Ca- nal Co., 218 U. S. 371, 54 L. Ed. 1074, 31 S. Ct. 67, reversing 11 Ariz. 99, 89 Pac. 512. The bounds of judicial authoritj- are not transcended by the appointment by a court of a water commissioner charged with the duty of distributing the waters of a river among the various irrigation canals according to the adjudged prior- ities, and imposmg upon the parties a pro rata liability for his salary. (1910) Monte- zuma Canal Co. v. Smithville Canal Co., 218 U. S. 371, 54 L. Ed. 1074, 31 S. Ct. 67, reversing decree (1907) 89 Pac. 512, 11 Ariz. 99. Because it was within the legislative power to provide administrative machin- ery to supervise the common use of water in a flowing stream by those having a lawful right to appropriate the water of that stream for beneficial use, it does not result that the decree entered by the court was in excess of its authority. On the contrary, in view of the absence of legislative action on the subject, and of the necessity which manifestly existed for supervising the use of the stream by those having the right to take the water in accordance with the decree which, un- doubtedly to that extent, the court was authorized to render, the action taken by the court did not transcend the bounds of judicial authority, and there- fore is not justly amenable to the attack made upon it. Montezuma Canal Co. v. Smithville Canal Co., 218 U. S. 371, 54 L. Ed. 1074, 31 S. Ct. 67. 244-50. Power of congress to impose legislative or executive functions upon the judiciary. — United States v. Evans, 213 U. S. 297, 53 E. Ed. 803, 29 S. Ct. 507; Standard Oil Co. v. United States, 221 U. S. 1, 55 h. Ed. 619, 31 S. Ct. 502, af- firming 173 Fed. 177. Same — Determination of moot ques- tions. — The review of rulings of the trial court in a criminal case by the appeal taken, under D. C. Code, § 935, on be- half of the government after acquittal, on which the court has no power to set aside the verdict, involves a determination of moot questions only, which is not a ju- dicial function, and can not be required of a federal court by congress. United States V. Evans, 213 U. S. 297, 53 L. Ed. 803, 29 S. Ct. 507, following United States V. Ferreira, 13 How. 40, 52, 14 L. Ed. 42; Hayburn's Case, 2 Dall. 408, 410, 1 L. Ed. 436. Monopolies in restraint of trade — Leav- ing judiciary to determine what consti- tutes, within the statute. — Legislaiive power is not unconstitutionally delegated to the courts by the provisions of Act July 2. 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), prohibit- ing combinations in restraint of interstate or foreign trade or commerce, or the ino- nopolization or attempt to monopolize any part of such commerce, because the general language of these provisions leaves it to the judiciary to decide whether in a given case the particular acts come within the condemnation of the statute. Standard Oil Co. v. United- States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502, affirming judgment (C. C. 1909) United States v. Standard Oil Co. of New Jersey, 173 F. 177. 248-61. Same matters may or may not be brought under judicial cognizance. — It is within the competency of con- gress, when legislating as to matters ex- clusively within us control, to impose appropriate obligations and sanction their enforcement by reasonable money pen- alties, without the necessity of invoking the judicial power. Oceanic Steam Nav.. Co. V. Stranahan, 214 U. S. 320, 53 L> Ed. 1013, 29 S. Ct. 671. 300 \^ol. IV. COXSTITUTIOXAL LAW. 251-252 trol Another — (b) Independence of the Legislative Branch — (aa) Po-d'er of Judiciary to Declare Statutes l'uconstitutio)ial. — See note 68. Beyond Power of Legislature to Make Statutes Res Adjudicata. — The state can not make a legislative act res adjudicata by providing for notice and hearing of interested parties before the enactment of the law. Nor can a citi- zen be deprived of the right to resort to the courts for the purpose of redressing the prosecution of an act upon the ground that he was negligent or guilty of laches in not appearing before the legislative body and opposing the enactment of the act of which he complains. On the other hand, it may be said that a citi- zen has the right to assume that the legislature will proceed with due respect to constitutional restrictions, and may safely rest upon the assumption that he is not bound to be continually on the alert against the enactment of unconstitu- tional legislation, and that he will have the right, if such legislation should be enacted, to resort to the courts for protection against the same.*'^^ For exam- ple, the making or prescribing of rates is a legislative function, whether done by the legislature or by a state railroad or corporation commission, and the deci- sion or order of such body in prescribing the rates can not be made res adjudi- cata and persons, natural or corporate, deprived of the right to resort to the courts to protect their constitutional rights, by reason of the fact that all inter- ested persons were given notice and afforded opportunity to be heard before the commission or other legislative body in opposition to the rule or order prescrib- ing the rates while the matter was yet pending before such body. Such a deci- sion is not judicial, nor rendered in a judicial proceeding, since litigation can not arise until after legislation out of which it must arise has been enacted.^^'' Statute to Be Invalidated Only in Clear Cases. — See note 69. 251-68. Power and duty of court to de- clare statute unconstitutional. — There can be at this day no doubt, on the. one hand, that the courts, on constitutional grounds, may exercise the power of refusing to enforce legislation, nor, on the other hand, that that power ought to be exer- cised onl}^ in the clearest cases. The constitutional invalidity should be mani- fest, and where that invalidity rests upon disputed questions of fact, the invali- dating facts must be proved to the satis- faction of the court. Knoxville v. Knox- ville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 251-68a. Beyond power of legislature to make statute res adjudicata. — Prentis z'. Atlantic Coast Line Co.. 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. 251-68b. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. 252-69. Statute to be invalidated only in clear cases. — An act of congress is not to be declared invalid except for reasons so clear and satisfactory as to leave no doubt of its unconstitutionality. To be unconstitutional, it is not sufficient that a statute goes to the verge of constitu- tional power; it must go beyond that power, and in case of real doubt the law must be sustained. El Paso, etc., R. Co. V. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21; Interstate, etc., R. Co. v. Commonwealth, 207 U. S. 79, 52 L. Ed. 111. 28 S. Ct. 26; St. Louis, etc., R. Co. V. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616; McLean v. Arkansas, 211 U. S. 539, 53 L. Ed. 315, 29 S. Ct. 206; Wil- liams V. Arkansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493; Home Tel., etc., Co. V. Los Angeles, 211 U. S. 265, 281, 53 L. Ed. 176, 29 S. Ct. 50; The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141; New York, etc.. R. Co. V. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304; S. C, 212 U. S. 500, 53 L. Ed. 624, 29 S. Ct. 309. Statutes construed so as to maintain constitutionality — Statutes susceptible of two constructions. — Every statute is to be construed so as to uphold its consti- tutionality where it can be done without doing violence to the language of the act itself; and where two interpretations of a statute are in reason admissible, one of which creates a repugnancj- to the constitution and the other avoids such repugnancy, the one which makes the statute harmonize with the constitution must be adopted. New York, etc., R. Co. Z-. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304; S. C, 212 U. S. 500, 53 L. Ed. 624, 29 S. Ct. 309; The Abbey Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310; Attorney General v. Delaware, etc., Co., 213 U. S. 366, 407, 53 L. Ed. 835, 29 S. Ct. 527; Knights, etc., Indemnity Co. v. Jarman. 187 U. S. 197, 205, 47 L. Ed. 139, 23 S. Ct. 108; The Em- ployers' Liability Cases, 207 U. S. 463, 501. 52 L. Ed. 297, 28 S. Ct. 141. The rule plainly must mean that where a statute is susceptible of two construc- 301 252 CONSTITUTIONAL LAW. \'ol. IV. Conflict of State with Federal Constitution — Acceptance of Construc- tion of State Court. — In determining the constitutionality of a state law as being in conflict with the federal constitution or not, whether from the stand- point of due process of law or otherwise, the federal supreme court takes the statute as the state court has construed it, and accepts it to mean as a local law what the state court says it means. In other words, whatever may be the seem- ing effect of the statutes upon its face, or whatever construction the federal su- preme court might have placed upon it independent of the construction given by the state court, it will not be held invalid as being in conflict with the federal constitution or with the laws and treaties made under the authority thereof, if it has been construed by the state court in such a manner as to remove any ap- parent conflict with the federal constitution, or with the laws and treaties made under the authority thereof. "^^ tions, b}' one of which grave and doubt- ful constitutional questions arise and by the other of which such questions are avoided, the duty of the federal supreme court is to adopt the latter. Attorney General v. Delaware, etc., Co., 213 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527; Harri- man v. Interstate Commerce Comm., 211 U. S. 407, 53 L. Ed. 253, 29 S. Ct. 115. But this does not imply if the text of an act is unambiguous that it maj' be rewritten to accomplish that purpose. The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141. It is the court's duty to uphold a stat- ute when it is fairly susceptible of two interpretations, one which will uphold its constitutionality, and the other defeat it, though the former be the less natural. (U. S. Sup., Pa., 1909) Attorney General V. Delaware, etc., Co., 213 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527, reversing judg- ment (C. C. 1908) 164 F. 215. Not sufficient that possible evil or in- justice may result from operation of stat- ute. — It is not sufficient to invalidate a statute that possible evil or injustice may result from its operation. Constitutional law, it is said, like all mortal contrivances, must take some chances, and statutes are not to be invalidated because of the pos- sibility that hard cases may arise there- under. Attorney General v. Delaware, etc., Co., 213 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527; The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270; American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200; Blinn v. Nelson, 222 U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1. Thus the Oklahoma Act, Laws 1899, p. 186, § 2, excluding from the territory illuminating fluids which have a specific gravity above 46 degrees Baume, was held not to be unconstitutional because of the possibility that it might operate to exclude some oils which were as safe for use as those which complied with the statutory standard. Waters-Pierce Oil Co. V. Deselms, 212 U. S. 159. 53 L. Ed. 453, 29 S. Ct. 270. If the legislature thinks that a year is long enough to allow a party to recover his property from a third hand, and es- tablishes that time in cases where he has not been heard of for fourteen years, and presumably is dead, it acts within its con- stitutional discretion. Xow and then an extraordinary case may turn up, but con- stitutional law, like other mortal con- trivances, has to take some chances, and in the great majority of cases, no doubt, justice will be done. Blinn v. Nelson, 222 U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1. To argue that the provisions of a stat- ute are repugnant to the due process clause because a case may be conceived where rights in and to property would be adversely affected without notice be- ing actually conveyed by the proceed- ings is, in effect, to deny the power of the state to deal with the subject. The criterion is not the possibility of con- ceivable injury, but the just and reason- able character of the requirements, hav- ing reference to the subject with which the statute deals. American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. Where statute may or may not be within legislative authority according to circumstances. — It is a well settled rule of constitutional exposition that if a stat- ute may or may not be, according to cir- cumstances, within the limits of legis- lative authority, the existence of the cir- cumstances necessary to support it must be presumed. Home Tel. Co. v. Los Angeles, 211 U. S. 265, 281, 53 L. Ed. 176, 29 S. Ct. 50. State enactments — As being in conflict with the state constitution. — See ante, "State Constitutions,'' III, A, 2. 252-69a. Conflict of state law with fed- eral constitution — Acceptance of con- struction of state court. — Kentucky Union Co. V. Commonwealth, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171; Brodnax v. Mis- souri, 219 U. S. 285. 55 L. Ed. 219, 31 S. Ct. 238; Palmer v. Texas, 212 U. S. 118, 302 Vol. IV. CONSTITUTIONAL LAW. 252-254 Same — Limitations of Doctrine — Bailey v. Alabama. — Uut while it has been generally held that the supreme court of the United States, in determining whether a state law is in conflict with any provision of the federal constitution will accept, as a part thereof, the construction placed upon the same by the state court, this doctrine received a severe jolt in the case of Bailey %'. Alabama, 219 U S. 219, 55 L. Ed. 191, 31 S. Ct. 145, in which Mr. Justice Hughes, delivering the opinion of the majority of the court, held that the Alabama statute making it a crime for any person to contract for labor and services of another and receive advances in money or property with the intention of defrauding such other out of such advances, and making the failure to perform the contract or to refund the advances without just cause prima facie evidence of such fraudulent intent, was not relieved of this objectionable feature by the ruling of the state court to the effect that the jury was not controlled by the presumption even though unre- butted and migh.t still find the accused not guilty, even in the absence of evidence tending to rebut the statutory presumption. "''''' Court Will Not Volunteer an Opinion as to Constitutionality. — See note 70. 131, 53 L. Ed. 435, 29 S. Ct. 230; Collins V. Texas, 223 U. S. 288, 56 L. Ed. 439. 32 S. Ct. 286; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337, citing Weightman v. Clark, 103 U. S. 256, 260, 26 L. Ed. 392; IMorley V. Lake Shore, etc., R. Co., 146 U. S. 162, 166, 36 L. Ed. 925, 13 S. Ct. 54; Olsen v. Smith, 195 U. S. 332, 342, 49 L. Ed. 224, 25 S. Ct. 52. See post, COURTS. For example, the construction placed by the highest court of the state upon N. Y. Laws 1908, chap. 429. enacted to safeguard natural mineral springs against waste and impairment, must be accepted by the federal courts in determining the validity of such statute under the federal constitution. Lindsley c'. Natural Car- bonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. The ruling of the state court that osteopaths are persons practicing medi- cine, within the meaning of Tex. Laws 1907, chap. 123, providing for licensing and registering medical practitioners, will be followed by the federal supreme court in determining the constitutionality of such statute on writ of error to the state court. Collins v. Texas, 223 U. S. 288. 56 L. Ed. 439, 32 S. Ct. 286. The objection that the retrospective features of the act of Ky., March 15, 1906, c. 22, art. 3, forfeiting land titles for fail- ure to list and pay taxes, make the law an ex post facto one, is not valid, since such legislation, as construed by the high- est court of the state, imposes no retro- spective penalties or punishment of a criminal nature. Kentucky Union Co. v. Commonwealth, 219 U. S. 140, 55 L. Ed. 137. 31 S. Ct. 171. The validity of Kentucky Acts 1904, chap. 85, so far as it prohibits domestic corporations from teaching white and negro pupils in the same institution, can not be deemed affected by its possible invalidity under the federal constitution as to individuals, where the highest state court considers the act separable, and, while sustaining it as an entirety, gives an independent reason which applies only to corporations. In other words since the state court held that corporations are not entitled to all the privileges and immunities to which individuals are en- titled and that although the statute, as applied to individuals might be invalid, yet if it was separate, it would be upheld as to corporations. Berea College v. Commonwealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. 252-69b. Same — Limitations of doc- trine — Bailey v. Alabama. — Bailey v. Ala- bama, 219 U. S. 219, 55 L. Ed. 191. 31 S. Ct. 145. Speaking upon this point ^Ir. Justice Hughes says: "But the controlling con- struction of the statute is the affirmance of this judgment of conviction. It is not sufficient to declare that the statute does not make it the duty of the jury to con- vict, where there is no other evidence but the breach of the contract and the failure to pay the debt. The point is that, in such a case, the statute authorizes the jury to convict. It is not enough to say that the jury may not accept that evi- dence as alone sufficient; for the jury may accept it, and they have the express warrant of the statute to accept it as z basis for their verdict. And it is in this light that the validity of the statute must be determined." Bailev v. Alabama. 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. 254-70. Court will not volunteer opin- ion as to constitutionality — Point must be directly involved. — Xo objections to the validity of a statute will be consid- ered which do not properly arise in the case before the court. Flint v. Stone 303 255 CONSTITUTIONAL LAW. Vol. IV. Statutes Void in Part and Valid in Part. — See post, Statutes. (bb) Judicial Control of Lcgislatizfe Discretion — (aaa) Generally. — See note 75. Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. The federal supreme court will not undertake to decide the constitutionality of a statute upon a point not presented by the record; in other words, where no case is presented involving the question which it sought to have determined. Flint V. Stone Tracy Co., 220 U. S. lOT, 55 L. Ed. 389, 31 S. Ct. 342. See, also, Willcox V. Consolidated Gas Co., 212 U. S. 19, 53, 53 L. Ed. 382, 29 S. Ct. 192; Southern R. Co. v. King, 217 U. S. 524, 525, 54 L. Ed. 868, 30 S. Ct. 594; Western Union Tel. Co. v. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 S. Ct. 399; Waters-Pierce Oil Co. V. Deselms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. The federal supreme court will not consider the question of the constitution- ality of the clause of Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), imposing penalties for violations of its provisions forbidding railway carriers from transporting in in- terstate commerce commodities with which they are associated or in which they are interested, in an action seeking to enforce such provisions by injunction or mandamus, in which no recovery of penalties is sought. Judgment (C. C. 1908) 164 F. 215, reversed. Attorney Gen- eral V. Delaware, etc., Co., 213 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527. The constitutionality of an ordinance prescribing rates can not be attacked upon the ground that under the charter of a city, such ordinances upon the peti- tion of 15 per cent of the electors of the city are required to be submitted to the people for adoption or rejection, where the ordinance in question was not adopted in that manner. Home Tel., etc., Co. v. Los Angeles. 211 U. S. 265, 280, 53 L. Ed. 176, 29 S. Ct. 50. 255-75. Judicial control of legislative discretion — Wisdom, policy, justice or expediency, etc., of legislation — Abuse of power, etc. — Courts have no responsibil- ity for the justice, wisdom, policy or expediency of legislation, and no duty ex- cept to enforce the law as it is written, unless it is clearlj'^ beyond the constitu- tional power of the law making body. The legislature being familiar with local conditions, is primarily the judge of the necessity of its enactments, and the mere fact that a court may differ with the leg- islature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of the legislative power. McLean v. Arkan- sas, 211 U. S. 539, 53 L. Ed. 315, 29 S. Ct. 206; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 S. Ct. 358; Mugler V. Kansas, 123 U. S. 623, 31 L. Ed. 205, 8 S. Ct. 273; Williams v. Arkansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493; St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281. 52 L. Ed. 1061, 28 S. Ct. 616. The policy, wisdom, justice and fair- ness of a state statute is not subject to review or criticism by the federal su- preme court. That court is not invested with the jurisdiction to pass upon the expediency, wisdom, or justice of the laws of the states as declared by their courts, but only to determine their con- formity with the federal constitution and the paramount laws enacted pursuant to it. Hunter v. Pittsburgh, 207 U. S. 161, .■)2 L. Ed. 151, 28 S. Ct. 40; Twining v. Xew Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. The scope of judicial inquiry in decid- ing the question of power is not to be confused with the scope of legislative considerations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discre- tion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the legisla- ture, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance. Chicago, etc., R. Co. v. McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. The legislature, provided it acts within its constitutional authority, is the arbiter of the public policy of the state. While the court, unaided by legislative declara- tion, and applying the principles of the common law, may uphold or condemn contracts in the light of what is con- ceived to be public policy, its determina- tion as a rule for future action must yield to the legislative will when expressed in accordance with the organic law. Chi- cago, etc., R. Co. V. McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. In testing the constitutionality of an act the court must confine itself to the power to pass it, and may not consider evils which it is supposed will arise from the execution of the law, whether they be real or imaginary. The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S.- Ct. 141; Waters-Pierce Oil Co. 304 Vol. I\' CONSTITUTIONAL LAW. 260-269 (bbb ) Legislative Discretion as to Occasion or Necessity, Choice of Means, etc. — See notes 78, 88. (cc) Motives of Legislature Not Subject to Judicial Enquiry. — See note 23. V. Deselms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. ]Mere suggestions of inconvenience or harm are wholly irrelevant, as they can not be allowed to influence the court in determining the question of the consti- tutional power of congress to enact a law. Attorney General v. Delaware, etc.. Co., 213 U. S. 366, 53 L. Ed. 835. 29 S. Ct. 527. That because of possible results, a power lawfully exercised may work dis- astrously, is no reason why the courts must interfere to prevent its exercise, be- cause of the consequences feared. No such authority has ever been invested in any court. The remedy for such wrongs, if such in fact exist, is in the abilitj^ of the people to choose their own repre- sentatives, and not in the exertion of un- warranted powers by courts of justice. Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Abuse of power. — The principle that the power to tax is the power to destroy is pertinent only when there is no power to tax a particular subject, and has no relation to a case where such right ex- ists. Flint V. Stone Tracy Co., 220 U. S. 107. 55 L. Ed. 389. 31 S. Ct. 342, quoting Knowlton v. Moore, 178 U. S. 41, 60, 44 L. Ed. 969, 20 S. Ct. 747. In other words, the power to destroy, which may be the consequence of taxa- tion, is a reason why the right to tax should be confined to ' subjects which may be lawfully embraced therein, even though it happens that in some partic- ular instance no great harm rnay be caused by the exercise of the taxing au- thority as to a subject which is bej'ond its scope. But this reasoning has no ap- plication to a lawful tax. for if it had, there would be an end of all taxation; that is to say. if a lawful tax can be de- 'feated because the power which is mani- fested by its imposition may, when fur- ther exercised, be destructive, it would follow that every lawful tax would be- come unlawful, and therefore no taxation whatever could be levied. Flint v. Stone Tracy Co., 220 U. S. . 107. 55 L. Ed. 389, 31 S. Ct. 342. quoting Knowlton v. Moore, 178 U. S. 41, 60, 44 L. Ed. 969, 20 S. Ct. 747. The federal supreme court can not set aside legislation because it is harsh. Shevlin-Carpenter Co. z: Minnesota, 218 U. S. 57, 54 L. Ed. 930, 30 _S. Ct. 663. 260-78. Legislative discretion as to oc- casion, necessity, choice of means, etc. — See, also, ante, "Generally," VI, D, 3, 4- (4), (b), (bb), (aaaV 12 U S Enc— 20 305 Although the means employed by the state to accomplish an object which it is entitled to accomplish may be deemed un- wise and inexpedient and not the best or most efYective which might have been em- ployed, they will not be condemned or disregarded by the courts if they have a real relation to that object. Chicago, etc., R. Co. V. Arkansas, 219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275. Although there may be room for contro- versy as to whether a state law is neces- sary, yet if it can not be said that it was so unreasonable as to justify the court in ad- judging that it is merely an arbitrary ex- ercise of power and not germane to the objects which the legislature had in view, it is a valid enactment and can not be de- clared unconstitutional bj' the federal courts. Chicago, etc.. R. Co. v. Arkansas. 219 U. S. 453, 'oo L. Ed. 290, 31 S. Ct. 275. 261-88. Congress permitted a wide dis- cretion. — If a federal statute imposing a lax is within the legitimate powers of congress, it is for that body to determine what means are appropriate and adapted to the purpose of making the law effectual. In this connection the often-quoted dec- laration of Chief Justice Marshall in Mc- Culloch V. Marj^land, 4 Wheat. 316, 421, 4 L. Ed. 579, is appropriate: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Flint z'. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389. 31 S. Ct. 342. 269-23. Motives of legislature not sub- ject to judicial enquiry. — The power, and not the motive, is the test to be resorted to for the purpose of determining the con- stitutionality of legislative action. If a statute is enacted in due form, the courts will not enquire into the knowledge, negli- gence, methods or motives of the legisla- ture. Hammond Packing Co. v. Arkansas, 212 U. S. 322. 343. 53 L. Ed. 530, 29 S. Ct. 370; Calder v. Attornev General. 218 U. S. 591, 54 L. Ed. 1163, 31 S. Ct. 122; United States V. Des Moines, etc., R. Co.. 142 U. S. 510, 544, 35 L. Ed. 1099, 12 S. Ct. 308. The knowledge, negligence, methods, or motives of the legislature will not be in- quired into by the courts in determining the validity of a statute repealing a cor- porate charter, if the statute is passed in due form. Calder f. Attorney General. 218 U. S. 501. 54 L. Ed. 1163. 31 S. Ct. 122. Motives of persons who procured enact- ment of legislation. — Tiie constitution- ality of statutes will not be judged by the 271-277 CONSTITUTIONAL LAW. Vol. IV. Limitation of Doctrine. — See note 25. (ff) Where Statute Othcnvisc Unobjectionable Is Unfaithfully Adininis- tered. — Statute Not Invalidated because of Mere Possibility of Evil Ad- ministration. — See ante, "J^-^dicial Control of Legislative Discretion," VI, D, 3, d, (4), (b), (bb), et seq. (c) Independence of the Executive — (bb) Judicial Control of the Executive — (aaa) The Federal Executive and His Subordinates. — See notes 40, 42, 47. motives and purposes of those who per- suaded the legislature to enact them. Polk V. Mutual, etc., Life Ass'n, 207 U. S. 310. 52 L. Ed. 222, 28 S. Ct. 65. 271-25. Limitations of doctrine. — In Mugler V. Kansas, 123 U. S. 623, 661, 31 L. Ed. 205, 8 S. Ct. 273, it was said that the courts, when determining whether a stat- ute is consistent with the fundamental law, must not deem themselves bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty, in- deed, are under a solemn duty, to look at the substance of things, whenever they en- ter upon the inquiry whether the legisla- ture has transcended the limits of its au- thority. Western Union Tel. Co. v. Cole- man, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. But the courts will not lightly attribute improper motives to the lawmaking power. Red "C" Oil Mfg. Co. v. Board, 222 U. S. 380, 56 L. Ed. 240, 32 S. Ct. 152; Florida, etc., R. Co. V. Reynolds, 183 U. S. 471, 46 L. Ed. 283, 22 S. Ct. 176; Ellis v. United States, 206 U. S. 246, 51 L. Ed. 1047, 27 S. Ct. 600. 276-40. Other officers — Interstate com- merce commission. — The courts can not, imder the guise of exerting judicial power, usurp merely administrative functions by setting aside an order of the interstate commerce commission within the scope of the power delegated to such commission, upon the ground that such power was un- wisely or inexpediently exercised. De- cree, Chicago, & A. R. Co. v. Interstate Commerce Commission (C. C. 1908), 173 F. 930, reversed. Interstate Commerce Comm. V. Illinois Cent. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Commerce Comm. v. Chicago, etc., R. Co.. 215 U. S. 479, 54 L- Ed. 291, 30 S. Ct. 163. 276-42. As to absolute and ministerial duties. — Since Marbury z;. Madison, 1 Cranch 137, 2 L. Ed. 60, it has been held that there is a distinction between those acts which require the exercise of discre- tion or judgment and those which are purely ministerial, or are undertaken with- out authority, which may become the sub- ject of review in the courts. Garfield v. Goldsby, 211 U. S. 249, 261, 53 L. Ed. 168, 29 S. Ct. 62, following in Garfield v. Alli- son, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. Mandamus to compel restoration of names illegally stricken from Indian land enrollment. — Thus, where pursuant to an act of congress the name of an Indian has been certified by the Dawes commission as one found to be entitled to enrollment for distribution, and such list has been ap- proved by the secretary of the interior and the roll made up and distributed as re- quired by statute, the land allotted and a certificate therefor awarded to such en- rolled Indian, as provided by § 23 of act of July 1, 1902, such Indian has acquired a valuable right and the secretary of in- terior has no power to strike down with- out notice and having the rights thus ac- quired by striking such name from the rolls. Such action on the part of the sec- retary is without due process of lav,', and mandamus will lie to compel restoration of the name. Garfield v. Goldsby, 211 U. S. 249, 53 L. Ed. 168, 29 S. Ct. 62; Garfield V. Allison, 211 U. S. 264, 53 L. Ed. 176. 29 S. Ct. 67. 277-47. Injunction against secretary of war — Enforcement of unconstitutional act — Enjoining criminal proceedings. — The exemption of the United States from suit does not preclude an action to prevent the secretary of war from causing criminal proceedings to be instituted against a ri- parian owner because of the reclamation and occupation of his land outside the pre- scribed harbor limits, if his rights of prop- erty were wrongfully invaded in fixing such limits. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. One whose property rights have been invaded in fixing harbor lines may main- tain an action to restrain the secretary of war from causing threatened criminal pro- ceedings to be instituted against him in accordance with the provisions of the act of congress of March 3, 1889 (30 Stat, at L. 1121, 1151-1153. chap. 425, U. S. Comp. Stat. 1901, pp. 3541, 3542, 3544), §§ 11, 12, 117, for undertaking the reclamation and occupation of land belonging to him be- yond the prescribed harbor limits. Phil- adelphia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. If the conduct of the defendant consti- tutes an unwarrantable interference with property of the complainant, its resort to equity for protection is not to be defeated upon the ground that the suit is one against the United States. The exemp- tion of the United States from suit does not protect its officers from personal lia- bility to persons whose rights of property they have wrongfully invaded. Philadel- phia Co. V. Stimson, 223 U. S. 605, 56 L. 306 Vol. IV. CONSTITUTIONAL LAW. 278 (bbb) State Executive Officers. — Injunction to Prevent Enforcement of Unconstitutional Act. — See note 52. Ed. 570, 32 S. Ct. 340; The Flying Fish, 2 Cratich 170, 2 L. Ed. 243; United States v. Lee, 106 U. S. 196, 221, 27 L. Ed. 171, 1 S. Ct. 240; Belknap v. Schild, 161 U. S. 10, 18, 40 L. Ed. 599, 16 S. Ct. 443; Tindal v. Wes- ley, 167 U. S. 204, 42 L. Ed. 137, 17 S. Ct. 770; Scranton v. Wheeler, 179 U. S. 141, 152, 45 L. Ed. 126, 21 S. Ct. 48. 278-52. Enjoining enforcement of un- constitutional law — Enjoining criminal proceedings. — A court of equity, said this court In re Sawyer, 124 U. S. 200, 210, 31 L. Ed. 402, 8 S. Ct. 482, "has no jurisdic- tion over the prosecution, the punishment, or the pardon of crimes or misdemeanors. * * --;• Xo assume such a jurisdiction, or to sustain a bill on equity to restrain or re- lieve against proceedings for the punish- ment of offenses, * * * is to invade the do- main of the courts of common law, or of the executive and administrative depart- ment of the government." Harkrader v. Wadley, 172 U. S. 148, 170. 43 L. Ed. 399, 19 S. Ct. 119; Fitts V. McGhee, 172 U. S. 516, 531, 43 L. Ed. 535, 19 S. Ct. 269; 2 Story, Eq. Jur., § 893. .But a distinction obtains when it is found to be essential to the protection of the property rights, as to which the jurisdiction of a court of equity has been invoked, that it should restrain the defendant from instituting criminal actions involving the same legal questions. This is illustrated in the de- cisions of the federal supreme court in which officers have been enjoined from bringing criminal proceedings to compel obedience to unconstitutional require- ments. Davis, etc., Mfg. Co. v. Los Ange- les, 189 U. S. 207, 218, 47 L. Ed. 782, 23 S. Ct. 498; Dobbins v. Los Angeles, 195 U. S. 223, 241, 49 L. Ed. 169, 25 S. Ct. 18; Ex pai-te Young, 209 U. S. 123, 162. 52 L. Ed. 714, 28 S. Ct. 441; Western Union Tel. Co. V. Andrews, 216 U. S. 165, 54 L. Ed. 430, 30 S. Ct. 286. In this, there is no attempt to restrain a court from trying persons charged with crime, or the grand jury from the exercise of its functions, but the injunction binds the defendant not to re- sort to criminal procedure to enforce il- legal demands. Philadelphia Co. v. Stim- son, 223 U. S. 605. 56 L. Ed. 570, 32 S. Ct. 340. Where the officer is proceeding under an unconstitutional act, its invalidity suf- fices to show that he is without authority, and it is this absence of lawful power and his abuse of authority in imposing or en- forcing, in the name of the state, unwar- rantable exactions or restrictions, to the irreparable loss of the complainant, which is the basis of the decree. Ex parte Young, 209 U. S. 123, 159, 52 _L. Ed. 714, 28 S. Ct. 441. And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the warrant of the statute, is transcending its bounds, and thus unlawfully assuming to exercise the power of government against the individual owner, is guilty of an invasion of private property. Phila- delphia Co. Zf. Stimson, 223 U. S. 605, 5G L. Ed. 570, 32 S. Ct. 340. And in case of an injury threatened by his illegal action, tlie officer can not claim immunity from injunction process. Phil- adelphia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. Individuals, who as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to com- mence proceedings, either of a civil or criminal nature, to enforce against parties affected, an unconstitutional act, violating the federal constitution, may be enjoined by a federal court of equity from such ac- tion. Ex parte loung, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. A federal court may enjoin the attorney general of a sttxte, whose general duty is to enforce the state statutes, from pro- ceeding to enforce, against persons af- fected, a state statute which violates the federal constitution, such proceedings be- ing not prohibited by the provision of the federal constitution forbidding the main- tenance of actions against a state. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. The general discretion of the attorney general of a state, regarding the enforce- ment of the laws when and as he deems appropriate, is not interfered with by an injunction restraining him from taking any steps towards the enforcement of an unconstitutional enactment to the injury of a complainant. Ex parte Young, 209 U. S. 123, 52 L. Eu. 714, 28 S. Ct. 441. In making an officer of the state a party defendant in a suit to enjoin the enforce- ment of an act alleged to be unconstitu- tional, it is plain that such- officer must have some connection with the enforce- ment of the act, or else it is merely mak- mg him a party as a representative of the state, and there^^y attempting to make the state a party. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 728, 28 S. Ct. 441. The fact that the state officer, by vir- tue of his office, has some connection with the enforcement of the act, is the impor- tant and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. Where the state official, instead of di- rectly interfering with tangible property, is aliout to commence suits which have 307 284-287 CONSTITUTIONAL LAW. Vol. IV. e. Delegation of Constitutional Powers — (1) Devolution of Power by One Department upon Another — (c) Devolution of Judicial Functions upon the Leg- islative and Executive Departments. — See note 7'6a. (2) Delegation of Pozvers by the Legislative Departments — (a) By Con- gress — (aa) Generally. — See post, "Exceptions and Limitations; Statutes De- pendent upon the Discretion of the Executive, etc.," VI, D, 3, e, (2), (a), (ee). (ee) Exceptions and Limitations; Statutes Dependent upon the Discretion of the Executive, etc. — See note 94. for their object the enforcement of an act which violates the federal constitu- tion, to the great and irreparable injury of the complainants, he is seeking the same justification from the authority of the state as in other cases. The sov- ereignty of the state is, in reality, no more involved in one case than in the other. The state can not, in either case, impart to the official immunity from responsi- bility to the supreme authority of the United States. Ex parte Young, 209 U. S. ]23, .52 L. Ed. 714, 732, 28 S. Ct. 441. 284-76a. Devolution of judicial func- tions upon the legislative and executive departments. — Judicial powers are not un- constitutionally delegated to the secretary of war by the River and Harbor Act of March 3, 1899. c. 425, § 18, 30 Stat. 1153 (U. S. Comp. St. 1901, p. 3545), empower- ing that official, when satisfied, after a hearing of the parties interested, that a bridge over a navigable water way of the United States is an unreasonable obstruc- tion to navigation, to require such changes as will render navigation reasonably free, easy, and unobstructed. Judgment United States V. Monongahela Bridge Co. (D. C. 1908), 160 F. 712, affirmed. President, etc.. Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. 287-94. Delegation of power to heads of departments and administrative bodies. — That congress can not delegate legislative power is a principle universally recog- nized as vital to the integrity and main- tenance of the system of government ordained by the constitution. United States V. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480; Field v. Clark, 143 U. S. 649, 692, 36 L. Ed. 294, 12 S. Ct. 495. _ But the authority to make administra- tive rules is not a delegation of legisla- tive power, nor are such rules raised from an administrative to a legislative char- acter because the violation thereof is pun- ished as a public offense. United States V. Grimaud. 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480. It must be admitted that it is difficult to define the line which separates legisla- tive power to make laws, from adminis- trative authority to make regulations. This difficulty has often been recognized, and was referred to by Chief Justice Mar- shall in Wayman v. Southard, 10 Wheat. 1, 42, 6 L,. Ed. 253, where he was consider- ing the authority of courts to make rules. He there said: "It will not be contended that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate to others powers which the legislature may rightfully exercise itself." What were these nonlegislative powers which con- gress could exercise, but which might also be delegated to others, was not de- termined, for he said: "The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such gen- eral provisions to fill up the details." United States v. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480. Legislative power was not unconstitu- tionally delegated to the secretary of agri- culture by the provisions of the Forest Reserve Act (Act June 4, 1897, c. 2, 30 Stat. 35 [U. S. Comp. St. 1901, p. 1539]) and Act Feb. 1, 1905, c. 288, § 5, 33 Stat. 628 (U. S. Comp. St. Supp. 1909, p. 577), making criminal the violation of the rules and regulations covering forest reserva- tions, made and promulgated by him under authority of those statutes. (1911) United Slates V. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480, reversing judgment (D. C. 1909), 170 F. -205. Secretary of agriculture — Rules con- cerning forest reservations. — Light v. United States, 220 U. S. 523, 55 L. Ed. 570, 31 S. Ct. 485. In the nature of things it was impracti- cable for congress to provide general regulations for these various and varying details of management. Each reservation had its peculiar and special features: and in authorizing the secretary of agriculture to meet these local conditions, congress was merely conferring administrative functions upon an agent, and not delegat- ing to him legislative power. United States V. Grimaud, 220 U. S. 506, 55 L. Ed. 563. 31 S. Ct. 480. Secretary of war — Control over navi- gable waters. — Legislative powers are not unconstitutionally delegated to the secre- tary^ of war-bv the River and Harbor Act of March 3, 1899, c. 425, § 18, 30 Stat. 1153 (U. S. Comp. St. 1901. p. 3545), empower- 308 Vol. IV CONSTITUTIOXAL LAW. 291-298 (b) Delegation of Power by State Legislative Bodies — (bb) To Boards, Commissions and Similar Agencies. — See note 1. f. The Legislative Departments — (1) Legislative Department of the Federal Government — (h) Legislative Pozvcrs of Congress — (bb) Constitutional Lim- itations upon Legislative Powers — (aaa) Generally. — See note 47. (dd) Particular Pozi'ers of Congress — (iii) To Define and Punish Crime. Assumption of State's Power by Congress. — See ante, ''To Define and Pun- ish Crime." VI, D, 3, c, (4), (f j. (qqq) Pozcer to Borrow Money and Provide a Currency — (cccc) Of the Power to Provide a Currency — fddddd) Pozcer to Protect Currency and Se- cure the Benefit Thereof. — By Prohibiting Exportation of Coins.— However ing that official, when satisfied, after a hearing of the parties interested, that a bridge over a navigable water way of the United States is an unreasonable obstruc- tion to navigation, to require such changes as will render navigation reasonably free, easy, and unobstructed. Judgment, United States V. Monongahela Bridge Co. (D. C. 1908), 160 F. 712, affirmed. President, etc.. Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. The 18th section of the River and Har- bor Act of March 3d, 1899, could not re;'- sonably be taken as a delegation of legis- lative and judicial power to an executive department of the government; that the statute did not, in any real, constitutional sense, delegate to the secretary of war any power that must, under our system of government, be exclusively exercised either by the legislative or judicial branch of the government. President, etc., Bridge Co. V. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Cl. 356. Interstate commerce or other commis- sion. — The congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it maj^ require of that commis- sion the application of such rules to par- ticular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the congress. This rule has been frequently stated and illustrated in recent cases in the federal supreme court, and needs no amplification here. Interstate Commerce Com.m. v. Goodrich Transit Co.. 224 U. S. 194. 50 L. Ed. 729, 32 S. Ct. 436; Buttfield v. Stranahan, 192 U. S. 470. 48 L. Ed. 525. 24 S. Ct. 349; Union Bridge Co. T'. United States, 204 U. S. 364. 51 L. Ed. 523, 27 S. Ct. 367; United States T. Grimaud, 220 U. S. 506, 55 L. Ed. 563, 31 S. Ct. 480. Legislative power is not unconstitu- tionally delegated to the American Rail- way Association and the interstate com- merce commission by the provision of Safety Appliance Act March 2, 1893, c. 196, § 5. 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), that, after a date named, only cars with drawbars of uniform height shall be used in interstate commerce, and that the standard shall be fixed, by the asso- ciation and declared by the commission. Judgment. St. Louis, L M. & S. Ry. Co. V. Neal (1906), 98 S. W. 958, 83 Ark. 591, reversed. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 291-1. Delegation of slate legislative powers to boards, commissions, etc Red "C" Oil ^Ifg. Co.' v. Board, 222 U. S. 380, 56 L. Ed. 240, 32 S. Ct. 152; Honolulu, etc.. Land Co. v. Territorv of Hawaii, 211 U. S. 282, 291, 53 L. Ed. 186, 29 S. Ct. 55; Interstate Commerce Comm. v. Cincin- nati, etc., R. Co., 167 U. S. 479, 494, 42 L. Ed. 243. Inspection of oil — Powers of state board of agriculture.— Legislative powers are not unconstitutionally delegated to the board of agriculture by the provisions of the Xorth Carolina Oil Inspection Act of March 8, 1909 (Acts 1909, c. 554), which requires that illuminating oils sold or of- fered for sale in the state be safe, pure, and afforded a satisfactory light, leaving it to the board to determine what oils will measure up to these standards. Red "C" Oil Mfg. Co. V. Board. 222 U. S. 380, 56 L. Ed. 240, 32 S. Ct. 152, affirming decree (C. C. 1909), 172 F. 695. The power to regulate public service corporations is legislative in its character and may be exercised directly by the legis- lature itself, or the legislature may dele- gate to an administrative body the execu- tion in detail of the power of regulation, including the regulation of rates. Hono- lulu, etc.. Land Co. v. Territorj'' of Hawaii, 211 U. S. 282, 291, 53 L. Ed. 186. 29 S. Ct. 55; Prentis v. Atlantic Coast Line Co.. 211 U. S. 210. 225. 53 L. Ed. 150. 29 S. Ct. 67. 298-47. Express powers subject to ex- press limitations. — The power to regulate interstate and foreign commerce, like all others vested in congress, is complete in itself, may be exercised to its utmost ex- tent, and acknowledges no limitations other than are prescribed in the constitu- tion. The Employers' Liability Cases. 207 U. S. 463. 52 L. Ed. 297. 28 S. Ct. 141. See, also, ante, "Supremacy in Case of Conflict between State and Federal Powers," VI, D, 3, c, (6), (b), (hh). 309 305-318 CONSTITUTIONAL LAW. Vol. IV. unwise a law may be, aimed at the exportation of such coins, in the face of the axioms against obstructing the free flow of commerce, there can be no serious doubt but that the power to coin money includes the power to prevent its out- flow from the country of its origin. To justify the exercise of such a power it is only necessary that it shall appear that the means are reasonably adapted to conserve the general public interest, and are not an arbitrary interference with private rights of contract or property.^^a (eeeee) Pozver to Coin Money, Emit Bills of Credit, and Prescribe a Legal Tender, an Exclusive Power. — The power to "coin money and regulate the value thereof, and of foreign coin," is a prerogative of sovereignty and a power ex- clusively vested in the congress of the United States. The power which the government of the Philippine Islands has in respect to a local coinage is derived from the express act of congress. ^^^ (2) State Legislative Departments — (a) Nature and Scope of Powers (aa) Generally. — See note 42. (b) Constitutional Limitations upon Legislative Powers — (ff) Powers Re- stricted to State Limits.— See post, "No State to Exercise Its Legislative or Ju- dicial Powers within the Limits of Another," VI, D, 9, a, (2). 305-84a, By prohibiting exportation of coins. — Ling »Su Fan v. United States, 218 U. S. 302, 54 L. Ed. 1049, 31 S. Ct. 21. A law which prohibits the exportation of Philippine silver coin from the Philip- pine Islands is not a law which deprives the owner of his property in such coins without due process of law, in violation of that prohibition of the Organic Act of July 1, 1902, which provid<=s that "no law shall be enacted in said islands which shall deprive any person of life, liberty, or property without due process of law." 32 Stat, at L. 692, chap. 1369. Ling Su Fan V. United States, 218 U. S. 302, 54 L. Ed. 1049, 31 S. Ct. 21. The owner of Philippine silver coin is not deprived of his proppi-ty therein with- out due process of law, contrary to Act July 1, 1902, c. 1369, 32 Stat. 692, by the prohibition against the exportation of such coin from the Philippine Islands, under penalty of forfeiture and fine or imprison- ment, which is made by the Philippine law No. 1411. enacted by the Philippine Com- mission in the exercise cT the power un- der Act Cong. March 2, 1903, c. 980, § 6, 32 Stat. 953 (U. S. Comp St. Supp. 1909, p. 895), to adopt such measures as are deemed proper, not inconsistent with the organic act, to maintain the parity be- tween gold and silver pesos, but such statute is within the limits of the police power. Ling Su Fan v. United States, 218 U. S. 302, 54 L. Ed. 1049. 31 S. Ct. 21. Pas.'^ing by any consideration of the wisdom of such a law prohibiting the ex- portation of the Philippine Islands silver pesos as not relevant to the question of power, a substantial reason for such a law is indicated by the fact that the bullion value of such coin in Hong Kong was some 9 per cent greater than its face value. The law was therefore adapted to keep the silver pesos in circulation as a medium of exchange in the islands and at a parity with the gold peso of Philippine mintage. The law here in question is plainly within the limits of the police power, and not an arbitrary or unreason- able interference with private rights. Ling Su Fan v. United States, 218 U. S. 302, 54 L. Ed. 1049, 31 S. Ct. 21. Conceding the title of the owner of such coins, yet there is attached to such ownership those limitations which pub- lic policy may require by reason of their quality as a legal tender and as a medium of exchange. These limitations are due to the fact that public law gives to such coinages a value which does not attach as a mere consequence of intrinsic value. Their quality as a legal tender is an at- tribute of law aside from their bullion value. They bear, therefore, the impress of sovereign power which fixes value and authorizes their use in exchange. As an incident, government may punish deface- ment and mutilation, and constitute any such act, when fraudulently done, a mis- demeanor. Rev. Stat., §§ 5189, 5459, U. S. Comp. Stat. 1901, pp. 3484, 3684. Ling Su Fan v. United States, 218 U. S. 302, 54 L. Ed. 1049, 31 S. Ct. 21. 305-85a. Power to coin money, emit bill of credit, and prescribe a legal tender, and exclusive power.— Ling Su Fan v. United States. 218 U. S. 302, 54 L. Ed. 1049, 31 S. Ct. 21. 318-42. State legislative departments — Nature and scope of powers. — While the constitution of the United States and the laws enacted in pursuance thereof, together with any treaties made under the au- thority of the United States, constitute the supreme law of the land, a state of the Union may exercise all such governmental authority as is consistent with its own constitution, and not in conflict with the federal constitution. House v. Mayes, 219 U. S. 270, 55 L Ed. 213, 31 S. Ct. 234. 310 Vol. IV. CONSTITUTIONAL LAW. 320-334 {gg) Pozver to Barter Sovereign Rights or Bind Succeeding Legislatures. — ■ The surrender by contract, of a power of government, though in certain well- defined cases it may be made by legislative authority, is a very grave act, and the surrender itself, as well as the authority to make it, must be closely scrutinized. No other body than the supreme legislative body of the state has the authority to make such a surrender, unless the authority is clearly delegated to it by the supreme legislature. The general powers of a municipality or of any other polit- ical subdivision of the state are not sufficient. Specific authority for that pur- pose is required.^^^ 4. Equauty of thf States. — See post, "Equality of the States upon Admis- sion into the Union," VI, D, 6, b, et seq. 5. The Federal Guaranty of Republican Government to the States and Protection against Domestic Violence — a. Sense in Which Term "State" Used in This Connection. — See ante, "State or Government Defined," VI, A. b. Republican Form of Government Defined. — Form of Government Em- bodying Initiative and Referendum Features. — See post, "Political Depart- ment Charged with Duty of Enforcing Guaranty," VI, D, 5, d, (2). d. Right and Duty of Federal Government to Intervene for Purpose of Sup- pressing Violence and Maintaining Republican Form of Government — (2) Po- litical Department Charged zvith Duty of Enforcing Guaranty. — Where State Government Embodies Initiative and Referendum Features a Political, and Not a Judicial, Question. — \\liether or not a state has ceased to be repub- lican in form within the meaning of the guaranty in U. S. Const., art. 4, § 4, be- cause of its adoption of the initiative and referendum, is not a judicial question, but a political one, which is solely for congress to determine. ^^ Same — State Questions. — See note 9b. 6. New States and Admission into the Union — ^b. Equality of States upon Admission into the Union — (1) Generally. — A state, upon its admission in the Union, is thereafter upon an equal footing with every other state and has full and complete jurisdiction over all persons and things within its limits, except as it may be restrained by the provisions of the federal constitution or by its own constitution. -s* (2) Pozver of Congress to Impose Conditions Incompatible zvith the Equality of the State as a Member of the Union. — The power of congress under U. S. Const., art. 4, § 3, to admit new states into the Union, extends only to their ad- mission on an equal footing with their sister states. That provision is that, "new states may be admitted by the congress into this Union." The only expressed restriction upon this power is that no new state shall be formed within the juris- diction of any other state, nor by the junction of two or more states, or parts of states, without the consent of such states, as well as of the congress. This 320-56a. Power to barter sovereign authorizing- the voters of a municipality rights or bind succeeding legislatures. — ■ to resort to the initiative to amend its Home Tel, etc., Co. z^. Los Angeles, 211 U. charter, and as to the regularity of the S. 265, 273, 53 L. Ed. 176, 29 S. Ct. 50. See, proceedings leading up to the adoption of also, post, IMPAIRMENT OF OBLI- an amendment, and of the proceedings GATION OF CONTRACTS; POLICE culminating in the adoption of a particular POWER. ordinance, are not federal, and hence will 331-9a. Form of government embodying not support a writ of error from the fed- initiative and referendum features — A po- eral supreme court to a state court. Kier- litical, and not a judicial question. — Kier- nan v. Portland, 223 U. S. 151, 56 L. Ed. nan v. Portland, 223 U. S. 151, 56 L. Ed. 386, 32 S. Ct. 231. 386, 32 S. Ct. 231 ; Pacific States Tel., etc., 334-28a. Equality of states upon ad- Co. 7K Oregon, 223 U. S. 118, 56 L. Ed. mission.— Dick v. United States, 208 U. 377. 32 S. Ct. 224. S. 340, 353, 52 L. Ed. 520, 28 S. Ct. 399; 331-9b. Same— State questions.— Ques- Coyle v. Smith, 221 U. S. 559, 55 L. Ed. tions as to the validity under the state 853, 31 S. Ct. 688; Ex parte Webb, 225 U. constitution of Or. Laws 1907, chap. 226, S. 663, 56 L. Ed. 1248, 32 S. Ct. 769. 311 335-336 CONSTITUTIONAL LAW. Vol. IV. power is not a power to admit political organizations w^hich are less or greater, or different in dignity or power, from those political entities which constitute the Union. It is a "power to admit states into this Union," and "this Union" was and is a union of states, equal in power, dignity, and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the constitution itself. When a new state is admitted into the Union, it is so ad- mitted with all of the powers of sovereignty and jurisdiction which pertains to the original states, and such powers may not be constitutionally diminished, im- paired or shorn away by any conditions, compacts or stipulations embraced in the act under which the new state came into the Union, which would not be vahd and eft'ectual if the subject of congressional legislation after admission.-^-^ As Affected by Provision as to Republican Form of Government. — The constitutional duty of guaranteeing each state in the Union a republican form of government gives congress no power to impose restrictions in admitting a new state into the Union which deprive it of equality with the other states.^-'' Right of New State to Frame Its Own Constitution. — As to requirements in such enabling acts which relate only to the contents of the constitution for the proposed new state, little need to be said. The constitutional provision concern- ing the admission of new states is not a mandate, but a power to be exercised with discretion. From this alone it would follow that congress may require, under penalty of denying admission, that the organic law of a new state at the time of admission shall be such as to meet its approval. A constitution thus su- pervised by congress would, after all, be a constitution of a state, and as such subject to alteration and amendment by the state after admission. Its force would be that of a state constitution, and not that of an act of congress.-"^^^ Limitation of Doctrine with Respect to Those Matters as to Which Authority of Congress Constitutionally Extends. — It may well happen that congress should embrace in an enactment introducing a new state into the Union legislation intended as a regulation of commerce among the states, or with In- dian tribes situated within the limits of such new state, or regulations touching the sole care and disposition of the public lands or reservations therein, which might be upheld as legislation within the sphere of the plain power of congress. But in every such case such legislation would derive its force not from any agree- ment or compact with the proposed new state, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of congress extended to the subject, and therefore would not operate to restrict the state's legislative power in respect of any matter which was not plainly within the reg- ulating power of congress. ^"^^ 335-32a. Power of congress to impose 336-33a. Right of new state to frame its conditions incompatible with equality. — own constitution. — Coyle v. Smith, 221 U. Coyle f. Smith. 221 U. S. .559, 55 L. Ed. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. 853, 31 S. Ct. 688. Requirement as to seat of government. 335-32b. As affected by provision as to — A condition in the Enabling Act of republican form of government. — Covle z: June 16, 1906 (3-i Stat, at L. chap. 3335, p. Smith, 221 U. S. 559, 55 L. Ed. 853, "si S. 267). for the admission of Oklahoma into Ct. 688. the Union on an equal footing with the The duty of "guaranteeing to each state original states, that the capital of the state in this Union a republican form of gov- shall temporarily be at the city of Guth- ernment," may imply the duty of such new rie, and shall not be changed therefrom state to provide itself with such state gov- previous to 1913, although accepted by an ernment, and impose upon congress the irrevocable ordinance, ceased to be a valid duty of seeing that such form is not limitation upon the power of the state changed to one anti-republican, ]Minor z\ after its admission, and can not override Happersett, 21 Wall. 162,. 174, 22 L. Ed. any subsequent repugnant state legisla- 627, but it obviously does not confer power tion. Coyle z'. Smith, 221 U. S. 559. 55 to admit a new state which shall be any L. Ed. 853, 31 S. Ct. 688. less a state than those which compose the 336-34a. Limitation of doctrine with re- Union. Coyle V. Smith, 221 U. S. 559, 55 spect to those matters as to which au- L. Ed. 853, 31 S. Ct. 688. thority of congress constitutionally ex- 312 Vol. IV. COXSTITUTIOXAL LAW. 339-340 (3) Effect of Admission upon Lazvs and Ordinances Respecting the Terri- tories.— The Ordinance of 1787. —See note 42. 7. Thk Uxiox Indissoluble; the States Indestructible— a. The Union Indissoluble — (Ij Generally. — See note 45. tends. — Coyle z: Smith, 221 U. S. 559, 55 L. Ed. 8^3, 31 S. Ct. 688; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 9, 31 L. Ed. 629, 8 S. Ct. 811; Pollard v. Hagan, 3 How. 212, 223, 11 L. Ed. 565; Ex parte Webb, 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769. In announcing this limitation of the doc- trine, however, the court says: "It is not our purpose to qualify the doctrine estab- lished by repeated decisions of this court that the admission of a new state into the Union on an equal footing with the origi- nal states imports an equality of power over internal afifairs. The cases cited by counsel for the petitioner under this head are cases that dealt with matters wholly internal."' Ex parte Webb, 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769; United States V. McBratney, 104 U. S. 621, 26 L. Ed. 869; Draper v. United States. 164 U. S. 240, 41 L. Ed. 419. 17 S. Ct. 107: In re Hefif, 197 U. S. 488, 505, 49 L. Ed. 848, 25 S. Ct. 506, and see Ward v. Race Horse, 163 U. S. 504, 41 L. Ed. 244, 16 S. Ct. 1076; United States V. Celestine, 215 U. S. 278, 288, 54 L. Ed. 195, 30 S. Ct. 93; United States r. Sutton, 215 U. S. 291. 294, 54 L. Ed. 200, 30 S. Ct. 116; Hallowell z: United States, 221 U. S. 317. 323. 5^ L. Ed. 750, 31 S. Ct. 587; Dick V. United States, 208 U. S. 340, 52 L. 520, 28 Sup. Ct. Rep. 399. Same — Commerce with Indian tribes within the states. — The power of congress to regulate commerce between the states, and with Indian tribes situate within the limits of a state, justifies congress when creating a new state out of territory in- habited by Indian tribes, and into which territory the introduction of intoxicating liquors is by existing laws and treaties prohibited, in so legislating as to preserve those laws and treaties in force to the ex- tent of excluding interstate traffic in in- toxicating liquors that would be incon- sistent with the prohibition. Dick v. United States, 208 U. S. 340. 353, 52 L. Ed. 520. 28 S. Ct. 399. This being so, and since there is no repeal in the Oklahoma Enabling Act, express or implied, of the Act of 1895 so far as pertains to the carry- ing of liquor from without the new state into that part of it which was the Indian territory (saving as to liquor brought in by the state for the use of state agencies established imder the provisions of the Enabling Act), it follows, upon the ad- mitted facts, that the United States dis- trict court had jurisdiction to punish the petitioner for the ofTense that he had committed. Ex parte Webb. 225 U. S. 663, 56 L. Ed. 1248, 32 S. Cf. 769. The reservation in the Oklahoma En- abling Act of June 16, 1906, § 1, of the au- thority of congress to legislate in the fu- ture respecting the Indians residing within the new state, is within the constitutional power of congress to regulate commerce with the Indian tribes. Ex parte Webb 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769! The stipulation in the agreement of May 1, 1893, between the United States and the Nez Perce Indians, that the federal laws prohibiting the introduction of m- toxicating liquors into the Indian country shall, for a period of twenty-five years, apply to the lands thereby ceded to the United States and to those retained by the Indians and to those allotted to them in severalty, was a valid regulation, based upon the treaty-making power of the United States and upon the power of congress to regulate commerce with the Indians, and was not an invasion of the sovereignty of the state of Idaho, which had, by the Act of 1890 (26 Stat, at L. 215, chap. 656), been admitted into the Union upon an equal footing with the other states. Dick v. United States, 208 U. S. 340, 52 L. Ed. 520, 28 S. Ct. 399. See. also, post. INTERSTATE AND FOREIGN CO^niERCE. 339-42, Ordinance of 1787— As a re- striction upon state's power of eminent domain.— The power of eminent domain possessed by the state of Ohio was not restricted in any way after its admission into the Union by the provisions of the 2d article of the ordinance of 1787 for tHe government of the Northwest Territory, relating to that subject. Cincinnati v. Louisville, etc.. R. Co.. 223 U. S. 390, 56 L. Ed'. 481, 32 S. Ct. 267. See, also, ante, "Effect of Constitution upon Ordinances of the Old Confederation," VI, D. 2, c, (3), (d). And see post. OIPAIRMENT OF OBLIGATION OF CONTRACTS. 340-45. The union indissoluble. — In Lane County z\ Oregon, 7 Wall. 71, 76, 19 L. Ed. 101. it is said: "'The people of the United States constitute one nation, under one government; and this govern- ment, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each state com- pose a state, having its own government, and endowed with all the functions essen- tial to separate and independent existence. The states disunited might continue to exist. Without the states in union, there could be no political body as the United States.' To this we may add that the con- stitutional equality of the states is essen- tial to the harmonious operation of the 313 343-344 CONSTITUTIONAL LAW. Vol. IV. b. The States Indestructible. — See note 56. 9. Re];.ations of the States to One Another — a. In What .Respects States Foreign to One Another — {2) No State to Exercise Its Legislative or Judicial Pozi'ers zvithin the Limits of Another. — See note 59. scheme upon which the republic was or- ganized. When that equality disappears we may remain a free people, but the union will not be the union of the con- stitution." Coyle V. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. G88. "The constitution, in all its provisions, looks to an indestructible union, com- posed of indestructible states." Texas v. White, 7 Wall. 700, 725, 19 L. Ed. 227, quoted in Keller v. United States, 213 U. S. 138, 53 E. Ed. 737, 29 S. Ct. 470, and in Coyle V. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. 343-56. The states indestructible. — See ante, GENERALLY, VL D. 7, a, (l). 344-59. State powers not to be exer- cised within the limits of other states. — Atchison, etc., R. Co. v. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. See, also, Pennoyer v. Neff, 95 U. S. 714, 722, 24 L. Ed. 565. Laws respecting taxation — Generally. — It is firmly established that, consistently with the due process clause of the con- stitution of the United States, a state can not tax property Jocated or existing per- manently beyond its limits. Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Louisville, etc., Ferry Co. v, Kentucky, 188 U. S. 385, 398, 47 L. Ed. 513, 23 S. Ct. 463; Union Refrigerator, etc., Co. v. Kentucky, 199 U. S. 194, 209. 50 L. Ed. 150, 26 S. Ct. 36. Same — German warehouse receipts — Kentucky Statute. — A state can not tax German warehouse receipts, valuing them at the value of the whiskey they represent, where it can not tax the whiskey itself, either because it was exported from the United States or because of its situs. Judgment (1907), Commonwealth v. Sel- liger, 98 S. W. 1040, 39 Ky. Law Rep. 451, reversed. Selliger v. Commonwealth, 213 U. S. 200, 53 L. Ed. 761, 29 S. Ct. 449. As to movables having no fixed situs elsewhere, and whose owner resides in state. — In the case of Union Refriger- ator, etc., Co. V. Kentucky, 199 U. S. 194, 195, 50 L. Ed. 150, 26 S. Ct. 36, the ques- tion of decision as stated in the forepart of the opinion, was, "whether a corpora- tion organized under the law of Kentucky is subject to taxation upon its property permanently located in other states, and employed "there in the prosecution of its business." The property in question was railroad cars, a kind of movables obviously capable of acquiring a permanent location other than that of the owner. The judg- ment of the court was that the taxation of such property so permanently located elsewhere by the law of the domicile of the owner would be a denial of due proc- ess of law, and beyond the power of the state. The principle was not a new one. and was declared to rest upon repeated judgments of the federal supreme court, the cases of Railroad Co. v. Jackson, 7 Wall. 262, 19 L. Ed. 88; Delaware, etc., R. Co. V. Pennsylvania, 198 U. S. 341, 49 L. Ed. 1077, 25 S. Ct. 669; Louisville, etc., Ferry Co. v. Kentucky, 188 U. S. 385, 47 L. Ed. 513, 23 S. Ct. 463, being cited as precedents. That judgment did not deny to the state of the domicile of the owner power to tax tangibles which had not ac- quired an actual situs elsewhere. South- ern Pac. Co. V. Commonwealth, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. Same — Domicile of vessels. — Making the domicile of the corporate owner of ocean- going steamships the situs of taxation, where such vessels have acquired no ac- tual situs elsewhere, is not inconsistent with the due process of law guaranteed by the fourteenth amendment to the federal constitution. Southern Pac. Co. v. Com- monwealth, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13, affirming judgment (1909), Com- monwealth V. Southern Pac. Co., 120 S. W. 311, 134 Ky. 417, 20 Ann. Cas. 965. Same — Property of foreign corporations situated without the state. — See, also, post, INTERSTATE AND FOREIGN COM- MERGE. If a statute, by its necessary operation, really and substantially burdens the in- terstate business of a foreign corporation seeking to do business in a state, or im- poses a tax on its property outside of such state, then it is unconstitutional and void, although the state legislature may not have intended to enact an invalid statute. Ludwig V. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. Pullman Co. v. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232; Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355. 30 S. Ct. 190. Same — Foreign property of telegraph company — Laws Ark. 1907, p. 744. — An il- legal burden on the interstate business of a foreign telegraph company, as well as a tax upon its property beyond the juris- diction of the state, is imposed by the Laws of Ark. 1907, p. 744, under which such company, as a condition of continu- ing to do local business in the state, and of escaping the heavj'- penalties therein prescribed, must pay a given amount, based on all its capital stock, merely for filing its articles of incorporation with the secretary of state. Chicago, etc., R. Co. v. 314 Vol. IV. CONSTITUTIONAL LAW. 344 Limited Exception as to Jurisdiction of Courts of Equity. The territo- rial limitation of the jurisdiction of courts of a state over property in another state has a limited exception in the jurisdiction of a court of equity, but it is an exception well defined. A court of equity, having authority to act upon the per- son, may indirectly act upon real estate in another state, through the instrumen- tality of this authority over the person. Whatever it may do through the party, it may do to give efit'ect to its decree respecting property, whether it goes to the entire disposition of it or only to affect it with liens or burdens.^'j^ VII. Equal Protection of the Laws; Class Legislation. A|. Equal Protection as Guaranteed by the Due Process Clause of the Fifth Amendment. — Whether the principle embodied in the explicit clause of the fourteenth amendment prohibiting the states from denying to any person Ludwig- (C. C. 1907), 156 Fed. 152 affirmed. Ludwig V. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280; Ac- cord Pullman Co. v. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232; Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. Same — Property of nonresident express company — Oklahoma Laws 1910, ch. 44. — As applied to express companies whose receipts are derived largely from com- merce among the states and which also receives large sums as income from in- vestments in bonds and land all outside the state, a statute which imposes upon public service corporations operating within the state a "gross revenue tax," "which shall be in addition to the taxes levied and collected upon an ad valorem basis upon the property and assets of such corporation," is unconstitutional, not only as an attempt to tax interstate commerce, but as an attempt to levy a tax upon property situated without and beyond the jurisdiction of the state. Meyer v. Wells, etc., Co., 223 U. S. 298, 56 L. Ed. 445, 32 S. Ct. 218. A nonresident express company whose receipts are largely derived from inter- state commerce and from investments in bonds and land outside the state can not validly be subjected to the "gross revenue tax" exacted by Okla. Laws 1910, chap. 44, from public service corporation, "which shall be in addition to the taxes levied and collected upon ad valorem basis upon the property and assets of such corporation," equal to such proposition of a specified percentage of its gross receipts from every source whatsoever as the por- tion of its business done within the state bears to the whole of its business. Meyer V. Wells, etc., Co., 223 U. S. 298, 56 L. Ed. 445, 32 S. Ct. 218, following Fargo v. Hart, 193 U. S. 490, 48 L. Ed. 761, 24 S. Ct. 498; Galveston, etc., R. Co. v. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638. The "gross revenue tax" exacted from a nonresident express company by Okla. Laws 1910, chap. 44, "which shall be in addition to the taxes levied and collected upon an ad valorem basis upon the prop- erty and assets of such corporation" equal to such proportion of a specified percent- age of its gross receipts from every source whatsoever as the portion of its business done within the state bears to the whole of its business, can not be construed, for the purpose of saving its constitutionality, as referring only to the receipts from commerce wholly within the state. Meyer V. Wells, etc., Co., 223 U. S. 298, 56 L. Ed. 445, 32 S. Ct. 218. Same — Capital stock of foreign railway company. — The tax imposed under Colo. Laws 1907, chap. 211, upon the capital stock of a foreign railway company, the greater part of whose property and busi- ness is outside the state, and whose busi- ness done within the state is principally interstate commerce, is invalid under the commerce and due process of law clauses of the federal constitution, even if the temporary forfeiture of the right to do business, declared by the statute in case of failure to pay the tax, can be confined by construction to business wholly within the state. Atchinson, etc., R. Co. v. O'Con- nor, 223 U. S. 280, 56 L- Ed. 436, 32 S. Ct. 216. The greater part of its property and business is outside of the state of Colo- .rado, and of the business done within that state but a small proportion is local, the greater part being commerce among the states. Therefore, it is obvious that the tax is of the kind decided by the federal supreme court to be unconstitutional, since the decision below in the present case, even if the temporary forfeiture of the right to do business declared by the statute be confined by construction, as it seems to have been below, to business wholly within the state. Atchinson, etc., R. Co. V. O'Connor, 223 U. S. 280, 56 L. Ed. 436. 32 S. Ct. 216; Western Union Tel. Co. V. Coleman, 216 U. S. 1. 54 L. Ed. 355, 30 vS. Ct. 190; Pullman Co. v. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232; Ludwip- 7'. Western Union Tel. Co.. 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. 344-59a. Limited exception as to juris- diction of courts of equity. — Fall v. Eastin, 215 U. S. 1, 54 L. Ed. 65, 30 S. Ct. 3. 315 351-352 CONSTITUTIONAL LAW. Vol. IV. within their respective jurisdictions the equal protection of the laws is an essen- tial constituent of the due process of law guaranteed by the fifth amendment,, thus making that principle a limitation upon the powers of congress as effectual in its operation as if it had been expressed in so many words, is a question which has never been decided.'^-'' It is well settled, however, that even if it should be conceded or assumed that the due process clause of the fifth amendment operates to prohibit congress from denying the equal protection of the laws, the prohibi- tion can not be stricter or more extensive than the fourteenth amendment is upon the states ; that it does not take from congress the power to classify, nor does it condemn executions of that power merely because they occasion some inequal- ities. On the contrary, it admits of the exercise of a wide discretion in classify- ing according to general rather than minute distinctions, and condemns only those discriminations which rest upon no reasonable basis, and which are purely arbi- trary.*^-'' B. Equal Protection as Guaranteed by the Fourteenth Amendment — 1. Persons Protecte:.d — a. Citi::ens and Aliens. — See ante, Ai^iiiNs, p. 18; post, Due Process oe Law. b. Corporations. — See note 65. 351-62a. Equal protection as guaranteed by the due process clause of the fifth amendment. — United States v. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98; District of Columbia v. Brooke, 214 U. S. 138, 149, 53 L. Ed. 941, 29 S. Ct. 560; Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342; Second Em- ployers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. 351-62b. Imposes no greater restriction than the fourteenth amendment does upon the states. — Second Employers' Liability Cases, 223 U. S. 1, 56 L Ed. 327, 32 S. Ct. 169; District of Columbia v. Brooke, 214 U. S. 138, 53 L Ed. 941, 29 S. Ct. 660; Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389. 31 S. Ct. 342; United States V. Heinze, 218 U. S. 532, 54 L Ed. 1139, 31 S. Ct. 98; Lindsley v. Natural Car- bonic Gas Co.. 220 U. S. 61, 78, 55 L. Ed. 369, 31 S. Ct. 337. Federal excise tax upon corporations. — There is such a substantial difference between the carrying on of business by corporations and the same business when conducted by a private firm or individual as would justify, even were the principles of the fourteenth amendment to the fed- eral constitution applicable, the excise imposed by Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 113 (U. S. Comp. St. Supp. 1909, p. 844), Upon the carrying on or the doing of business in a corporate or quasi cor- porate capacity. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L Ed. 389, 31 S. Ct. 342. Federal practice in criminal cases — Dis- crimination against accused as to right of appeal. — Congress could, by Act March 2, 1907. c. 2564,"^ 34 Stat. 1246 (U. S. Comp. St. Supp. 1909, p. 220), authorize the gov- ernment to bring up a criminal case from a federal circuit court to the supreme 'court when a demurrer to an indictment has been svistained, although the same privilege is denied the accused when the indictment is sustained, even assuming that the United States is bound to afford the equal protection of the laws to persons within its jurisdiction. United States v. Heinze, 218 U. S. 532, 54 L Ed. 1139, 31 S. Ct. 98. 352-65. Corporations. — That a corpora- tion is a person, within the meaning of the fourteenth amendment, is no longer open to discussion. This point was de- cided in Pembina, etc., Milling Co. v. Pennsylvania, 125 U. S. 181, 31 L Ed. 650, 8 S. Ct. 737, wherein this court declared: "The inhibition of the amendment that no state shall deprive any person within its jurisdiction of the equal protection of the laws was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. Under the designation of oerson there is no doubt that a private corporation is included." Southern R. Co.. V. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. Corporations subject to same restric- tions which could not be enforced as to individuals. — But since a corporation has no right to exist except by permission of the state, it must content itself with such powers, privileges and immunities as the state may see fit to bestow upon it. Not being entitled to all the privileges and im- munities of an individual, corporations- may be restricted in ways in which an in- dividual could not be. Berea College v. Commonwealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. Thus the Kentucky Statute Act of 1904, ch. 85, forbidding the teaching of white and negro children in the same schools, was upheld as against a corporation, al- though it was admitted that some of its provisions might be invalid if applied to- individuals. Berea College v. Common- 316 Vol. IV CONSTITUTIONAL LAW. 353-355 c. Protects Only Those Persons and Corporations within the lurisdiction of the State. — See notes 68, 70. 2. Nature and Object of the Guaranty — c. Refers to Infringement by the States; Not by Individuals. — See notes 74, 75. wealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. See further, as to special legislation based upon the fact that the thing af- fected is a corporation, post, "Classifica- tion jMust Be Reasonable, Arbitrary and Hostile Classification Forbidden," VII, B, 2, h, (8). 353-68. Foreign corporations must have come within the jurisdiction. — Where a foreign corporation, with the permission of the state, has come into its borders for the purpose of carrying on business, and, under the sanction of state law, has ac- quired a large amount of property within the state, it is a person within the state within the meaning of the equal protec- tion clause of the fourteenth amendment, and is entitled to the protection of that clause; and a state law which undertakes to prevent such corporations from resort- ing to the federal courts for the protection of their rights, and which forbids them to undertake to remove causes from the state to the federal courts, under penalty of a forfeiture of their right to do business within the state, but which imposes no such restrictions as to domestic corpora- tions, is unconstitutional as a denial of the equal protection of the laws guaranteed by the fourteenth amendment. Herndon V. Chicago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633; Roach v. Atchin- son, etc., R. Co., 218 U. S. 159. 54 L. Ed. 978, 30 S. Ct. 639. See, also, Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Pullman Co. V. Coleman. 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232: Ludwig v. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423. 30 S. Ct. 280: Southern R. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. A foreign railway corporation which has come into the state in compliance with its laws, and has therein acquired property •of a permanent nature, upon which it has paid all state taxes, is a person within the jurisdiction of the state, and is protected by the equal protection clause of the fourteenth amendment of the federal con- stitution against the imposition, under Code Ala. 1907, §§ 2391-2400, of an addi- tional franchise tax for the privilege of doing business within the state, where no such tax is imposed upon domestic cor- porations carrying on a similar business. Southern R. Co. v. Greene. 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287; Louisville, etc.. R. Co. V. Gaston. 216 U. S. 418, 54 L. Ed. 542. 30 S. Ct. 291. 354-70. Expulsion of foreign corporation by special act or proceedings. — .\ foreign ■corporation ousted and fined fifty thou- sand dollars in civil quo warranto pro- ceedings in the highest court of the state, for a misuser of its license to do business within the state, can not claim to have been denied the equal protection of the laws because corporation prosecuted in the inferior state courts for identically the same acts, in violation of the state Anti- Trust Act, are entitled to a trial by jury, and, if convicted, can be ousted of their franchises and subjected to a fine not to exceed one hundred dollars per day dur- ing the time the combination continued in efifect. Standard Oil Co. v. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. 355-74. Refers to state, and not individ- ual infringement. — The restriction and prohibitions embodied in the fourteenth amendment operate as a restriction upon state action solely, and not upon individ- uals. Instead of being general, as in the case of the prohibition of slavery and in- voluntary servitude contained in the thirteenth amendment, the inhibition is "that no state" shall deprive any person of life, liberty or property except by due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, etc. United States v. Powell, 212 U. S. 564, 53 L. Ed. 653, following Hodges V. United States, 203 U. S. 1, 51 L. Ed. 65, 27 S. Ct. 6. 355-75. Refers to all the agencies and instrumentalities of the state. — The pro- visions of the fourteenth amendment are not confined to the action of the state through its legislature, or through the ex- ecutive or judicial authority. Those pro- visions relate to and cover all the instrumentalities by which the state acts, and so it has been held that whoever, bj' virtue of public position under a state gov- ernment, deprives another of any right protected by that amendment against dep- rivation by the state, violates the con- stitutional inhibition, and as he acts in the name of the state and for the state, and is clothed with the state's powers, his act is that of the state. Chicago, etc., R. Co. z'. Chicago, 166 U. S. 226, 41 L. Ed. 979, 17 S. Ct. 581; Ravmond v. Chicago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7. The action of a state through any of its officers charged with the administration of the law may be of such a character as to constitute a denial of the equal pro- tection of the laws. Bailey v. .Mabama, 219 U. S. 219. 55 L. Ed. 191, 31 S. Ct. 145. The judicial act of the highest court of the state, in authoritatively construing and enforcing its laws, is the act of the state. Twining v. New Jersey, 211 U. S. 78, 90, 317 356-358 CONSTITUTIONAL LAW. Vol. IV. i. As a Limitation upon the Police Pozver. — See note 79. g. Has No Concern with the Impolicy or Injustice of Legislation. — See note 82. 53 L. Ed. 97, 29 S. Ct. 14; Ex parte Vir- ginia, 100 U. S. 339, 25 L. Ed. 676; Scott V. McN'eal, 154 U. S. 34, 38 L. Ed. 896; Chicago, etc., R. Co. v. Chicago, 166 U. S. 226, 41 E. Ed. 979, 17 S. Ct. 581. An ordinance is to be regarded as in effect a statute of the state, adopted un- der a power granted it by the state legis- lature, and hence, it is an act of the state within the fourteenth amendment. North American Cold Storage Co. v. Chicago, 211 U. S. 306, 53 L. Ed. 195, 29 S. Ct. 101; New Orleans Waterworks Co. v. Louisi- ana Sugar Refin. Co., 125 U. S. 18, 31, 31 L. Ed. 607, 8 S. Ct. 741. The Illinois state board of equalization, when making an assessment pursuant to the supposed command of a writ of man- damus, represents the state, there being no method of reviewing its decision ex- cept by judicial proceedings for relief from the assessment, and its action is therefore repugnant to Const. U. S. Amend. 14, if it denies anyone equal protection of the laws protected by that amendment against impairment by the state. Judg- ment, Chicago Union Traction Co. v. State Board of Equalization (C. C. 1902), 114 F. 557; Chicago Consol. Traction Co. V. Same, Id.; South Chicago City Ry. Co. V. Baird, Id.; Chicago Edison Co. V. Raymond, Id.; Chicago City Ry. Co. V. Same, Id.; People's Gas Light & Coke Co. V. Same, Id.; Chicago Telephone Co. V. Same, Id., affirmed. Raymond v. Chicago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7; Raym.ond v. Chicago Edison Co., 207 U. S. 42, 52 L. Ed. 89, 28 S. Ct. 14. 356-79. As a limitation upon the police power. — The fourteenth amendment does not operate to deprive the states of their lawful power, and of the right, in the exercise of such power, to resort to rea- sonable methods inherently belonging to the power exerted. On the contrary, the provisions of the due process clause re- strain only those arbitrary and unreason- able exertions of power which are not really within lawful state power, since they are so unreasonable and unjust as to impair or destroy fundamental rights. American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. And in determining whether a person has been denied the equal protection of the laws or deprived of his property with- out due process of law in violation of the fourteenth amendment, we are to give to that amendment and to the alleged ob- jectionable legislation a practical con- struction in the light of concrete facts and existing conditions, especially local con- ditions and the nature of the evil which it is sought to reach and correct. To quote the language of Mr. Justice Holmes in a recent case: "We must be cautious about pressing the broad words of the fourteenth amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or an- other of the great guarantees in the bill of rights. They more or less limit the liberty of the individual, or they diminish property to a certain extent. We have few scientifically certain criteria. of legis- lation, and as it is often difficult to mark the line where what is called the police power of the states is limited by the con- stitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the law mak- ing power." Noble State Bank v. Has- kell, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 18G, followed in Shallenberger v. First State Bank, 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189. The due process and equal protection clauses of the fourteenth amendment dO' not limit the powers of a state in dealing with crime committed within its borders or with the punishment thereof, although no state can deprive particular persons or classes of persons of equal and impartial justice under the law. Ughbanks v. Arm- strong, 208 U. S. 481, 52 L. Ed. 582, 28 S- Ct. 372. 358-82. Has no concern with the im- policy or injustice of legislation. — The legislature, being familiar with local con- ditions, is primarily the judge of the neces- sity of such enactments, and the mere fact that a court may differ with the leg- islature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in ques- tion, affords no ground for judicial inter- ference, unless the act in question is un- mistakably and palpably in excess of leg- islative power. Williams v. Arkansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493. See, also, ante, "Judicial Control of Legislative Discretion," VI, D, 3, d, (4), (b). (bb). It is for the state, keeping within the limits of its constitutional powers, to say what particular means it will prescribe for the protection of the public in such mat- ters, and although the means adopted may not be the best that could have been de- vised, the court can not for that reason declare them illegal or beyond the power of the state to establish, unless they are not, in any real or substantial sense, germane to the end sought to be attained by the statute. German Alliance Ins. Co. 7'. Hale, 219 U. S. 307, 55 L. Ed. 229, 37 S. Ct. 246. 318 Vol. IV. CONSTITUTIONAL LAW. 358-361 h. Equality Rule Does Not Require Statute to Operate Indiscriminately ; Admits of Classification — (1) Generally. — See note 83. (5) Nor in All Portions of the Same State. — See note 88. (6) Nor in All Portions of the Sa)ne City. — See note 94. 358-83. Equality rule admits of classifi- cation. — The equal protection clause of the fourteenth amendment does not take from the state the power to classify in the adoption of police lavv^s, but admits of the exercise of a wide, scope of discretion in that regard, and avoids what is done only when it is without any fair and rea- sonable basis, and therefore is purely ar- bitrary. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337; Williams v. Walsh, 223 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137; German Alli- ance Ins. Co. V. Hale. 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246; Williams v. Ar- kansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493; District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560; Heath, etc., Mfg. Co. v. Worst, 207 U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114. The fourteenth amendment is not to be construed as introducing a factitious equality without regard to practical dif- ferences that are best met by correspond- ing dififerences of treatment. Graham v. West Virginia, 224 U. S. 616. 56 L. Ed. 917, 32 S. Ct. 583; Standard Oil Co. v. Ten- nessee, 217 U. S. 413, 420, 54 L. Ed. 817, 30 S. Ct. 543. Does not forbid statutes and statutory changes to have a beginning. — The four- teenth amendment does not forbid stat- utes and statutory changes to have a be- ginning, and thus to discriminate be- tween rights of an earlier and later time. Sperry, etc., Co. v. Rhodes, 220 U. S. 502, 55 L. Ed. 561, 31 S. Ct. 490; Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137. For example a statute which makes it a misdemeanor to use the name, portrait or picture of any living person for ad- vertising purposes without the written consent of such person, first obtained, and which gives a right of action to the person whose name, portrait or picture is so used, is not obnoxious to the equal pro- tection clause of the fourteenth amend- ment, because, by its express terms, the statute is made to apply only to the use of photographs taken after, and not to those taken previous to its enactment. Sperry, etc., Co. v. Rhodes, 220 U. S. 502, 55 L. Ed. 561, 31 S. Ct. 490. Legislation which makes acts criminal which are done after they are forbidden, and which assigns no penalties to acts done in pursuance of obligations pre- viously legally incurred, is not arbitrary classification. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 1.37. The exception in favor of existing con- tracts, contained in Laws Kan. 1907, c. 250, making it criminal to sell or deliver black powder for use in any coal mines in the state except in original sealed packages containing twelve and one-half pounds of powder, does not make such statute repugnant to the fourteenth amendment as denying the equal protec- tion of the laws. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137. 359-88. Nor in all portions of the same state — Forfeitures for failure to list prop- erty and pay taxes. — The provisions for the forfeiture of land titles to the state for failure to list and pay taxes thereon for certain specified years, made by Ky. Act of March 15, 1906, art. 3, do not deny, the equal protection of the laws because, in the application of such statute, it can only meet conditions such as are em- braced within the law in a part of. the counties of the state. Kentucky Union Co. V. Commonwealth, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. Same — Tenement house act — Discrimi- nation as to localities. — The fact that the Tenement House Act (Laws 1901, p. 912, c. 334, § 100, as amended by Laws 1902, p. 937, c. 352, § 47), is applicable to tene- ment houses in cities of the first class only, does not render it a violation of the fourteenth amendment to the United States constitution, forbidding any state to deny to any person within its jurisdic- tion equal protection of the laws. Judg- ment, Tenement House Department of City of New York v. Moeschen (1904), 72 N. E. 231, 179 N, Y. 325, 70 L. R. A. 704, 103 Am. St. Rep. 910, affirmed. Moeschen v. Tenement House Department. 203 U. S. 583. 51 L. Ed. 328, 27 S. Ct. 781. 361-94. Nor in all portions of the same city regulating height of buildings. — Equal protection of the laws is not denied an owner of property in the residential sec- tion of Boston by the discrimination or classification made between the com- mercial and residential sections of that city by Pub. Acts Mass. 1904, p. 283, c. 333, and Acts 1905, p. 309, c. 383, limiting the height of buildings in the commercial district^to 125 feet, and in the residential districts to from 80 to 100 feet. Judgment, 79 N. E. 745, 193 Mass. 364. 118 Am. St. Rep. 523. Welch v. Swasey, 214 U. S. 91, 53 L. Ed. 923, 29 S. Ct. 567. In passing upon questions of this char- acter as to the validity and rea.sonable- ness of a discrimination or classification in relation to limitations as to height of buildings in a large city, the matter of lo- cality assumes an important aspect. The 319 361-363 CONSTITUTIONAL LAW. Vol. IV. (7) But Requires Uniformity as to All in Like Circumstances zuitliin the Sphere of Its Operation. — See note 95. (8) Classification Must Be Reasonable; Arbitrary and Hostile Classification Forbidden. — See notes 97, 98, 1. particular circumstances prevailing at the place or in the state where the law is to become operative, whether the statute is really adapted, regard being had to all the dififerent and material facts, to bring about the results desired from its passage; whether it is well calculated to promote the general and public welfare, are all matters which the state court is familiar with; but a like familiarity can not be as- cribed to the federal supreme court, even assuming that judicial notice may be taken of what is or ought to be generally known. For such reason that court, in cases of this kind, feels the greatest re- luctance in interfering with the well considered judgments of the courts of a "State whose people are to be affected by the operation of the law. The highest court of the state in which statutes of the kind under consideration are passed is more familiar with the particular causes which led to their passage, although they may be of a public nature, and with the general situation surrounding the subject matter of the legislation than that court can possibly be, "We do not, of course," says that court, "intend to say that, under such circumstances, the judgment of the state court upon the question will be re- garded as conclusive, but simply that it is entitled to the very greatest respect, and will only be interfered with, in cases of this kind, where the decision is, in our judgment, plainly wrong." Welch ?'. Swasey, 214 U. S. 91, 53 L. Ed. 923, 29 S. Ct. 5G7. 361-95. Requires uniformity as to all in like circumstances within the sphere of its operation. — Statutes that apply equally to all of the same class and under like con- ditions can not be to deny the equal pro- tection of the laws, since "the equal pro- tection of the laws is a pledge of the protection of equal laws" to all under like circumstances. German Alliance Ins. Co. V. Hale, 219 U. S. 307. 55 L- Ed. 229, 31 S. Ct. 246, and cases cited. It is settled that legislation which in carrying out a public purpose, is limited in its application, is not within the pro- hibition contained in the fourteenth amendment, if within the sphere of its operation it af¥ects alike all persons simi- larly situated. Williams t'. Arkansas, 217 U. S. 79, 54 Iv. Ed. 673, 30 S. Ct. 493; Mis- souri, etc.. R. Co. v. May, 194 U. S. 267, 48 L. Ed. 971, 24 S. Ct. 63S. 362-97. Laws must be reasonable — Ar- bitrary classification forbidden. — It is ele- mentary that the contention that a statute is opposed to the equal protection clause of the fourteenth amendment is to be tested by considering whether there is a reasonable basis for the classification made by the statute. Finley v. California, 222 U. S. 28, 56 L. Ed. 75, 32 S. Ct. 13. While reasonable classification is per- mitted, without doing violence to the equal protection of the laws, such classifi- cation must be based upon some real and substantial distinction, bearing a reason- able and just relation to the things in re- spect to which such classification is im- posed; and classification can not be arbi- trarily made without any substantial basis. Arbitrary selection, it has been said, can not be justified by calling it classification. Southern R. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. 363-98. A pledge of equal laws. — The equal protection of the laws means sub- jection to equal laws, applying alike to all in the same situation. Southern R. Co. V. Greene, 216 U. S. 400. 54 L. Ed. 536, 30 S. Ct. 287. Statutes that apply equally to all of the^ same class and under like conditions can not be held to deny the equal protection of the laws; for, as the federal supreme court has adjudged, "the equal protection of the laws is a pledge of the protection of equal laws" to all under like circum- stances. German Alliance Ins. Co. v. Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246; Yick Wo v. Hopkiits, 118 U. S. 356, 367, 30 L- Ed. 220, 6 S. Ct. 1064; Bar- bier V. Connolly, 113 U. S. 27, 28 L. Ed. 923, 5 S. Ct. 357; Soon Hing v. Crowley, 113 U. S. 703, 28 L. Ed. 1145, 5 S. Ct. 730. 363-1. Classification based upon fact of incorporation. — Since a corporation has no right to exist, except by permission of the state, it must content itself with such poweis, privileges, and immunities as the state may see fit to bestow upon it. Not being entitled to all the privileges and im- munities of an individual, the corporation may be restricted in ways in which an m- dividual could not be. Berea College v. Commonwealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. Although it be conceded that the pro- visions of a statute regulating corporations doing business within its borders can not, consistently with constitutional limitations be applied to individuals, such concession would not cause the act to amount to a denial of the equal protection of the laws. The difference between the extent of the power which the state may exert over the doing of business within the state by an individual and that which it can exercise as to corporations furnishes a distinction 320 Vol. IV. CONSTITUTIONAL LAW. 363 (9) Rigid Equality Not Required; Legislature Permitted a Wide Discre- tion. — See notes 2, 3, 5, 6, 7. authorizing a classification between the two. Hammond Packing Co. z'. Arkansas, 212 U. S. 322, 343, 53 L. Ed. 530, 29 S. Ct. 370. Same — Rules as to production of evi- dence, books, papers, etc. — The fact that the remedy given by an act for the pro- duction of books and papers and the ex- amination of witnesses is confined to corporations and joint stock associations, and does not extend to individuals, fur- nishes no ground for the proposition that a denial of the equal protection of the laws thereby resulted. The wider scope of the power which the state possesses over corporations and joint stock associa- tions in and of itself affords a ground for the classification adopted. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 349, .53 L. Ed. 530, 29 S. Ct. 370. Abolishing fellow-servant rule as to corporations. — Abolishing fellow- servant rule as to corporations operating rail- roads within the state, as is done by Act Ark. March 8, 1907, p. 162, does not deny s.uch a corporation the equal protection of the laws because the statute does not apply to individual employers. Alumi- num Co. V. Ramsey, 222 U. S. 251, 56 L. Ed. 185, 32 S. Ct. 76, affirming 89 Ark. 522. 117 S. W. 568. The distinction, among others, it makes is between railroads operating in the state and individuals, and such distinc- tion has been maintained by this court as not ofifending the constitution of the United States. Aluminum Co. v. Ramsey, 232 U. S. 251, 56 L. Ed. 185, 32 S. Ct. 76; Tullis c'. Lake Erie, etc., R. Co., 175 U. S. 348, 44 L. Ed. 192, 20 S. Ct. 136; Min- nesota Iron Co. V. Kline, 199 U. S. 593, 50 L. Ed. 322, 26 S. Ct. 159. See, also, The Employers' Liability Cases, 207 U. 5. 463, 504, 52 L. Ed. 297, 28 S. Ct. 141, and El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87. 54 L. Ed. 106, 30 S. Ct. 21. Excise applicable only to corporations. — There is such a substantial difference between the carrying on of business by corporations and the same business when conducted by a private firm or individ- ual as would justify, even were the prin- ciples of the fourteenth amendment to the federal constitution applicable, the excise imposed by Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), upon the carrying on or the doing of business in a corporate or quasi corporate capacity. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Forbidding corporation to conduct mixed school for whites and negroes. — The Kentucky Act of 1904, ch. 85 forbid- ding the teaching of white and negro 12 U S Enc— 21 321 children in the same school was upheld as against a corporation, although it was admitted that the same provisions might be invalid if applied to individuals. Berea College V. Commonwealth, 211 U. S. 45, 53 L. Ed. 81, 29 S. Ct. 33. 363-2. Rigid equality not required — Legislature permitted a wide discretion. — -The fourteenth amendment is unquali- fied in its declaration that a state shall not "deny to any person within its jurisdiction the equal protection of the laws." Passing on that amendment, it has been repeat- edly decided, so often that a citation of the cases is unnecessary, that it does not take from the states the power of clas- sification; and also that such classification need not be either logically appropriate or scientifically accurate, and if not pal- pably arbitrary, and is uniform with the class, it is within such discretion. Dis- trict of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560; Mutual Loan Co. V. Martell. 222 U. S. 225, 56 L. Ed. 175, 32 S. Ct. 74. A classification which is not arbitrary is not repugnant to the constitution of the United States. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137. Same — Distinction between residents and nonresidents. — "The problems which are met in the government of human beings are different from those involved in the examination of the objects of the physical world, and assigning them to their proper associates. A wide range of discretion, therefore, is necessary in legislation to mlake it practical, and we have often said that the courts can not be made a refuge from ill-advised, un- just, or oppressive laws. Billings v. Illi- nois, 188 U. S. 97, 47 L. Ed. 400, 23 S. Ct. 272: Heath, etc., Mfg. Co. v. Worst, 207 U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114. In the light of these principles the contentions of defendant in error must be judged. The act in controversy makes a distinc- tion in its provision between resident and nonresident lot owners, but this is a proper basis for classification. Regarded abstractly as human beings, regarded abstractly as lot owners, no legal diflfer- ence may be observed between residents and nonresidents; but, regarded in their relation to their respective jots under regulating laws, the limitations upon jurisdiction, and the power to reach one and not the other, important dififerences immediately appear." District of Colum- bia V. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. The contention that because a statute relating to the production of books and papers in evidence applies only to books and papers outside of the state, there- 365 CONSTITUTIONAL LA W. Vol. IV. fore it denies the equal protection of the laws is not open, since it has been con- clusively settled that, without denying the equal protection of the laws, relations may be based upon the fact that persons or property dealt with are not within the territorial jurisdiction of the regulat- ing authority. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 349, 53 L. Ed. 530, 29 S. Ct. 370. Central Loan, etc., Co. V. Campbell Comm. Co., 173 U. S. 84, 43 L. Ed. 623. 365-3. Law not involved because of mere inequality of result. — A classifica- tion having some reasonable basis does not offend against that clause merely because it is not made with mathemati- cal nicety, or because in practice it re- sults in some inequality. Lindsley v. Nat- ural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. "You can not carry a constitution out with mathematical nicety to logical ex- tremes. If you could, we never should have heard of the police power. And this is still more true of taxation, which in most communities is a long way off from' a logical and coherent theory." Paddell v. New York, 211 U. S. 446, 450, 53 L. Ed. 275, 29 S. Ct. 139. It is settled as the essential result of the elementary doctrine that the equal protection of the law clause does not restrain the normal exercise of govern- mental power, but only abuse in the ex- ertion of such authority, therefore that clause is not offended against simply be- cause, as the result of the exercise of the power to classify, some inequality may be occasioned. That is to say, as the power to classify is not taken away by the operation of the equal protection of the law clause, a wide scope of leg- islative discretion may be exerted in clas- sifying without conflicting with the con- stitutional prohibition. Louisville, etc., R. Co. V. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676. In Magoun v. Illinois Trust, etc.. Bank. 170 U. S. 283, 294, 42 L. Ed. 1037, 18 S. Ct. 594, there is no precise application of the rule of reasonableness of classifica- tion, and the rule of equality permits many practical inequalities. And neces- sarily so. In a classification for govern- mental purposes there can not be an exact exclusion or inclusion of persons and things. Louisville,, etc., R. Co. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676. 365-5. Greater latitude permitted in the exercise of the taxing power. — A state does not deny the equal protection of the laws merely by adjusting its revenue lav/s and taxing system in such a way as to favor certain industries or forms of in- dustry. Like the United States, although with more restriction and in less degree, the state may carry out a policy, even though it be a policy with which the courts may not agree, provided the dis- criminations made by it are founded on distinctions not unreasonable nor purely arbitrary. Quong Wing v. Kirkendall, 223 U. S. 59, 56 L. Ed. 350, 32 S. Ct. 192. See, also, McLean v. Arkansas, 211 U. S. 539, 547, 53 L. Ed. 315, 29 S. Ct. 206. Thus, if the state sees fit to encourage steam laundries and discourage hand laundries by adopting a system of taxa- tion that bears more lightly upon the one than upon the other, that is its own affair. Quong Wing v. Kirkendall, 223 U. S. 59, 56 L. Ed. 350, 32 S. Ct. 192. 365-6. Presumption in favor of valid- ity. — One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbi- trary. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. In Sweet v. Rechel, 159 U. S. 380, 392, 40 L. Ed. 188, 16 S. Ct. 43, it was said: "But, in determining whether the legisla- ture, in a particular enactment, has passed the limits of its constitutional au- thority, every reasonable presumption must be indulged in favbr of the validity of such enactment. It must be regarded as valid unless it can be clearly shown to be in conflict with the constitution." Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. Every presumption should be indulged in favor of the constitutionality of legis- lation including legislation prescribing rates. Home Tel., etc., Co. z'. Los An- geles, 211 U. S. 265, 281, 53 L. Ed. 176, 29 S. Ct. 50. Presumption of circumstances neces- sary to sustain validity. — It is a well set- tled rule of constitutional exposition that, if a statute may or may not be, accord- ing to circumstances, within the limits of legislative authority, the existence of the circumstances necessary to support it must be presumed. Home Tel., etc., Co. V. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. When the classification in such a law is called in question if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. Where the unconstitutionality of an act is attacked on the ground that the clas- sification made by it is opposed to the provision guaranteeing the equal protec- tion of the laws, the presumption is that such classification is valid if any such state of facts as would sustain it can reasonably be conceived, and in such case the court, in the absence of evidence tending to show the absence and impos- 322 Vol. IV. CONSTITUTIONAL LAW. 365 sibilitj^ if such a state of facts, may look not only to the allegations contained in the bill or petition but will also consider those matters within the range of com- mon knowledge and subject to judicial notice. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337; Brown v. Piper, 91 U. S. 37, 43, 23 L. Ed. 200; Brown v. Spilman, 155 U. S. 665, |70, 39 L. Ed. 304, 15 S. Ct. 245; McLean & Co. v. Denver, etc., R. Co., 203 U. S. 38, 51, 51 L. Ed. 78, 27 S. Ct. 1; Mc- Nichols V. Pease, 207 U. S. 100, 111, 52 L- Ed. 121, 28 S. Ct. 58. Must be palpably unreasonable — Weight given to local conditions — Opin- ion of legislature and local courts. — When the state legislature has declared that, in its opinion, policy requires a cer- tain measure, its action should not be disturbed by the courts under the four- teenth amendment, unless they can see clearly that there is no fair reason for the law that would not require with equal force its extention to others whom it leaves untouched. Williams v. Arkansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493; Missouri, etc., R. Co. v. May, 194 U. S. 267, 48 L. Ed. 971, 24 S. Ct. 638; Watson V. Maryland, 218 U. S. 173, 54 L. Ed. 987. 30 S. Ct. 644. The legislature, being familiar with lo- cal conditions, is primarily the judge of the necessity of such enactments. Tht mere fact that a court may dififer with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act under consideration is unmistakably and palpably in excess of legislative power. Williams v. Arkansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493. 365-7. In passing upon questions oi this character, the particular circum- stances prevailing at the place or in the state where the law is to become opera- tive, whether the statute is really adopted, regard being had to all the dif- ferent and material facts, to bring about the results desired from its passage; whether it is well calculated to promote the general and public welfare, are all matters which the state court is familiar with; but a like familiarity can not be ascribed to the supreme court of the United States, even assuming that judicial notice may be taken of what is or ought to be generally known. For these rea- sons, that court, in cases of this kind, will feel the greatest reluctance in inter- fering with the well considered judgments of the courts of the state whose people are to be affected by the law. The highest court of the state in which the statute was passed is more familiar with the causes which led to its passage, although they may be of a public nature, and with the general situation surrounding the sub- ject matter of the legislation, than the supreme court of the United States can possibly be. It is not intended to say, of course, that, under such circumstances, the judgment of the state court upon the question will be regarded as conclu- sive, but simply that it is entitled to the very greatest respect, and will only l)e interfered with, in cases of this kind, where the decision is, in the judgment of the United States supreme court, plainly wrong. Welsh v. Swasey, 214 U. S. 91, 53 L. Ed. 923, 29 S. Ct. 567. It is held that in determining whether the fourteenth amendment has been vio- lated, and an individual denied the equal protection of the laws or deprived of liberty or property without due process of law, the courts must be cautious about pressing the broad words of that amend- ment to a drily logical extreme. Manj^ laws which it would be vain to ask the court to overthrow could be shown easily enough, to transgress a scholastic inter- pretation of one or another of the great guarantees in the bill of rights. They more or less limit the liberty of the in- dividual, or they diminish property to a certain extent. There are few scientific- ally certain criteria of legislation, and- as it is often difficult to mark the line where what is called the police power of the states is limited by the constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the law making power. In other words, the fourteenth amend- ment is to be given a practical construc- tion in the light of concrete facts and existing conditions, and in determining the validity of legislation alleged to be obnoxious to that amendment, the courts will take into consideration the local con- ditions and the nature of the evil which it was intended to reach and correct. Noble State Bank v. Haskell, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 186, followed in Shallenberger v. First State Bank, 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189. The criterion is not the possibility of conceivable injury, but the just and rea- sonable character of the requirements of the act, having reference to the subject with which it deals. It is not sufficient to invalidate the act that now and then an extraordinary case may turn up. Con- stitutional law, like other mortal con- trivances, has to take some chances. Blinn V. Nelson, 222 U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1 ; American Land Co. v. Zeiss, 219 U. S. 47, 67, 55 L. Ed. 82. 21 S. Ct. 200. See, also, ante, "Judicial Con- trol of Legislative Discretion," VI, D, 3, d, (4), (b), (bb). 323 367-373 CONSTITUTIONAL LAW. \'ol. lY. i. Equality Rule Forbids That Indiz'idual Shall Be Subjected to Arbitrary Ex- ercise of Pozver — (4) Arbitrary and Oppressive Administration of Statutes. — See notes 15, 19. 3. ReguIwAtion of Business, Trade, Occupation or Profession — a. Gen- erally.—See note 23. See, also, post, Police Power. b. Right to Pursue Lazvful Occupation, Acquire and Dispose of Property, without Discrimination. — See note 31. c 367-15. Where statute so framed as to be susceptible of arbitrary or oppressive administration — Possibility of evil under statute. — See ante, "Rigid Equality Not Required: Legislature Permitted a Wide Discretion." VIl, B, 2, h, (9). 368-19. Vesting discretion in some sub- ordinate tribunal board or officer. — The possibilit}- that the comptroller may re- fuse a license to a private banker upon his arbitrary whim does not invalidate, under Const. U. S. Amend. 14, the re- quirement of Laws N. Y. 1910, c. 348, that a license from that official be ob- tained by individuals or partnerships de- siring to engage in that business. Engel V. O'Malley, 219 U. S. 128, 55 L. Ed. 128, 31 S. Ct. 191, affirming decree (C. C. 1910\ 182 F. 365. The municipal power to make reason- able regulations respecting the occupancy of the city streets by a telegraph com- pany accepting the provisions of the Act of July 24, 1866, giving the right to con struct, maintain, and operate lines over the post roads of the United States, is not exceeded, as granting arbitrary dis- cretion to municipal officers, by an ordi- nance which leaves to the determination of the city engineer the size, quality, character number, condition, appearance, and manner of erection of poles and wires, and to the judgment of other of- ficials the safety and suitableness of poles, wires, attachments, insulations, etc., and which empowers the committee on streets to require permission to be given to others to place lighting wires upon the poles, where, in the committee's opin- ion, they will not interfere with the owner's business, and which authorizes such committee to pass upon under- ground plans, and invests other officials with supervisory powers over the carry- ing out of such plans, including the lay- ing of conduits and the replacement of paveinents. Western Union Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 710, 32 S. Ct. 449. There is nothing in the constitution of the United States to prevent the grant of these discretionary powers to the com- mittees and officers named. Western Union Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 710, 32 S. Ct. 449. 372-23. Regulation of business, trade, occupation or profession. — In Gundling v. Chicago, 177 U. S. 183, 44 L. Ed. 725, 20 S. Ct. 633, the federr.l supreme court sum- marized the doctrine as follows: "Regula- tions respecting the pursuit of a lawful trade or business are of very frequent oc- currence in the various cities of the coun- try, and what such regulations shall be, and to what particular trade, business, or occupation they shall apply, are questions for the state to determine, and their de- termination comes within the proper ex- ercise of the police power by the state; and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizens are un- necessarily, and in a manner wholly ar- bitrary, interfered with or destroyed, with- out due process of law, they do not ex- tend beyond the power of the state to pass, and they form no subject for fed- eral interference." Williams v. Arkansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493. Insurance companies, and. indeed, all corporations, associations, and individ- uals, within the jurisdiction of a state are subject to such regulations, in respect to their relative rights and duties, as the state may. in the exercise of its police power, and in harmony with its own and the federal constitution, prescribe for the public convenience and the general good. German Alliance Ins. Co. z: Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246. See, also. House v. Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234. It may be stated as a general rule that an act which puts in one class all engiged in business of a special and public char- acter requires of them the performance of a duty which they can do better and more quickly than others, and imposes a not exorbitant penalty for a failure to per- form that duty within a reasonable time, can not be adjudged unconstitutional as a purely arbitrary classification. Sea- board Air Line Railway z'. Seegers, 207 U. S. 73, 52 L. Ed. 108, 28 S. Ct. 28. 373-31. Regulating different branches of the same business. — See post, POLICE POWER. As is said in Carroll z'. Greenwich Ins. Co., 199 U. S. 401, 411. 50 L. Ed. 246, 2G S. Ct. 66: "If an evil is specially experi- enced in a particular branch of business, the constitution embodies no prohibition of laws confined to the evil, or doctrin- aire requirement that they should be couched in all embracing terms." Lindsley 324 Vol. I\'. CONSTITUTIONAL LAW. 373 b 1/2. Distinctions Based upon Sex. — The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done stand- ing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to asse,rt full rights, and in the capacity to main- tain the struggle for subsistence. This difference justifies a difference in legis- lation, and upholds that which is designed to compensate for some of the burdens which rest upon woman. ^^a jf ^ g^^^-g ^^^^ \^ advisable to put a lighter burden upon women than upon men with regard to an employment that people commonly regard as more appropriate for the former, the fourteenth amendment does not interfere by creating a fictitious equality where there is a real difference.^-" V. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. Their validity has been uniformly rec- ognized save where they have been found to be merely arbitrary mandates, or to discriminate invidiously between differ- ent persons in substantially the same sit- uation. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. Regulation of banks and banking. — The exemption of banks or trust companies and bona fide mortgages from the opera- tion of Conn. Pub. Acts 1907, c. 238, pro- hibiting the exacting of more than 15 per cent interest on loans, or accepting a note for a greater amount than that actu- ally loaned, with intent to evade this pro- vision, does not render such statute repugnant to the equal protection of the laws clause of the federal constitution, but such classification has a reasonable basis. Griffith v. Connecticut, 218 U. S. 563, 54 L. Ed. 1151, 31 S. Ct. 132; Griffith V. Connecticut, 218 U. S. 572, 54 L. Ed. 1155, 31 S. Ct. 134, affirming judgment State V. Griffith. 74 .\. 1068, 83 Conn. 1. Savings banks are not unconstitution- ally discriminated against by making ap- plicable to them alone the provisions of Laws Mass. 1907, c. 340, that deposits which have remained inactive and un- claimed for thirtj^ years, where the claimant is unknown or the depositor can not be found, shall be paid to the treasurer and receiver general, to be held by him as trustee for the true owner or his legal representatives. Provident Institution for Savings v. Malone, 221 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661, affirming judgm.ent Malone v. Provident Institution for Sav- ings in Boston. 86 N. E. 912, 201 Mass. 23. No unconstitutional discrimination is made by exempting those private bankers in whose business the average amount of each sum received is not less than $500, and those who give a bond in a specified amount, from the requirement of Laws N. Y. 1910, c. 348, that a license from the comptroller be obtained by individuals or partnerships desiring to engage in the business of receiving deposits of money for safe-keeping, or for the purpose of transmission to another, or for any other purpose. Engel v. O'Malley, 219 U. S. 128, 55 L. Ed. 128, 31 S. Ct. 191, affirming de- cree (C. C. 1910) 182 F. 365. Uniformity under the same conditions, embracing persons not subject to same uniformity or degree. — The federal su- preme court has never so construed the limitation imposed by the fourteenth amendment upon the power of the state to legislate with reference to particular employments as to render ineffectual a general classification resting upon obvi- ous principles of public policy, because it may happen that the classification in- cludes persons not subject to a uniform degree of danger. For example, legis- lation abolishing the fellow-servant doc- trine as to railway employees is not obnoxious to the fourteenth amendment because it embraces within its terms other employees than those actually engaged in the operation of trains, and therefore not exposed to the hazards peculiar to the operation of railways. Mobile, etc.. R. Co. V. Turnipseed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136. 373-32a. Distinctions based upon sex — As to hours of labor. — Muller v. Oregon, 208 U. S. 412, 52 L. Ed. 551, 28 S. Ct. 324. Rights under Const. U. S. Amend. 14 are not infringed by the limitation of the hours of labor of women employed in laundries to 10 hours daily, which is made by Laws Or. 1903, p. 148, although like legislation affecting male employees may be invalid. Judgment, State ;;■. Muller (1906), 85 P. 855, 48 Or. 252, affirmed. Muller V. Oregon, 208 U. S- 412, 52 L. Ed. 551, 28 S. Ct. 324. 373-32b. Same — Discrimination in favor of females employed in laundries. — Quong Wing V. Kirkendall, 223 U. S. 59. 56 L. Ed. 350, 32 S. Ct. 192. See post, L.\BOR. E-xempting steam laundries and women engaged in the laundry business, where not more than two women are employed, from the license tax imposed by Mont. Rev. Codes, § 2776, upon the laundry business, does not deny the equal pro- tection of the laws to a man operating a hand laundry. Quong Wing v. Kirken- dall, 223 U. S. 59, 56 L. Ed. 350, 32 S. Ct. 192. 325 373 CONSTITUTIONAL LAW. Vol. IV. b 1/4. Fraudulent and Voluntary Conveyances. — Sales in Bulk Acts. — Statutes designed to prevent conveyances in fraud of the rights of creditors and forbidding sales in bulk otherwise than in the regular course of business, unless an inventory has been first made and notice of the proposed sale given to cred- itors, are within the police power of the state and not invalid as denying the equal protection of the laws or as a deprivation of liberty or property without due process of law."^*" b 1/8. Distinctions Based upon the Degree of Evil. — Legislation which reg- ulates business may recognize degrees of evil and make distinctions based thereon without being arbitrary, unreasonable, or in conflict with the equal protection provision of the fourteenth amendment to the constitution of the United States.^-*^ But where size is not an index to an admitted evil, the law can not discriminate between the great and small. •"'-'' 373-32C. Fraudulent and voluntary con- veyances — Sales in bulk acts. — Kidd, etc., Co. V. Mussehnan Grocery Co., 217 U. S. 461, 54 L. Ed. 839, 31 S. Ct. 606; Lemieux V. Young, 211 U. S. 489, 53 L. Ed. 295, 29 S. Ct. 174. See post, FRAUDULENT AND VOLUNTARY CONVEYANCES. Conn. Gen. Laws, §§ 4868, 4869, avoid- ing, as against creditors, sales by retail dealers of their entire stock at a single transaction, and not in the regular course of business, unless notice of intention to make such sale be recorded seven days before its consummation, is a valid ex- ercise of police power and does not deny the equal protection of the laws. Lemieux V. Young, 311 U. S. 489, 53 L. Ed. 295, 29 S. Ct. 174. The Michigan sales in hulk act (Pub. Acts 1905, No. 223), avoiding, as against creditors, sales in bulk otherwise than in the regular course of business, unless an inventory is made at least five days be- fore the sale, and the purchaser receives a list of the seller's creditors, and notifies them of the proposed sale personally, or by registered mail, at least five days be- fore its consummation, and making a purchaser not conforming to the statute a receiver for the benefit of the seller's creditors, is a valid exercise of the police power, and does not deny the equal pro- tection of the laws. Kidd, etc., Co. v. Musselman Grocery Co., 217 U. S. 461, 54 L Ed. 839, 31 S. Ct. 606, affirming judg- ment, Musselman Grocery Co. v. Kidd, Dater & Price Co. (1908) 115 N. W. 409, 151 Mich. 478, following Lemieux v. Young, 211 U. S. 489, 53 L. Ed. 295, 29 S. Ct. 174. The Michigan sales in bulk act (Pub. Acts 1905, No. 223), avoiding as against creditors sales in bulk otherwise than in the regular course of business, unless an inventory is made at least five days be- fore the sale, and the purchaser receives a list of the seller's creditors and notifies them of the proposed sale personally, or by registered mail, at least five days be- fore its consummation and making a purchaser in conforming to the statute a receiver for the benefit of the seller's creditors, is a valid exercise of the police power, and does not deny due process of law. Kidd, etc., Co. v. Musselman Gro- cery Co., 217 U. _S. 461, 54 L Ed. 839, 31 S. Ct. 606, affirming judgment Musselman Grocery Co. v. Kidd, Dater & Price Co. (1908) 115 N. W. 409, 151 Mich. 478. 373-32d. Distinctions based upon the de- gree of evil. — Mutual Loan Co. v. Martell, 222 U. S. 225, 56 L Ed. 175, 32 S. Ct. 74; Engel V. O'Malley, 219 U S. 128, 55 L. Ed. 128, 31 S. Ct. 191; Heath, etc., Mfg. Co. V. Worst, 207 U. S. 338, 356, 52 L Ed. 236, 28 S. Ct. 114; Ozan Lumber Co. v. Union County Nat. Bank, 207 U. S. 251, 52 L Ed. 195, 28 S. Ct. 89. Forbidding assignments of or orders for wages. — Exempting national banks, and banks under the supervision of the bank commissioner, and certain loan companies, from the provisions of Laws Mass. 1908, c. 605, §§ 7, 8, making invalid against the employer assignments of, or orders for, wages to be earned in the future, unless recorded, accepted in writing by the em- ployer, and accompanied by the written consent of the wife of the employee, does not deny the equal protection of the laws to an assignee not falling within one of the excepted classes. Mutual Loan Co. v. Martell, 222 U. S. 225, 56 L. Ed. 175, 32 S. Ct. 74, affirming judgment (1909) 86 N. E. 916, 200 Mass. 482. But even if some degree of evil which the statute was intended to prevent could be ascribed to loans made by the exempted institutions, their exceptions would not make the law unconstitutional. Legisla- tion may recognize degrees of evil without being arbitrary, unreasonable, or in con- flict with the equal protection provision of the 14th amendment to the constitution of the United States. Mutual Loan Co. v. Martell, 222 U. S. 225, 56 L Ed. 175, 32 S. Ct. 74; Ozan Lumber Co. v. Union County Nat. Bank, 207 U. S. 251, 52 L. Ed. 195, 28 S. Ct. 89; Heath, etc., Mfg. Co. v. Worst. 207 U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114. 373-32e. Where size not an index to evil. —Engel V. O'Malley, 219 U. S. 128, 55 L Ed. 128, 31 S. Ct. 191. 336 Vol. IV coxsriTurioxAL law. 374 d 1/2. Securing PayDicut of Wages Promptly and in Money. — See, generally, post, Police Power. x\s to statutes forbidding assignments of and orders for wages, see ante, "Distinctions Based upon the Degree of Evil," VII, B, 3, b 1/8. f. Eight Hour Lazvs. — See ante, "Distinctions Based upon Sex," VII, B, 3, b 1/2. See, also, the titles Interstate and Foreign Commerce; Labor; Po- lice Power. h. Regulation of Rates. — See post. Police Power. i. Abolishing the Doctrine of Fellozv Servants. — The federal supreme court has never so construed the limitation imposed by the fourteenth amendment upon the power of the state to legislate with reference to particular employments as to render ineffectual a general classification resting upon obvious principles of public policy, because it may happen that the classification includes persons not subject to a uniform degree of danger. The insistence, therefore, that legisla- tion in respect of railway employees generally is repugnant to the clause of the constitution guaranteeing the equal protection of the law, merely because it is not limited to those engaged in the actual operations of trains, is without merit. ^^^ Neither is such legislation a denial of the equal protection of the laws because it applies to corporations and not to individual employers. "^'^ 374-35a. Abolishing the doctrine of fel- low servants. — ^lobile, etc., R. Co. c'. Turnipseed. 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136; Louisville, etc., R. Co. v. Mel- ton, 218 U. S. 36. 54 L. Ed. 921, 30 S. Ct. 676. A classification of railway employees, which may be justified from general con- siderations based upon the hazardous character of the occupation, does not be- come arbitrary and a denial of the equal protection of the law the moment it is found to embrace employees not exposed to hazards peculiar to railway operation. Mobile, etc., R. Co. v. Turnipseed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136, following- Louisville, etc., R. Co. V. Melton, 218 U. S. 36, 54 L. Ed. 921. 30 S. Ct. 676. See post, FELLOW SERVANTS. The abrogation of the fellow-servant rule as to railway employees, made by Code Miss. 1892, § 3559, does not offend against the equal protection of the laws clause of the federal constitution because construed as applying to the foreman of a section crew charged with keeping the track in repair. Such employees, though not directl}' engaged in the management of trains, are nevertheless within the gen- eral line of hazard inherent in the railwa}' business. Mobile, etc.. R. Co. z\ Turnip- seed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136; Mobile, etc., R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 124 Am. St. Rep. 679. The modification of the fellow-servant rule as to railway employees, made by Act Ind. March 4, 1893 (Acts 1893. c. 130) § 1. does not offend against the equal protec- tion of the laws clause of the federal con- stitution because construed as applying to all employees doing work essential to en- able the carrying on of railway operations, and not as limited to those engaged in or about the movement of trains, but such general classification of railway employees is a proper exercise of the police power. Louisville, etc., R. Co. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676, affirming judgment (1907) 105 S. W. 366, 127 Ky. 276. It is beyond doubt foreclosed that the Indian Statute Act 1893, c. 130, § 1 docs not offend against the equal protection clause of the 14th amendment, because it subjects railroad employees to a different rule as to the doctrine of fellow servant from that which prevails as to other em- ployments in that state. Louisville, etc.. R. Co. V. Melton, 218 U. S. 36, 54 L. Ed. 921, 30 S. Ct. 676; Tullis v. Lake Erie, etc., R. Co., 175 U. S. 348, 44 L. Ed. 192, 20 S. Ct. 136; Pittsburg, etc., R. Co. v. Light- heiser, 212 U. S. 560, 53 L. Ed. 652, 29 S. Ct. 688. 374-35b. Statute applicable only to cor- porate employers. — Aluminum Co. v. Ram- sey, 222 U. S. 251, 56 L. Ed. 185. 32 S. Ct. 76. Abolishing the fellow-servant rule as to corporations operating railroads within the state, as is done by Act Ark. March 8, 1907, p. 162, does not deny such a corpora- tion the equal protection of the laws be- cause the statute does not applj' to individ- ual employers. Aluminum Co. v. Ramsey, 222 IT. S. 251, 56 L. Ed. 185, 32 S. Ct. 76, affirming judgment (1909) 117 S. W. 568, 89 Ark. 522. The distinction, among others, which the statute makes is between railroads operating in the state and individuals, and such distinction has been maintained by the federal supreme court as not offending the constitution of the United States. Aluminum Co. v. Ramsey, 222 U. S. 251. 56 L. Ed. 185, 32 S. Ct. 76; Tullis 7. Lake Erie, etc., R. Co.. 175 U. S. 348. 44 L. Ed. 192, 20 S. Ct. 136; Minnesota Iron Co. v. Kline, 199 U. S. 593, 50 L. Ed. 322, 26 S. Ct. 159. See also. The Employers' Liability 327 374-376 CONSTITUTIONAL LAW. Vol. IV. i 1/2. Abolishing the Doctrine of Comparative and Contributory Negli- gence. — The police power of the state justifies a statutory modification of the doctrine of contributory negligence by providing that such negligence on the part of an injured employee shall not be a bar to a recovery against the employer, where the employee's negligence was slight, and that of the employer gross in comparison, but that damages shall be diminished in proportion to the amount of negligence attributable to the injured employee. ^^"^ j. Particular Business, Occupation or Profession. — See, also, post, Police Power. (2) Laundries. — Distinctions Based upon Sex. — See ante, ''Distinctions Based upon Sex," VII, B, 3, b 1/2. (4) Imitation and Adulterated Food Stuffs. — See post, Food and Drugs; Interstate: and Foreign Commerce; Police Power. (4 1/2) Other Imitations and Adulterations. — A statute which is directed against the adulteration of articles and designed to secure a true representation of their character or composition, and which prohibits certain ingredients from being used therein, as in mixed paints, for example, without a specific declara- tion that they are used, is irremediable by the courts even though it imposes a burden on that class of manufacturers and sellers of paints. ^'^'^ Cases, 207 U. S. 463, 504, 52 L. Ed. 297, 28 S. Ct. 141; and El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. 374-3 5c. Abolishing the doctrine of com- parative and contributory negligence. — Missouri Pac. R. Co. v. Castle, 224 U. S. 541, 56 L. Ed. 875, 32 S. Ct. 606. See post, NEGLIGENCE. As applied to railway companies. — Rail- way companies are not denied the equal protection of the laws, nor are their priv- i'leges and immunities as citizens of the United States abridged, by Neb. Conip. Stat. chap. 21, § 4, under which the con- tributory negligence of a railway employee injured while engaged in train service will not bar a recovery from the company, where his negligence was slight, and that of the company gross in comparison, the damages being diminished in proportion to the amount of negligence attributable to the injured employee. Missouri Pac. R. Co. V. Castle, 224 U. S. 541, 56 L. Ed. 875, 32 S. Ct. 606. The court has repeatedly upheld the power of a state to impose upon a railway company liability to an employee engaged in train service for an injury inflicted through the negligence of another em- ployee in the same service. Missouri Pac. R. Co. V. Castle, 224 U. S. 541, 56 L- Ed. 875, 32 S. Ct. 606; Missouri Pac. R. Co. v. Mackey, 127 U. S. 205, 32 L. Ed. 107, 8 S. Ct. 1161; Minneapolis, etc., R. Co. v. Her- rick, 127 U. S. 210, 32 L. Ed. 109, 8 S. Ct. 1176; Tullis V. Lake Erie, etc., R. Co., 175 U. S. 348, 44 L. Ed. 192. 20 S. Ct. 136; Chi- cago, etc., R. Co. V. Pontius, 157 U. S. 209, 39 L. Ed. 675, 15 S. Ct. 585; and Second Employers' Liability Cases, 223 U. S. 1. 56 L. Ed. 327, 32 S. Ct. 169. The same reasons which justified a de- parture from the common-law rule in re- spect to the negligence of a fellow servant also justify a similar departure in regard to the effect of contributory negligence. Missouri Pac. R. Co. v. Castle, 224 U. S. 54], 56 L. Ed. 875, 32 S. Ct. 606. 376-39a. Other imitations and adultera- tions. — Heath, etc., Mfg. Co. v. Worst. 207 U. S. 338. 52 L. Ed. 236, 28 S. Ct. 114. Same — Paints. — When a legislature en- acts a statute to remedy evils in the adul- teration of paints, by prohibiting the use of certain ingredients, without a specific declaration on the label that they have been used, it would be limiting the power of the state, too much, to say that the judgment of the legislature, exercised under such circumstances, must be con- demned as denying the equal protection of the laws, assured by the constitution of the United States in the 14th amendment. Heath, etc., Mfg. Co. v. Worst, 207 U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114. Manufacturers and sellers of mixed paints containing other ingredients than pure linseed oil, pure carbonate of lead, oxid of zinc, turpentine, Japan dryer, and pure colors, are not deprived of their lib- erty without due process of law by a state statute which makes such manufacture and sale a misdemeanor unless the label shows the constituent ingredients and quantity or amount of each. Heath, etc., Mfg. Co. V. Worst, 207 U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114. The equal protection of the laws is not denied to manufacturers and sellers of mixed paints containing other ingredients than pure linseed oil, pure carbonate of lead, oxid of zinc, turpentine, Japan dryer, and pure colors, by a state statute which makes the manufacture and sale of such paints a misdemeanor unless the label shows the constituent ingredients and the quantity or amount of each, because the 328 Vol. IV. CONSTITUTIONAL LAW. 380-383 (5) Practice of Medicine. — See post, Police Power. (6) Manufacture and Sale of Intoxicating Liquors. — See post, Intoxicating Liquors. (7) Insurance. — See post, Insurance; Poeice: Power. (9) Dealing in Futures. — See post. Police Power. (14) Railroads. — See note 54. (14 1/2) Street Railroads. — See post. Police Power; Street Railways. (16) Banks and Banking. — See ante. Banks and Banking, p. 184; post, Police Power. And see, also, ante, "Right to Pursue Lawful Occupation ; Acquire and Dispose of Property, without Discrimination," Vll, B, 3, b; "Dis- tinctions Based upon the Degree of Evil," VII, B, 3, b 1/8. (17) Sale of Patented Articles. — A statute requiring negotiable instruments given in payment for patented articles to show on their face for what they were given is not obnoxious to the equal protection clause of the federal constitution because it exempts from its operation merchants and dealers who sell such ar- ticles in the usual course of their business.^^'* (18) Mines and Mining; Mineral Waters, Oil, Gas, etc. — See post. Inter- state AND Foreign Commerce; Mines and Minerals; Police Power. (19) Advertising on Streets, in Public Conveyances, etc. — See post. Police Power. (20) Druniming and Soliciting on Trains, about Raihvay Stations, etc. — See post, Police Power. (21) Telegraphs and Telephones. — See post. Police Power; Telegraphs AND Telephones. As to statutes or ordinances vesting power and discretion in some single officer, board, or tribunal, see ante, "Arbitrary and Oppressive Administration of Statutes," VII, B, 2, i, (4). manufacture and sale of mixed paints con- taining only the ingredients specified in the statute, and, possibly, of all paste paints, are free from such consequence or condition. Heath, etc., Mfg. Co. v. Worst. .207 U. S. 338, 53 L. Ed. 236, 28 S. Ct. 114. 380-54. Forbidding railway company to plead acceptance of benefits from relief fund as a defense to action for personal injuries. — An unconstitutional discrimina- tion is not made by amending Code Iowa, § 2071, which defined the liability of rail- way corporations for injuries resulting from negligence or mismanagement in the use and operation of their railways, so that a railway company, when sued on such lia- bility, may not raise the defense that a recovery is barred by the acceptance of benefits under a contract of membership in its relief department, although this pro- vision of the amendatory act applies only to those employees who were einbraced within the provisions of the original stat- ute, and to the enforcement of the particu- lar liabilities which that statute defined, and the benefits of such statute were con- fined to those engaged in the hazardous business of operating railroads. Chicago, etc., R. Co. V. McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259, affirming judg- ment McGuire ?■. Chicago, B. & Q. R. Co; (1908), IIG N. W. 801, 138 Iowa, 604; Phil- adelphia, etc., R. Co. V. vSchubert, 224 U. S. 603, 56 L. Ed. 911, 32 S. Ct. 589. Modifying or abolishing doctrines as to fellow servants, contributory negligence, and comparative negligence. — See . ante, "Abolishing the Doctrine of Fellow Serv- ants," VII, B, 3, i; "Abolishing the Doc- trine of Comparative and Contributory Negligence," VII, B, 3, ii/<. Excluding same roads from provision respecting number of brakemen. — The ex- clusion of railroads less than 50 miles in length from the operation of Ark. Laws, 1907, No. 116, prescribing a minimum of three brakemen for freight trains of more than twenty-five cars, does not deny to other railroads the equal protection of the laws. Chicago, etc., R. Co. v. Arkansas, 219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275. 383-59a. Sale of patented articles. — Ozan Lumber Co. v. Union County Nat. Bank, 207 U. S. 251, 52 L. Ed. 195, 28 S. Ct. 89. The exemption of merchants and dealers who sell patented things in the usual course of business from the operation of Kirby's Ark. Dig., §§ 513-516, requiring a negotiable instrument taken in payment for a patented article to show on its face for what it was given or be void, does not render such statute repugnant to Const. U. S. Amend. 14, as denying the equal pro- tection of the laws. Judgment 145 F. 344, 76 C. C. A. 218. reversed. Ozan Lumber Co. V. Union Countv Nat. Bank, 207 U. S. 251, 52 L. Ed. 195, 28 S. Ct. 89. 329 383-385 CONSTITUTIONAL LAW. Vol. IV 4. As Requiring Equal and Impartial Justice; — a. Generally in Ciiil Pro- ceedings — (1) Generally. — See notes 60, 61. (4j Change of Venue; Transfer of Cause, etc. — See note 69. 383-60. As requiring equal and impartial justice — Right to resort to the courts — Imposing pencilties so severe as to deter exercise of right. — A statute providing for the establishment of rates for railroad transportation without giving the corpora- tion an opportunity to be heard, which fixes penalties for disobedience of its pro- visions by fines so enormous and impris- onment so severe as to intimidate the cor- porations and their officers from resorting to the courts to test the validity of the rates, is unconstitutional on its face, and without reference to the sufficiency of the rates, as depriving the corporations of the equal protection of the laws. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. Whether or not a railroad company is deprived of the equal protection of the laws, and its property rendered liable to be taken without due process of law, by a state statute providing for the establish- ment of rates of transportation, because the penalties fixed for violation of the statute are so enormous as to require obedience to the law rather than risk the penalties in testing it, although such obe- dience might, in the end, result in confis- cation of the railroad property, is a fed- eral question, within the jurisdiction of the circuit court of the United States. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. Section 4 of the North Carolina Act of 1907 (Pub. Laws 1907, p. 250, c. 216), pre- scribing the maximum rates which may be charged by railroad companies for the car- riage of passengers within the state, which provides that any railroad company violat- ing any provision of the act shall be liable to a penalty of $500 for each violation payable to the person aggrieved, and any agent of such company violating the act shall be guilty of a misdemeanor and sub- ject to fine or imprisonment or both, is unconstitutional as a denial to the equal protection of the laws by subjecting them to excessive and ruinous penalties if they exercise their right to contest the valid- ity of the law in the courts. Ex parte Wood, 155 Fed. 190, affirmed. Hunter z'. Wood, 209 U. S. 205, 52 L. Ed. 747, 28 S. Ct. 372. 383-61. State not to deny equal and im- partial justice. — No state can deprive par- ticular persons or classes of persons of equal and impartial justice under the law. Ughbanks v. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372, citing In re Kemmler, 136 U. S. 436, 448, 34 L. Ed. 519, 10 S. Ct. 930; Caldwell 7j. Texas, 137 U. S. 692, 34 L. Ed. 816, 11 S. Ct. 224. 385-69. Right to remove cause to fed- eral courts. — Under the Missouri Act of March 7, 1907, a domestic railway com- pany might bring an action in the federal court, or, in a proper case, remove one thereto, without being subject to forfei- ture of its right to do business, or the im- position of the penalties provided for in the act; but as to foreign railway com- panies the statute provided that in case they should bring a suit in the' federal courts, or remove it from the state courts to the federal courts, their right to do busi- ness in the state should be forfeited and that they should be subject to the penal- ties prescribed in the act. Held, that as to a foreign corporation which had come within the state and complied with its laws, and which had acquired, under the sanction of the state, a large amount of property within its borders, and which had thus become a person within the state, within the meaning of the constitution and entitled to its protection, the statute was unconstitutional as denying the equal protection of the laws. Herndon v. Chi- cago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 9^0, 30 S. Ct. 633; Roach v. Atchinson. etc., R. Co., 218 U. S. 159, 54 L. Ed. 978, 30 S. Ct. 639. See, also, Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Pullman Co. v. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232; Lud- wig V. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280; Southern R. Co. V. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. See post, REMOVAL OF CAUSES. Speaking with reference to this act, the court says: "As to the validity of the Act of March 13, 1907, forfeiting the right of the companj^ to do business in the state of Missouri, and subjecting it to penalties in case it should bring a suit in the federal courts, or remove one from the state courts to the federal courts, but little need be said. This is so because of the cases decided at this term, involving conten- tions kindred to the one made in this case. See Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Pullman Co. v. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232; Ludwig v. West- ern Union Tel. Co., 216 U. S. 146. 54 L- Ed. 423, 30 S. Ct. 280; Southern R. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. Applying the principles an- nounced in those cases, it is evident that the act in controversy can not stand, in view of the provisions of the constitution of the United States. Moreover, this is not a case where the state has undertaken to prevent the coming of the corporation 330 \'ol. I\' COXSTITUTIOKAL LAW. 385 (4 1/2) Right of Action or Defense.— See, generally, post, "Laws Afifecting Rights of Action and Defenses," VIII, C, 11, et seq. See note 69b. (?) Statutes Respecting the Rules of Evidence. — See note 70. into its borders for the purpose of carry- ing on business. The corporation was within the state, complying with its laws, and had acquired, under the sanction of the state, a large amount of property within its borders, and thus had become a person within the state, within tfie meaning of the constitution, and entitled to its protec- tion. Under the statute in controversy, a domestic railroad compan}'' might bring an action in the federal court, or, in a proper case, remove one thereto, without being subject to the forfeiture of its right to do business, or to the imposition of pen- alties provided for in the act. In all the cases in this court, discussing the right of the states to exclude foreign corporations, and to prevent them from removing cases to the federal courts, it has been conceded that while the right to do local business within the state may have been derived from the federal constitution, the right to resort to the federal courts is a creation of the constitution of the United States and the statutes passed in pursuance thereof. It is enough now to say that within the principles decided at this term, in the cases cited above, the Act of March 13, 1907, as applied to the complainant rail- road company, in view of the admitted facts set out in the bill in this case, is un- constitutional and void."' Herndon v. Chi- cago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970. 30 S. Ct. 633. 385-69b. Right of action or defense.— A foreign life insurance company doing busi- ness in Missouri is not denied the equal protection of the laws by Rev. St. Mo.. § 7890, which cuts ofif any defense by a life insurance company domestic or foreign, based upon the false and fraudulent state- ments in the application, unless the mat- ter misrepresented, in the judgment of the jury, actually contributed to the death of the insured. Northwestern Nat. Life Ins. Co. V. Riggs. 203 U. S. 243. 51 L. Ed. 168. 27 S. Ct. 126. See, also. post. DUE PROC- ESS OF LAW. 385-70. Rules of evidence — Statutory presumptions. — See post, "Laws Affectins; the Rules of Evidence," VIII, C, 13, f. Production of books, papers, records, etc. — Distinction between corporations and individuals — Books and papers, outside the state and those within. — Although it be conceded that the provisions of a statute regulating corporations doing business within its borders can not, consistently with constitutional limitations, be applied to individuals, such concession would not cause the act to amount to a denial of the equal protection of the laws. The differ- ence between the extent of the power which the state may exert over the doing of business within the state by an individ- ual and that which it can exercise as to corporations furnishes a distinction au- thorizing a classification between the two. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 343, 53 L. Ed. 530, 29 S. Ct. 370. The fact that the remedy given by an act for the production of books and papers and the examination of witnesses is con- fined to corporations and joint stock asso- ciations, and does not extend to individu- als, furnishes no ground for the proposi- tion that a denial of the equal protection of the laws thereby resulted. The wider scope of the power which the state pos- sesses over corporations and joint stock as- sociations in and of itself affords a ground for the classification adopted. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 349, 53 L. Ed. 530, 29 S. Ct. 370. The remedy given by the Arkansas An- titrust Act (Act Ark. Jan. 23, 1905 [Acts 1905, p. 8] § 8), to secure the attendance of witnesses before a commission, and the production of books and papers in a pro- ceeding under that act, does not deny the equal protection of the laws because it ap- plies only to books and papers outside the state, or because, properly construed, it rna^r be conhned to corporations and joint- stock associations, and not extended to in- dividuals. Judgment (1907), 100 S. W. 407, 81 Ark. 519, affirmed. Hammond Packing Co. V. Arkansas, 212 U. S. 322. 53 L. Ed. 530, 29 S. Ct. 370. The contention that because § 8 applies only to books and papers outside of the state, therefore it denies the equal protec- tion of the laws is not open, since it has been conclusively settled that, without de- nying the equal protection of the laws, relations may be based upon the fact that persons or property dealt with are not within the territorial jurisdiction of the regulating authority. Hammond Packing Co. V. Arkansas. 212 U. S. 322, 349, 53 L. Ed. 530. 29 S. Ct. 370; Central Loan, etc., Co. V. Campbell Comm. Co., 173 U. S. 84, 43 L. Ed. 623. Corporations are not denied the equal protection of the laws secured by Const. U. S. Amend. 14, by the provisions of Act Vt. Oct. 9, 1906, p. 79, Xo. 75, under which corporations alone may be compelled to produce before a court or grand jury ma- terial books and papers in their custody or control. Judgment, In re Consolidated Rendering Co. (Vt. 1907) 66 .A.. 790. af- firmed. Consolidated Rendering Co. v. Vermont. 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. 331 386-387 CONSTITUTIONAL LAW. Vol. IV. (7) Laws Respecting Damages and Penalties. — See note 72. (8) Statutes Awarding Attorney's Fees against Certain Classes of Defend- ants. — See note 73. 386-72. Laws respecting damages and penalties — Distinctions between residents and nonresidents.— The distinction be- tween resident and nonresident owners of abutting property in Act May 19, 1896, 29 Stat. 125, c. 20i3, creating a drainage system for the District of Columbia, in that the coercion of the law as to making connec- tions with a sewer is by criminal punish- ment in the case of residents, whereas, against nonresident owners, the district does the work in case of their neglect, and assesses the cost against the property as a tax. does not invalidate the statute for discrimination, even if congress can not enact discriminating legislation. District of Columbia v. Brooks, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560, reversed 29 App. D. C. 563. The statute under consideration in the case at bar enjoins a duty on both resident and nonresident lot ov/ners, a duty neces- sary to be followed to preserve the health of the city. There is a difference only in the manner of enforcing it, a difTerence arising from the different situation of the lot owners, and therefore competent for congress to regard in its legislation. In other words, under the circumstances pre- sented by this record, the distinction be- tween residents and nonresidents is a proper basis for classification. It might not be under other circumstances. Dis- trict of Columbia v. Brooke, 214 U. S. 138. 53 L. Ed. 941, 29 S. Ct. 560; Blake v. Mc- Clung, 172 U. S. 239, 43 L. Ed. 432, 19 S. Ct. 165; S. C, 176 U. S. 59, 44 L. Ed. 371, 20 S. Ct. 307; Sullv v. American Nat. Bank, 178 U.S. 289, 44 t. Ed. 1072, 20 S. Ct. 93."). Distinctions between individuals and corporations. — The possible invalidity as to individuals of the provisions of Act Ark. Jan. 23, 1905 (Acts 1905, p. 2), § 1, penaliz- ing the doing of business within the state by members of a trust or combination to control prices, does not render such pro- visions invalid as to corporations, as deny- ing the equal protection of the laws. Judg- ment 100 S. W. 407, 81 Ark. 519, affirmed. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. Singling out particular class of corpora- tions or individuals. — It may be stated as a general rule that an act which puts in one class all engaged in business of a spe- cial and public character, requires of them the performance of a duty which they can do better and more quickly than others, and imposes a not exorbitant penalty for a failure to perform that duty within a reasonable time, can not be adjudged un- constitutional as a purely arbitrary classi- fication. Seaboard Air Eine Railway v. Seegers, 207 U. S. 73, 52 L. Ed. 108, 28 S. Ct. 28. Common carriers are not denied the equal protection guaranteed by U. S. Const., fourteenth amendment, by the provisions of S. C. Act Eebruary 23, 1903, p. 81, § 2, requiring them to adjust and pay every claim for loss or damage to an intrastate shipment within forty days after the filing of a claim, under penalty of $50 for each failure or refusal, where there can be no award of a penalty under the statute unless there is a recovery of the full amount claimed. Seaboard Air Line Railway v. Seegers, 207 U. S. 73, 52 L. Ed. 108, 28 S. Ct. 28. It is not an act imposing a penalty for the nonpayment of debts. Seaboard Air Line Railway v. Seegers, 207 U. S. 73, 52 L. Ed. 108, 28 S. Ct. 28. The purpose of this legislation is not primarily to enforce the collection of debts, but to compel the performance of duties which the carrier assumes when it enters upon the discharge of its public functions, and while there are limits be-' yond which penalties may not go even in cases where classification is legitimate, in this case the amount of penalty im- posed is not so great, or the length of time within which the adjustment and payment are to be made so short, as to render the act imposing the penalty and fixing the time beyond the power of the state. Seaboard Air Line Railvv?ay v. Seegers, 207 U. S. 73, 52 L. Ed. 108, 28 S. Ct. 28. 387-73. Statutes awarding attorney's fees against certain classes of defendants. — Exacting double liability and an at- torney's fee under the authority of Ark. Laws 1907, No. 61, from a railway com- pany refusing to pay within thirty days an excessive demand for the killing of live stock by one of its trains, takes the com- pany's property without due process of law. St. Louis, etc., R. Co. v. Wynne, 224 U. S. 354, 56 L. Ed. 799, 32 S. Ct. 493. The owner of two horses which were killed by a train of a railway company served upon the company a written notice demanding damages in the sum of $500. The company refused to pay the demand, and after the expiration of thirty days the owner brought suit in a court of the state to recover his damages, alleged in the complaint to be $400. A trial to a jury resulted in a verdict for the 'owner, as- sessing his damages at the amount sued for, and the court, deeming the statute applicable, gave judgment for double that amount and for an attorney's fee of $50. It will be perceived that, while before the 333 Vol. IV. CONSTITUTIONAL LAW 390-391 d. In Criiiiiiial Proceedings — (1) Generally. — See note 81. (2) Constitution of Grand Jury. — See, generally, ante. Civil Rights, p. 236. See note 82a. (5) Rules of Ecndence; Absent Witnesses. — See note 87. suit the owner demanded $500 as dam- ages, which the company refused to pay, he did not in his suit either claim or es- tablish that he was entitled to that amount. On the contrary, by the allega- tions in his complaint, he confessed, and by the verdict of the jury it was found, that his damages were but $400. Evi- dently, therefore, the prior demand was excessive and the company rightfully re- fused to pay it. The application made of the statute was such that the company was subjected to this extraordinary lia- bility for refusing to pay the excessive de- mand made before the suit. Held, that the statute, as so construed and applied, was an arbitrary exercise of the powers of government and violative of the funda- mental rights embraced within the con- ception of due process of law. St. Louis, etc.. R. Co. V. Wynne, 224 U. S. 354, 56 L. Ed. 799, 32 S. Ct. 493. 390-81. Equal and impartial justice in criminal proceedings. — The fourteenth amendment was not intended to, and does not, limit the powers of a state in dealing with crime committed within its own borders or with the punishment thereof, although no state can deprive particular persons or classes of persons of equal and impartial justice under the law. In re Kemmler, 136 U. S. 436, 448, 34 L. Ed. 519, 10 S. Ct. 930; Caldwell v. Texas, 137 U. S. 692, 34 L. Ed. 816, 11 S. Ct. 224; Ughbanks v. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. The fourteenth amendment does not forbid statutes to have a beginning — Dis- criminations in point of time. — "The four- teenth amendment does not forbid statutes and statutory changes to have a be- ginning, and thus discriminate between the rights of an earlier and later time." Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137; Sperry, etc.. Co. v. Rhodes, 220 U. S. 502, 505, 55 L. Ed. 561, 31 S. Ct. 490. Legislation which makes acts criminal which are done after they are forbidden, and assigns no penalties to acts done in pursuance of obligations previously le- gallj^ incurred, is not arbitrary classifica- tion. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137. The exception in favor of existing con- tracts, contained in Laws Kan. 1907. c. 250. making it criminal to sell or deliver black powder for use in any coal mines in the state except in original sealed pack- ages containing 12^/^ pounds of powder, does not make such statute repugnant to Const. U. S. Amend. 14, as denying the equal protection of the laws. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137, affirming Ex parte Williams, 79 Kan. 212, 98 P. 777. A statute which makes it a misdemeanor to use the name, portrait or picture of any living person for advertising purposes without the written consent of such per- son, first obtained, and which gives a right of action to the person whose name, portrait or picture is so used, is not ob- noxious to the equal protection clause of the fourteenth amendment, because, by its express terms, it is made to apply only to the use of photographs taken after, and not to those taken previous to its enact- ment. Sperry, etc., Co. v. Rhodes, 220 U. S. 502, 55 L. Ed. 561, 31 S. Ct. 490. 390-82a. Constitution of grand jury. — The provision in Act March 27, 1874 (Rev. St, 1874, p. 372), § 6, that no exception to a grand juror on account of his age shall be allowed after he has been sworn, does not deny the equal protection of the laws, under Const. U. S. Amend. 14, to one in- dicted for crime committed after such grand juror had been sworn. Judgment (Sup.), 66 A. 942, affirmed. (1907), State ■:■. Lang, 68 A. 210, judgment affirmed. Lang V. New Jersey, 209 U. S. 467, 52 L. Ed. 894, 28 S. Ct. 594. A person indicted for a crime committed after the grand jury was impaneled is not denied the equal protection of the laws because he is precluded from raising the objection that two of the grand jurors were over the age fixed b}'^ Laws N, J. 1876, p. 360, c. 196. under which objections on that ground must be made before the iury is sworn, where the object sought to be attained by the statute, according to the view adopted by the state court, was to make the grand jurj'- a more efficient instrument of justice, and not to benefit any particular defendant or class of de- fendants. Judgment. State v. Lang (N. T. 1907). 68 A. 210, affirmed. Lang v. New Jersey. 209 U. S. 467, 52 L. Ed. 894, 28 S. Ct. 594. 391-87. Rules or evidence — General nower of state to prescribe rules of evi- dence. — See ante, "State Courts; Their Constitution, Jurisdiction; and Procedure," VL D. 3, c, (4), (e). Rules of evidence — Prima facie pre- sumptions. — See post, "Laws Affecting the Rules of Evidence," VTri, C, 1.^, f. Production of books, papers and docu- ments — Distinction between corporations and individuals.— See ante, "Statute?. Re- specting the Rules of Evidence," VH, B, 4. a, (5). 333 391-392 CONSTITUTIONAL LAJV. \o\. IV. (6) Mode of Trial. — See note 88. (8) Unequal Punishment.— '^tt note 96. 391-88. Mode of trial. — A state maj- make different arrangements for trials un- der different circumstances of even the same class of offenses. Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917. 32 S. Ct. 583; Brown v. New Jersey, 175 U. S. 172, 177, 44 L. Ed. 119, 20 S. Ct. 77; Missouri v. Lewis, 101 U. S. 22, 31, 25 L. Ed. 989; Hayes v. Missouri, 120 U. S. 68, 71, 30 L. Ed. 578, 7 S. Ct. 350; Lang v. New Jersey, 209 U. S. 467, 52 L. Ed. 894. 28 S. Ct. 594. As to persons previously convicted of crime. — It may suitably adapt to the ex- igency the method of determining whether a person found guilty of crime has pre- viously been convicted of other offenses. Graham, v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583. Bringing a convict after judgment be- fore the court of another county in a separate proceeding instituted conform- ably to W. Va. Code, chap. 165, §§ 1-5, by information charging him with prior con- victions which were not alleged in the in- dictment on which he was last tried and convicted, and, on the finding of the jury that he was the former convict, sentenc- ing him to the additional punishment which chap. 152, §§ 23, 24, in such cases prescribes, does not deny him the equal protection of the laws because of the dif- ference in procedure between the case Vi'here the fact of former conviction is al- leged in the indictment and determined by the jury on the trial of the charge of crime, and the case where it is charged in the information, and determined by a iury in a proceeding thereby instituted Graham v. West Virginia, 224 U. S. 616. 56 L. Ed. 917, 32 S. Ct. 583. Distinctions between corporations and individuals. — Corporations are not denied the equal protection of the laws because corporate violators of the Tennessee Anti-Trust Act of March 16, 1903 (Laws 1903, c. 140), may be proceeded against by bill in equity on relation of the at- torney general, while natural persons of- fending against its provisions can not be tried without a preliminary investigation by a grand jury, and indictment or pre- sentment, and a trial by jur3^ with the right to an acquittal unless their guilt is established beyond a reasonable doubt, and to the benefit of a statute of limita- tions of one year. Standard Oil Co. v. Tennessee, 217 U. S. 413, 54 L. Ed. 817, 30 S. Ct. 543, affirming decree. State v. Standard Oil Co. of Kentucky (1908), 110 S. W. 565. 120 Tenn. 86. Different methods of trial for different corporations. — A foreign corporation ousted and fined $50,000 in civil quo war- ranto proceedings in the highest court of a state, for misuser of its license to do business in the state, can not claim to have been denied the equal protection of the laws because corporations prosecuted in the inferior state courts for identically the same acts, in violation of the state Anti-Trust Act, are entitled to a trial by jury, and, if convicted, can be ousted of their franchises and subjected to a fine not to exceed $100 per day during the time the combination continued in ef- fect. Standard Oil Co. v. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. It is contended that the defendants were denied the equal protection of the law. This claim is based upon the fact that, without indictment or trial by jury, they were ousted of their franchise and sub- jected to a fine of $50,000, at the discre- tion of the supreme court, v.^hile corpora- tions prosecuted in the circuit court for the identically same acts in violation of the anti-trust statute were entitled to a trial by jur}% and if convicted, could be ousted of their franchises and subjected to a fine not to exceed $100 per day, dur- ing the time the combination continued in effect. But proceedings by information in the nature of quo warranto differ in form and consequence from a prosecution by indictment for violation of a criminal statute. In the one, the state proceeds for a violation of the companj^'s private contract; in the other, it prosecutes for a violation of public laAV. The corporation may be deprived of its franchise for non- user, a mere failure to act. It may also be deprived of its character for that which, though innocent in itself, is beyond the power conferred upon it as an artificial person. If, however, the act of m.isuser is not only ultra vires but criminal, there is no merger of the civil liability in the criminal offense. Separate proceedings may be instituted, one to secure the civil judgment, and the other to enforce the criminal law. Both cases may involve a consideration of the same facts; and evi- dence warranting a judgment of ouster may be sufificient to sustain a conviction for crime. A judgment maj^ in one case sometimes be a bar to the other, but neither remedy is exclusive. The double liability, in civil and criminal proceedings, finds its counterpart in many instances; as, for example, where an attornej^ is dis- barred or ousted of his right to practice in the court because of conduct for which he may likewise be prosecuted and fined. Standard Oil Co. -'. Missouri. 224 U. S. 270. 56 L. Ed. 760. 770, 32 S. Ct. 406. 392-96. Increased punishment for per- sons previously convicted. — The propriety of inflicting severer punishment upon old offenders has lone been recognized in this 334 Vol. R' COXSTITUTIOXAL LAW. 393-394 f. Equal Protection as Regards the Right of Reiieiv by Xezv Trial, Appeal, Writ of Error, etc. — Allowing Appeal to Government and Not to the Ac- cused. — The equal protection of the laws is not denied by an act of conoress which authorizes the government to bring up a criminal case from a lower court to the supreme court of the United States when a demurrer to an indictment has been sustained, although the same privilege is denied the accused.'*^ 5. As Requiring Equal and Uniform Taxation — a. Prescribes No Iron Rule of Equal Taxation. — See note 5. c. State May Adjust System in All Reasonable and Proper JVays. — See note 7. country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal con- duct aggravates their guilt and justifies heavier penalties when they are again con- victed. This legislation has uniformly been sustained in the state courts and it has been held by the federal supreme court not to be repugnant to the federal constitution. Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583; Moore z: ^Missouri. 159 U. S. 673, 40 L. Ed. 301, 16 S. Ct. 179; McDonald v. Mas- sachusetts, 180 U. S. 311. 45 L. Ed. 542, 21 S. Ct. 389. A person sentenced under the Michigan Indeterminate Sentence Act (Pub. Acts 1903, No. 136), after having been twice before convicted of felony, is not denied the equal protection of the laws because he is deprived by that act, of the privi- lege therein accorded to other convicts at the end of the minimum term of the sentence to make application for parole, although the statute gives no hearing upon the question of prior conviction. Ughbanks z: Armistrong, 208 U. S. 481. 52 L. Ed. 582, 28 S. Ct. 372. Singling out convicts serving life sen- tences in a state prison as proper subjects for the imposition of the death penalty, as is done by Cal. Pen. Code, § 246, in case they shall, with malice aforethought, commit an assault upon the person of an- other with a deadly weapon or instrument, or by any means of force likelj^ to pro- duce great bodily injury, does not deny such life prisoners the equal protection of the laws. Finley z\ California, 222 U. S. 28, 56 L. Ed. 75. 32 S. Ct. 13. 393-4a. Allowing appeal to government, and not to the accused. — United States v. Heinze, 218 U. S. 532. 54 L. Ed. 1139, 31 S. Ct. 98; United States v. Bitty, 208 U. S. 393, 52 L. Ed. 543, 28 S. Ct. 396; Taylor V. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53. Congress could, bv Act March 2, 1907. c. 2564, 34 Stat. ' 1246 CU. S. Comp. St. Supp. 1909, p. 220X, authorize the govern- ment to bring up a criminal case frcJm a federal circuit court to the supreme court when a demurrer to an indictment has been sustained, although the same privi- lege is denied the accused when the in- dictment is sustained, even assuming that the United States is bound to afford the equal protection of the laws to persons within its jurisdiction. United States v. Heinze, 218 U. S. 532, 54 L. Ed. 1139, 31 S. Ct. 98. Constitutional rights of the accused are not violated by Act March 2. 1907, c. 2564, 34 Stat. 1246 (U. S. Comp. St. Supp. 1907, p. 209), authorizing the United States to bring up a criminal case from a circuit court to the supreme court by a direct writ of error where an indictment has been quashed or set aside, or a demurrer to the indictment or any count thereof has been sustained on the ground of the invalidity or construction of the statute upon which the indictment was founded, although such statute does not allow the accused to brmg up the case in the same way when a demurrer to the indictment or some count thereof has been overruled^ Judgment (C. C. 1907), 155 F. 938, re- versed. United States v. Bitty, 208 U. S. 393, 52 L. Ed. 543, 28 S. Ct. 396; Taylor :■. United States. 207 U. S. 120, 52 L. Ed. 130. 28 S. Ct. 53. 393-5. Prescribes no iron rule of equal taxation. — The fourteenth amendment was not intended to compel the state to adopt an iron rule of equal taxation. If that were its proper construction, it would not only supersede all those constitutional provisions and laws of some of the states, whose object is to secure equality of taxation, and which are usuallj' accom- panied with qualifications deemed ma- terial, but it would render nugatory those discriminations which the best interests of societ3^ require; which are necessary for the encouragement of needed and use- ful industries, and the discouragement of intemperance and vice; and which every state, in one form or another, deems it ex- pedient to adopt. Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 237, 33 L. Ed. 892. 10 S. Ct. 533; Southwestern Oil Co. V. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496; Brown-Forman Co. v. Ken- tuckv, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 5"78. 394-7. State may adjust system in all reasonable ways. — "The provision in the fourteenth amendment. that_ no_ state_ shall deny to any person within its jurisdiction 335 394 CONSTITUTIONAL LAW. Vol. IV. d. Permits Classification and Diversity in Taxation. — See note 8. the equal protection of the laws, was not intended to prevent a state from adjusting- its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation, at all, such as churches, li- braries, and the property of charitable in- stitutions. It may impose different specific taxes upon different trades and profes- sions, and may vary the rates of exercise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for in- debtedness, or not allows them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usages, are within the discretion of the state legislature, or the people of the state, framing their constitu- tion. But clear and hostile discrimina- tions against particular persons and classes, especially such as are of an un- usual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition. It would, however, be impracticable and un- wise to attempt to lay down any general rule or definition on the subject, that would include all cases. They must be decided as thev arise." Bell's Gap R. Co. V. Pennsylvania, 134 U. S. 232, 237, 33 L. Ed. 892. 10 S. Ct. 533; Southwestern Oil Co. V. Texas, 217 U. S. 114, 54 L. Ed. 688. 30 S. Ct. 496. Except as restrained by its own con- stitution or by the constitution of the United States, the state of Texas, by its legislature, has full power to prescribe an}' system of taxation which, in its judg- ment, is best or necessary for its people and government; that, so far as the power of the United States is concerned, the state has the right, by any rule it deems proper, to classify persons or businesses for the purposes of taxation, subject to the condition that such classification shall not be in violation of the constitution of the United States; that the requirement by the state, that all wholesale dealers in specified articles shall pay a tax of a given amount on their occupation, without exacting a similar tax on the occupations of wholesale dealers in other articles, can not, on the face of the statute or by rea- son of any facts within the judicial knowl- edge of the court, be held, within the meaning of the fourteenth amendment, to deprive the taxpayer of his property with- out due process of law, or to deny him the equal protection of the laws; and that the federal court can not interfere with the enforcement of the statute simply because it may disapprove its terms, or question the wisdom of its enactment, or because it can not be sure as to the precise rea- sons inducing the state to enact it. South- western Oil Co. V. Texas, 217 U. S. 114, 54 L. Ed. 688. 30 S. Ct. 496. 394-8. Permits classification and diver- sity in taxation. — It is elementary that the constitution of the United States does not, generally speaking, control the power of the states to select and classify subjects of taxation. Moffitt v. Kelly, 218 U. S. 400, 54 L. Ed. 1086, 31 S. Ct. 79. Fundamental to the very existence of the governmental power of the states as is this function of taxation, it is neverthe- less subject to the beneficient restriction that it shall not be so exercised as to deny to any the equal protection of the law. But this restriction does not compel the adoption of "an iron rule of equal taxa- tion," nor prevent variety in methods of taxation, or discretion in the selection of subjects, or classification for purposes of taxation of either properties, businesses, trades, callings, or occupations. This much has been over and over announced by the federal supreme court. Brown- Forman Co. v. Kentucky, 217 U. S. 563, 54 L. Ed. 883. 30 S. Ct. 578; Bell's Gap R. Co. V. Pennsylvania, 134 U. S. 232, 33 L. Ed. 892, 10 S. Ct. 533; Cargill Co. V. Minnesota, 180 U. S. 452, 45 L. Ed. 619, 21 S. Ct. 423; American Sugar Refin. Co. 7'. Louisiana, 179 U. S. 89. 45 L. Ed. 102. 21 S. Ct. 43; Beers v. Glynn, 211 U. S. 477, 53 L. Ed. 290, 29 S. Ct. 186. The fourteenth amendment does not diminish the taxing power of the state, but only requires that, in its exercise, the citizen must be aft'orded an opportunity to be heard on all questions of liability and value, and shall not, by arbitrary and discriminatory provisions, be denied equal protection. It does not deprive the state of the power to select the subjects of taxation. Keeney v. Comptroller, 222 U. S. 525. 56 L. Ed. 299, 32 S. Ct. 105. Discriminating between real and per- sonal property. — The state may tax real estate and personal property in a different manner. Southwestern Oil Co. z'. Texas, 217 U. S. 114. 5 4 L. Ed. fiS8. 30 S. Ct. 496. May classify occupations, trades, pro- fessions, etc. — The state may impose dif- ferent specific taxes upon different trades and professions. Southwestern Oil Co. v. Texas, 217 U. S 114, 54 L. Ed. 688, 30 S. Ct. 496. A very wide discretion must be con- ceded to the legislative power of the state in the classification of trades, callings, liusinesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of 336 Vol. IV. COXSTITUTIOXAL LA]V. 394 difference or policy, there is no denial of the equal protection of the law. South- western Oil Co. V. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496; Brown-Forman Co. V. Kentucky, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578. "It may make discriminations, if founded on distinctions that we can not pronounce unreasonable and purely arbitrary." Quong Wing v. Kirkendall, 223 U. S. 59. 56 L. Ed. 350, 32 S. Ct. 192. Same — May favor certain business, trades, or forms of industry. — "'A state does not deny the equal protection of the laws merely by adjusting its revenue laws and taxing sj'^stem in such a way as to favor certain industries or forms of in- dustry. Like the United States, although with more restriction and in less degree, a state may carry out a policy, even a policy with which we. might disagree." Quong Wing v. Kirkendall. 223 U. S. 59, 56 L. Ed. 350. 32 S. Ct. 192; McLean v. Arkansas, 211 U. S. 539, 547, 53 L. Ed. 315, 29 S. Ct. 206; Armour Packing Co. v. Lacy, 200 U. S. 226, 235, 50 L. Ed. 451, 26 S. Ct. 232; Connolly v. Union Sewer Pipe Co.. 184 U. S. 540, 562. 46 L. Ed. 679, 22 S. Ct. 431. If the state sees fit to encourage steam laundries and discourage hand laundries, that is its own affair. And if, again, it finds a ground of distinction in sex, that is not without precedent. Quong Wing 7'. Kirkendall. 223 U. S. 59. 56 L. Ed. 350, 32 S. Ct. 192. See, also, ante, "Distinc- tions Based upon Sex," VII, B, 3, b^/^. Same — May discriminate between in- dividuals and corporations. — There is such a substantial difference between the carry- ing on of business by corporations and the same business when conducted by a pri- vate firm or individual as would justify, even were the principles of the fourteenth amendment to the federal constitution ap- plicable, the excise imposed by Act Aug. 5. 1909, c. 6. § 38. 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), upon the carrying on or the doing of business in a corporate or quasi corporate capacity. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. SSn. 31 S. Ct. 342. Same — Intoxicating liquors — Distinction between distillers and rectifiers. — The rea- sons for discriminating between distillers and rectifiers is not obscure, and a classifi- cation which includes one and omits the other is by no means arbitrary or unrea- sonable. Brown-Forman Co. v. Ken- tucky, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578. The license or occupation tax imposed upon the business of compounding, recti- fying, adulterating, or blending distilled spirits by Act Ky. March 28. 1906 (Acts 1906, p. 549), is not invalid as denying the equal protection of the laws because no such tax is exacted from either resident or nonresident distillers who neither rec- 12 U S Enc— 22 tify, compound, adulterate, nor blend their products, nor from rectifiers and blenders of other states and countries who vend in the state untaxed rectified or Idended spirits, in direct competition with the spirits of local rectifiers or blenders. Brown-Forman Co. v. Kentucky, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578, affirm- ing judgment, Brown-Forman Co. v. Same (1907), 101 S. W. 321, 125 Ky. 402. Same — Special rule as to distilled spirits in bond. — The distinction made by the taxing statutes of the state of Kentucky between distilled spirits in bond and other property does not constitute a dis- crimination condemned by the fourteenth amendment. The power of the state to classify persons and property in its legis- lation is welL established and the power is not transcended by the statutes under re- view. Thompson v. Kentucky, 209 U. S. 340, 52 L. Ed. 822. 28 S. Ct. 533; Billings V. Illinois, 188 U. S. 97. 47 L. Ed. 400, 23 S. Ct. 272. Same — Making warehouseman primarily liable for the tax. — Neither due process nor the equal protection of the laws is de- nied to the warehouseman by the taxation of distilled spirits in bonded warehouses in the state, provided for by Act Ky. :\Iarch 29, 1902 (Acts 1902, p. 226, c. 102), - under which the warehouseman is made liable to pay the tax, and is given a lien on the property for the amount paid. Judgment (1906), 94 S- W. 654, 29 Ky. Law Rep. 705. affirmed. Thompson v. Kentuck3\ 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533. Same — Special rules to wholesale deal- ers in oils. — Wholesale dealers in oils are not denied the equal protection of the laws by the occupation tax miposed upon such dealers by Gen. Laws Tex. 1905, c. 148, § 9, although no similar tax is exacted from wholesale dealers in other articles of merchandise, such as sugar, bacon, coal and iron. Judgment (1907), 103 S. W. 489, 100 Tex. 647, affirmed. Southwestern Oil Co. V. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. With reference to this case, the_ court says: "In our judgment, the objection that, within the true meaning of the four- teenth amendment, the statute of Texas has the effect to deny to the Oil Company the equal protection of the laws, does not rest upon any solid basis. The statute makes no distinction among such whole- sale dealers as handle the particular ar- ticles specified in § 9. The state had the right to classify such dealers separately from those who sold, by wholesale, other articles than those mentioned in that sec- tion. The statute puts the constituents of each of those separate classes in the same plane of equ3lity. It is not arbitrary leg- islation, except in the sense that all legis- lation is arbitrary. If it be within the power of the legislature to enact the stat- 337 394 CONSTITUTIOXAL LAW. \o\. IV. ute, then arbitrariness can not be pred- icated of it in a court of law. And it can not be held to be beyond legislative power simply because of its classification of occupations. What were the special reasons or motives inducing the state to adopt the classification of which the Oil Company complains, we do not certainly know. Nor is it important that we should certainly know. It may be that the main purpose of the state was to encourage re- tail dealing in the particular articles men- tioned m § 9. If the statute had its origin in such a view, we do not perceive that this court can deny the power of the state to Droceed on that ground." South- western Oil Co. V. Texas, 217 U. S. 114. 54 L. Ed. CSS. 30 S. Ct. 496. Special rule as to bucket shops and deal- ing in futures. — See post, POLICE POWER. Equal protection in the collection of back taxes. — The provisions for the for- feiture of land titles to the state for fail- ure to list and pay taxes thereon for cer- tain specified j^ears. made by Act Ky. March 15, 1906. c. 22, art. 3, do not deny the equal protection of the laws because, in the application of such statute, it can only meet conditions such as are embraced within the law in a part of the counties of the state. Kentucky Union Co. z'. . Kentucky. 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171, affirming judgment (1907). 106 S. W. 260, 127 Ky. 667. and (1908). lO.S S. W. 931, 128 Ky. 610, 111 S. W. 362, 33 Ky. Law Rep. 857. Landowners who did not acquire their title until after the delinquencies had oc- curred can. not claim to have been denied the equal protection of the laws by the application to them of the provisions of Act Ky. March 15, 1906, c. 22, art. 3, for the forfeiture of such lands to the state, because of the failure of the owners to list lands for taxation and pay the taxes thereon for certain specified years. Ken- tucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. Subjecting foreign corporation to spe- cial rule. — To tax foreign corporations for carrying on business, by a different and much more onerous rule than is used in taxing dom.estic corporations for the same privilege, is a denial of the equal protec- tion of the laws, and the plaintiff a person within the state, is in a position to in- voke the protection of the fourteentii amendment, on the other ground that such attempted taxation does violence to the federal constitution. Southern R. Co. t'. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. A foreign railway corporation which has come into the state in compliance with its laws, and has therein acquired prop- erty of a permanent nature, upon which it has paid all state taxes, is a person within the jurisdiction of the state, and is pro- tected by the equal protection of the laws clause of Const. U. S. Amend. 14, against the imposition, under Code Ala. 1907, §§ 2391-2400, of an additional franchise tax for the privilege of doing business within the state, where no such tax is imposed upon domestic corporations carrying on a similar business. Southern R. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. reversing judgment (1909), 49 So. 404; Louisville, etc., R. Co. v. Gaston, 216 U. S. 418, 54 L. Ed. 542, 30 S. Ct. 291. reversing judgment (1909), 49 So. 412. Neither can such tax be sustained upon the ground that the tax upon domestic corporations is for the privilege of being a corporation while the one upon foreign corporations is for the privilege of doing business within the state. It would be a fanciful distinction to say that there is any real dififerenc.e in the burden imposed because the one is taxed for the privilege of a foreign corporation to do business in the state, and the other for the right to be a corporation. The fact is that both corporations do the same business in character and kind, and under the statute in question a foreign corporation may be taxed many thousands of dollars for the privilege of doing, within the state, ex- actly the same business as the domestic corporation is permitted to do by a tax upon its privilege, amounting to only a few hundred dollars. vSouthern R. Co. %■. Greene, 216 U. S. 400, 54 L. Ed. 536. 30 S. Ct. 287. "The corporation plaintiff, under the conditions which we have detailed, is, within the meaning of the fourteenth amendment, a person within the iurisdic- tion of the state of Alabama, and entitled to be protected against any statute of the state which deprives it of the equal pro- tection of the laws." Southern R. Co. -v. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S- Ct. 287. Intervention and legacy taxes — Upon right of surviving wife to take community property. — The nature and character (^f the interest of the surviving wife in the community property for the purpose of taxation is peculiarly a local question to be decided by the state courts! There is therefore no merit in a contention that an inheritance tax upon such interest is il- legal and that the surviving wife is denied equal protection of the laws upon the the- ory that her share in the community propert}' was a vested interest during the life of the husband and could not on the death of the husband be taxed differently from any other property, namel3^ accord- ing to value, without violating the state constitution and creating an inequality repugnant to the constitution of the United States. Moffitt v. Kelly, 218 U. S. 400, 54 L. Ed. 1086. 31 S. Ct. 79. Even although the wife's right in the community property was a vested right 338 Vol. IV COXSTITUTIOXAL LAW. 401-402 e. Docs Xot Forbid Exemptions. — See note 9. f. Limitations upon Pozcers of Adjustment and Classification — (1) Gen- erally. — See note 13. (2) Classification Xot to Be Arbitrary; Hostile Discriminations Forbidden. — See note 14. which could not be impaired by subse- quent legislation, it was nevertheless within the power- of the state, without violating the equal protection, due process, or impairment of obligation clauses of the constitution of the United States, in se- lecting objects of taxation, to select as a subject of taxation, the vesting in com- plete possession and enjoj^ment by wives of their shares in community property, consequent upon the death of their hus- bands, and the resulting cessation of their power to control the same and enjoy the fruits thereof. :\Ioffitt v. Kell3% 218 U. S. 400, 54 L. Ed. 1086, 31 S. Ct. 79. The mere fact that the wife had a pre- existing right to the property, created no exemption from taxation if the selection for taxation would be otherwise legal. Moffitt V. Kelly. 218 U. S. 400, 54 L. Ed. 1086, 31 S. Ct. 79. Same — Distinction where nonresident decedent owns both realty and personalty. — The equal protection of the laws is not denied by the imposition of the inheritance tax provided for by Laws X. Y. 1887, p. 921, c. 713, upon certain bequests^ of per- sonalty by a nonresident decedent owning both real and personal property within the state because, under that statute, the tax could not be collected if the only property belonging to the decedent situated within the state was personalty. Judgment, In re Lord's Estate, 79 N. E. 1110, 186 N. Y. 549, affirmed. Beers v. Glynn, 211 U. S. 477, 53 L. Ed. 290. 29 S. Ct. 186. Same — Tax upon transfer by deed in- tended to take effect at death. — Subject- ing to the tax authorized by Laws X. Y. 1896, c. 908, a transfer of property by deed intended to take effect at the death of the grantor, without taxing transfers intended to take effect upon the death of some per- son other than the grantor, or upon the happening of a certain or contingent event, does not involve such a discrimina- tion as to deny the equal protection of the laws guaranteed by the fourteenth amend- ment to the federal constitution. Keeney V. Comptroller. 222 U. S. 525, 56 L. Ed. 299. 32 S. Ct. 105. The tax measured by the value of the propert3% authorized by Laws X^. Y. 1896, c. 908, when propertj' is transferred by deed intended to take effect upon the death of the grantor, is one in the nature of an excise tax on the transfer, and is not void as denying the equal protection of the laws guaranteed by Const. U. S. Amend. 14, because lacking in the ele- ments of uniformity, and equality re- quired in the assessment of property taxes. Keeney v. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105, affirm- ing judgment (1909), In re Keeney's Es- tate, 87 N. E. 428, 194 X. Y. 281. As to the other discriminatory features which, it is alleged, operate to deny the equal protection of the law, it is sufficient to say that it is now well settled that the state may impose a graduated tax in this class of cases, inheritance taxes. Keeney V. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105; Magoun v. Illinois Trust, etc.. Bank. 170 U. S. 283. 298. 42 L. Ed. 1037. 18 S. Ct. 594. Requiring purchase at tax sale to give notice of intention to foreclose owner's equity of redemption. — The grantee in a tax deed can not claim to have been de- nied the equal protection of the laws by Pub. Laws Mich. 1897, p. 294, Xo. 229, requiring the giving of notice to the origi- nal owners to cut off the right of re- demption, on the theory that, by the pro- ceedings under the tax laws, the state acquired an absolute title, which it con- veyed by the tax deed, and that the stat- ute operated to divest such title and transfer it to another. Rusch v. Duncan Land, etc., Co., 211 U. S. 526, 53 L. Ed. 312. 29 S. Ct. 172. 401-9. Does not forbid exemptions. — The state may. if it chooses, exempt cer- tain classes of property from any taxa- tion at all, such as churches, libraries, and the property of charitable institutions. Southwestern Oil Co. v. Texas, 217 U. S. 114, 54 L. Ed. 688. 30 S. Ct. 496; Beers V. Glynn, 211 U. S.' 477, 53 L. Ed. 290. 29 S. Ct. 186. 402-13. Limitation of powers of adjust- ment and classification. — Fundamental to the very existence of the governmental power of the states as is this function of taxation, it is nevertheless subject to the beneficent restriction that it shall not be so exercised as to deny to any the equal protection of the law. Brown-Forman Co. V. Kentucky, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578: Southwestern Oil Co. V. Texas. 217 U. S. 114. 54 L. Ed. 688, 30 S. Ct. 496. 402-14. Arbitrary and hostile discrimma- tions forbidden. — "Clear and hostile dis- criminations against particular persons and classes, especially such as are of un- usual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition. It\youId, however, be impracticable and unwise to attempt to lay down any general rule or 339 403-404 CONSTITUTIONAL LAW. Vol. IV. (3) State Permitted a Wide Discretion. — See note 18. (4) Statute Not Invalid Because of Mere Inequality of Results. — See notes 19, 24, iy2. Failure to Enforce Law as to Other Taxpayers. — The mere fact that the state authorities have failed or refused to enforce a valid tax law as to certain other taxpayers, and that they have thereby succeeded in escaping their just portion of the burdens of taxation, is not per se proof that there has been a denial of the equal protection of the laws as to those persons who have been compelled to pay the taxes lawfully assessed against them.--*'' definition on the subject that would in- clude all cases. They must be decided as they arise." Southwestern Oil Co. v. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496; Quong Wing v. Kirkendall, 223 U. S. 59, 56 L. Ed. 350, 32 S. Ct. 192. There can be no arbitrary and unreason- able discimination. But when there is a difference, it need not be great or con- spicuous in ord^r to warrant classification. Keeney v. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105. Assessing the franchises and other property of certain corporations at a dif- ferent rate and by different method from that employed for other corporations of the same class for the same year, which results in enormous disparity and dis- crimination, denies the equal protection of the law protected by Const. U. S. Amend. 14, against impairment by a state. Judgment, Chicago Union Traction Co. 7'. State Board of Equalization (C. C. 1902), 114 F. 557; Chicago Consol. Traction Co. V. Same, Id.; South Chicago City Ry. Co. V. Baird, Id.; Chicago Edison Co. v. Ray- mond, Id.; Chicago City Ry. Co. v. Same, Id.; People's Gas Light & Coke Co. v. Same, Id.; Chicago Telephone Co. v. Same, Id., affirmed. Raymond v. Chicago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7; Raymond z'. Chicago Edi- son Co., 207 U. S. 42, 52 L. Ed. 89, 28 S. Ct. 14. 403-18. State permitted a wide discre- tion. — The power of the state in respect to the matter of taxation is very broad, at least, so far as the federal constitution is concerned. It may exempt certain prop- erty from taxation while all other is sub- jected thereto. It may tax one class of property by one method of procedure and another by a different method. Beers 7'. Glynn. 211 U. S. 477, 53 L. Ed. 290, 29 S. Ct. 186; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 238. 33 L. Ed. 892, 10 S- Ct. 533. The state is permitted a very w'de dis- cretion with respect to the classification of business, trades, professions, and oc- cupations for the purpose of taxation. Brown-Forman Co. v. Kentucky, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578. 403-19. Statute not invalid because of mere inequality of results. — It may be laid down as a general rule that mere in- equalitie* or exemptions in the matter of state taxation are not forbidden by the federal constitution. Beers t'. Glynn, 211 U. S. 477, 53 L. Ed. 290, 29 S. Ct. 186. You can not carry a constitution out with mathematical nicety to logical ex- tremes. If you could, we never should have heard of the police power, and this is still more true of taxation, which in most communities is a long way off from a logical and coherent theory. Paddell v. New York, 211 U. S. 446, 450, 53 L. Ed. 275, 29 S. Ct. 139. 404-24. Applies to benefits as well as burdens. — The legality of a tax is not to he. measured by the benefit received by the taxpayer, although equality of bur- dens be the general standard sought to be attained. Protection and taxation are not necessarily correlative obligations, nor precise equality of burden attainable, however desirable. The taxing power is one which inay be interfered with upon grounds of unjustness only when there has been such flagrant abuse as may be remedied by some affirmative principle of constitutional law. Southern Pac. Co. v. Commonwealth, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 404-24a. Failure to enforce law as to other taxpayers. — Illinois Cent. R. Co. f. Kentucky, 218 U. S. 551, 54 L. Ed. 1147, 31 S. Ct. 95. The contention of a railroad company that it has been denied equal protection of the laws because of the fact that other railroad corporations in the state have not been assessed upon the same basis or by the same method, is rot sustained by proof which fails to show any discrimina- tion in the method or basis of assess- ment, as claimed by the company, but which does show that other roads of the state have succeeded in escaping or evad- ing the taxes to which they were justly subject. That some roads have thus suc- ceeded in escaping taxation is no reason that others should go free while other taxpayers of other classes have paid their taxes, especially so when the other roads which have escaped are still liable for their taxes unless barred by the statute of limitations. Illinois Cent. R. Co. v. Ken- tucky, 218 U. S. 551, 54 L. Ed. 1147, 31 S. Ct. 95. 340 Vol. IV. CONSTITUTIONAL LAW. 404 g. Special Assessments — (Ij Generally as to the Pozver of the Legislature to Apportion Public Burdens. — See note 25. (2) Requiring Public Service Companies to Bear Expense Incident to Abo- lition of Crossings, Removal of Tracks, Pipes, etc. — See post, Interstate and Foreign Commerce; Police Power. G. Special, Private and Local Acts; Class Legislation — 2. Special AND Exclusive Franchises, Powers and Privileges — d. Prohibition Con- tained in Organic Act of Territory. — See ante, "Powers of Territorial Govern- ments," VI, D, 2, c, (3), (c), (cc), (bbb), (dddd). Vin. Vested Rights and Retrospective Legislation. A. What Rights Are Vested — I. Title to Public Office and the Emol- uments Thereof. — See, generally, post. Impairment of Obligation of Con- tracts; Public Officers. As to private property in public office lawfully pur- chased in Porto Rico or the Philippines prior to their cession to the United States, see ante, "As to Private, Personal, and Property Rights ; Continuation of Existing Laws," Nl. D, 2. c, (3), (c), (bb), faaa). 404-25. Apportionment of public bur- dens — Powers of legislature. — The four- teenth amendment docs not deprive a state of the power to compel a tov/nship, as one of its political subdivisions, to levy and collect taxes for the purpose of paying: the amount assessed against such town- ship for the public benefits accruing for the construction of a drain. Soliah z\ Heskin, 222 U. S. 522, 56 L. Ed. 294, 32 S. Ct. 10.3; Bauman v. Ross, 167 U. S. 548, 593, 42 L. Ed. 270, 17 S. Ct. 966; County of Mobile v. Kimball, 102 U. S. 691, 704. 26 L. Ed. 238. Taxing districts — Adjustment of bur- dens between abutting and nonabutting property. — The equal protection of the law is not denied to the owner of prop- erty lying directly back of property abutting on a street improvement by a law creating a taxing district of the prop- erty along the line of the iinprovement and extending back therefrom 150 feet and providing that property 50 or more feet distant from the street and within 150 feet therefrom shall be liable if the abutting 50 feet which are primarily liable prove insufficient to pay the cost of the improve- ments. Judgment, 74 N. E. 260. 38 Ind. App. 220, affirmed. Cleveland, etc., R. Co. V. Porter. 210 U. S. 177, 52 L. Ed. 1012, 28 S. Ct. 647. Manner of enforcing special assessment — Destruction between residents and non- residents. — The distinction between resi- dent and nonresident owners of abutting property in Act May 19. 1896. 29 Stat. 125, c. 206, creating a drainage sj^stem for the District of Columbia, in that the coercion of the law as to making connections with a sewer is by criminal punishment in the case of residents, whereas, against non- resident owners, the district does the work in case of their neglect, and as- sesses the cost against the property as a tax, does not invalidate the statute for discrimination, even if congress can not enact discriminating legislation. District of Columbia z: Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560, reversed in 29 App. D. C. 563. The statute under consideration in the case at bar enjoins a duty on both resi- dent and nonresident lot owners; a duty necessary to be followed to preserve the health of the city. There is a difference only in the manner of enforcing it. a dif- ference arising from the different situa- tion of the lot owners, and therefore competent for congress to regard in its legislation. In other words, under the circumstances presented by this record, the distinction between residents and non- residents is a proper basis for classifica- tion. It might not be under other circum- stances. District of Columbia z: Brooke. 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560; Blake v. McClung, 172 U. S. 239, 43 L. Ed. 432. 19 S. Ct. 165; S. C. 176 U. S. 59, 44 L. Ed. 371. 20 S Ct. 307; Sully z: American Nat. Bank, 178 U. S. 289. 44 L. Ed. 1072. 20 S. Ct. 935. _ Same — Notice and hearing. — An owner of property lying directly back of property abutting on a street improvement can not claim to be denied the equal protection of the laws guaranteed by Const. U. S. Amend. 14, on the theory that the hear- ing afforded him does not. as in the case of abutting owners, give him an oppor- tunity to be heard as to the amount of the assessment against his property, where the amount of such assessment is the same as the assessment against the abutting property, and measures the con- tingent liability to which the back-lying property may be subjected if the abutting property, which is made primarily liable. fails to satisfy the assessment. Judgment in 74 N. E. 260. 38 Tnd. App. 226, affirmed. Cleveland, etc.. R. Co. v. Porter. 210 U. S. 177, 52 L. Ed. 1012. 28 S. Ct. 647. 341 417 CONSTITUTIONAL LAIV. \o\. IV 5. Vested Rights under Treaties. — See note 66. 417-66. Embraces only rights of prop- erty — ^Property and citizenship in Indian tribes.— See, also, post, DUE PROCESS OF LAW; INDIANS. There are many cases, Thomas v. Gay, 169 U. S. 264, 271, 42 L. Ed. 740, 18 S. Ct. 340; Lone Wolf v. Hitchcock, 187 U. S. 553, 47 L. Ed. 299, 23 S. Ct. 216, recogniz- ing that the plenary power of congress over the Indian Tribes and tribal prop- erty can not be limited by treaties so as to prevent repeal or amendment by a later statute. The tribes have been re- garded as dependent nations, and treaties with them have been looked upon not as contracts, but as public laws which could lie abrogated at the will of the United States. Choate v. Trapp, 224 U. S. 665, 56 L. Ed. 941, 32 S. Ct. 565; Gleason v. Wood, 224 U. S. 679, 56 L. Ed. 947, 32 S. Ct. 571. But there is a broad distinction between tribal property and private property, and l)etween the power to abrogate a statute or treaty and the authority to destroy rights acquired under such law. Choate v. Tn-ipp, 224 U. S. 665, 56 L. Ed. 941, 32 S. Ct. 565; Gleason v. Wood, 224 U. S. 679. 56 L. Ed. 947, 32 S. Ct. 571; Reichart v. Felps, 6 Wall. 160, 18 L. Ed. 849. For example, where the Indians, as in- dividuals, have acquired vested property rights, or a vested right to an exemption from taxation, under a treaty entered into by their tribe and under the acts of con- gress enacted pursuant thereto, such rights are entitled to the protection of the constitutional guaranties of property the same as those of citizens of the states or of the United States. Choate v. Trapp, 224 U. S. 665, 56 L. Ed. 941, 32 S. Ct. 565. See, also, English v. Richardson, 224 U. S. 680. 56 L. Ed. 949, 32 S. Ct. 571. There have been comparatively few cases which discuss the legislative power over private property held by the Indians. But those few all recognize that he is not excepted from the protection guaranteed by the constitution. His private rights are secured and enforced to the same ex- tent and in the same way as other resi- dents or citizens of the United States. Choate v. Trapp, 224 U. S. 665, 56 L. Ed. 941, 32 S. Ct. 565; Gleason v. Wood, 224 U. S. 679, 56 L. Ed. 947. 32 S. Ct. 571; Matter of Heflf, 197 U. S. 488, 504, 49 L. Ed. 848, 25 S. Ct. 506; Cherokee Nation V. Hitchcock, 187 U. S. 294, 307, 47 L. Ed. 183. 23 S. Ct. 115. Vested rights of members of the Chero- kee tribe living on September 1, 1902, and enrolled under the Act of July 1, 1902, to participate in the allotment and distribu- tion of the remaining tribal lands and funds, were not destroyed, their individual allotments not being affected, by the pro- vision of the Act of April 26, 1906, § 2, as amended by the Act of June 21, 1906, for admitting newly born members of the tribe to the earlier act if born after Sep- tember 1, 1902. Gritts V. Fisher, 224 U. S. 640, 56 L. Ed. 928, 32 S. Ct. 580. The difficulty with the appellant's con- tention is that it treats the Act of 1902 as a contract, when "it is only an act of congress, and can have no greater effect." Cherokee Intermarriage Cases, 203 U. S. 76, 93, 51 L. Ed. 96, 27 S. Ct. 29. It was but an exertion of the administrative con- trol of the government over the tribal property of tribal Indians, and was sub- ject to change by congress at any time before it was carried into effect and while the tribal relations continued. Stephens v. Cherokee Nation, 174 U. S. 445, 488, 43 L. Ed. 1041, 19 S. Ct. 722; Cherokee Nation V. Hitchcock, 187 U. S. 294, 47 L. Ed. 183, 23 S. Ct. 115; Wallace v. Adams, 204 U. S. 415, 423, 51 L. Ed. 547, 27 S. Ct. 363; Gritts V. Fisher, 224 U. S. 640, 56 L. Ed. 928, 32 S. Ct. 580. Where, under the provision of acts- of congress, and after a hearing, the names of relators were duly entered as Creek freedmen by blood on the rolls made and approved by the secretary of the- interior, rights were acquired of which the freed- men could not be deprived without that character of notice and opportunity to be heard essential to due process of law. Turner v. Fisher, 222 U. S. 204, 56 L. Ed. 165, 32 S. Ct. 37; Garfield v. Goldsby, 211 U. S. 249, 53 L. Ed. 168, 29 S. Ct. 62. Notice to the attorney of such freed- men, given a few hours before the hear- ing of a motion to strike names, on the ground that their enrollment had been secured by perjury, was not such notice as afforded due process. Turner v. Fisher, 222 U. S. 204, 56 L. Ed. 165, 32 S. Ct. 37; Roller v. Holly, 176 U. S. 398, 409, 44 L. Ed. 520, 20 S. Ct. 410; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 708. 28 L. Ed. 569, 4 S. Ct. 663; Iowa Cent. R. Co. V. Iowa, 160 U. S. 389, 393, 40 L. Ed. 467, 16 S. Ct. 344; Hovev v. Elliott, 167 U. S. 409, 42 L. Ed. 215, 17 S. Ct. 841. Where, pursuant to the act of congress, the name of an Indian -has been certified by the Dawes commission to the secre- tary of the interior as one found by the commission to be entitled to enrollment for distribution, and such list has been ap- proved by the secretary of the interior and the roll made up and distributed, as required by statute, the land allotted, and a certificate therefor awarded to such en- rolled Indian, as provided by Act, § 23, July 1. 1902, such Indian has acquired a valuable right, and the secretary of the in- terior has no power or authority to strike down without notice and hearing, the 342 \'ol. IV CONSrirUTlOXAL LAW. 417-423 6. Vested Rights in Rule or Policy of Law. — See note 67. 11. Rights under Corporate Charters — a. Generally; Charter a Contract. — See, generally, post, Corporations; Impairment of' Obligation of Con- tracts. b. Charter Rights Subject to Police Pozvers. — See, generally, as to the po- lice powers of the state with respect to charter and contract rights, post, Po- lice Power. Reorganization of Insurance Company. — As to the right of the state to reorganize an association insuring lives upon the co-operative plan into a mutual level premium company, see post. Police Power. 12. Same — Franchises and Privileges. — See note 89. rights thus acquired by striking such a name from the rolls. Such action is with- out due process of law, and mandamus will lie to compel restoration of the name. Garfield v. Goldsby, 211 U. S. 249, 53 L- Ed. 168. 29 S. Ct. 62; Garfield v. Allison, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. As has been affirmed by the federal su- preme court in former decisions there is no place in our constitutional system for the exercise of arbitrary power, and if the secretary of the interior, in striking from the roll Indians found by the Dawes com- mission to be entitled to distribution has exceeded the authority conferred upon him by law, then there is power in the courts to restore the status of the parties aggrieved by such unwarranted action. Garfield v. Goldsby, 211 U. S. 249, 262, 53 L. Ed. 168. 29 S. Ct. 62, citing Garfield v. Allison, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. Same — Property in public oflfice. — As to private property in public ofiice lawfully purchased in Porto Rico or the Philip- pines prior to their cession to t'ne United States, see ante, "As to Private, Personal, and Propertv Rights ; Continuation of Ex- isting Laws'," VI, D, 2, c, (3), (c), (bb). (aaa). 417-67. Vested right in rule or policy of law. — "A person has no property, no vested interest, in any rule of the com- mon law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law can not be taken away without due proc- ess; but the law itself, as a rule of con- duct, may be changed at the will * * * of the legislature, unless prevented by the constitutional limitations. Indeed, the great office of statutes is to remedy de- fects in the common law as they are developed, and to adapt it to the changes of time and circumstances." Second Em- ployers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169; Munn v. Illinois, 94 U. S. 113, 134, 24 L. Ed. 77; Martin v. Pittsburg, etc., R. Co.. 203 U. S. 284, 294, 51 L. Ed. 184, 27 S. Ct. 100; The Lotta- wanna, 21 Wall. 558, 577, 22 L. Ed. 654: Western Union Tel. Co. t'. Commercial Milling Co.. 218 U. S. 406. 417, 54 L. Ed. 1088, 31 S. Ct. 59. Change in rule or policy of law as af- fecting existing contracts. — See. generally, post, IMPAIRMENT OF OBLIGATION OF CONTRACTS; INTERSTATE AND FOREIGN COMMERCE; POLICE POWER; DUE PROCESS OF LAW. As to vested rights under contract for rebates, and power of congress to outlaw and prohibit the carrying out of such agreements, see post, INTERSTATE AND FOREIGN COMMERCE. (Treat whole subject there.) Policy as to trade with foreign coun- tries.— See post, INTERSTATE AND FOREIGN Commerce. Laws respecting rights of action and defenses, including actionable wrongs, re- covery of damages, and defenses thereto. — See post. "Laws Affecting Rights of Action and Defenses," VIII, C, 11. As to statute abolishing the doctrine of fellow servants, see post, FELLOW SERVANTS; INTERSTATE AND FOR- EIGN COMMERCE; POLICE POWER. See, also, ante, "Abolishing the Doctrine of Fellow Servants," VII, B, 3, i; and post, "Defenses," VIII. C, 11. b. As to statutes abolishing the doctrines of comparative and contributory negli- gence, see post, MASTER AND SERV- ANT; POLICE POWER. See, also, ante, "Abolishing the Doctrine of Comparative and Contributory Negligence," VII, B, 3. \V2. 423-89. Franchises are property — Special and exclusive franchises inviolable. — The charter right of a telephone company to use the streets of a city for the purposes necessary in constructing a telephone business, is a franchise, and whether it is called an incorporeal hereditament, an in- terest in landj an easement, a right of way, or hov/ever designated, it is property and a vested right. Louisville v. Cumberland Tel., etc., Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. Citing Detroit v. Detroit, etc., St. R. Co.. 184 U. S. 368, 394, 46 L. Ed. 610, 22 S. Ct. 410; West River Bridge Co. V. Dix, 6 How. 507, 534, 12 L. Ed. 535. The assent of the municipality, when once given, conformably to the charter of 343 428 CONSTITUTIONAL LAW. Vol. IV. 18. Property Rights Jure Maritii. — See note 5. 19. Right to Dispose of Property by Wile; Rights of Heirs, Devisees, ETC. — See notes 6, 7, 11. a telephone company, empowering said company, by and with the consent of the city council, to construct and maintain a telephone system in the city, perfects the company's franchise, which thereby be- comes a vested contract and property rig-ht under legislative grant, and not un- der license from the city. It is not com- petent, therefore, for the city, by ordi- nance, to impair such contract nor revoke the rights conferred. Louisville v. Cum- berland Tel., etc., Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. Where a public utility company, such as a telephone company, operating under a perpetual charter, receives from the leg- islature the grant of a franchise to con- struct and maintain its system and to use the streets of the city, and such grant is not, by its terms, limited and revocable, the grant is in fee. Louisville v. Cumber- land Tel., etc., Co., 224 U. S. 649, 56 L. Ed. 934. 32 S. Ct. 572, quoting Detroit v. De- troit, etc., St. R. Co., 184 U. S. 368, 395, 46 L. Ed. 610, 22 S. Ct. 410. The right to use the city streets for tele- phone purposes, acquired by a telephone company conformably to its charter, by which it was empowered, with and by the consent of the city council, to construct and maintain a telephone system in Louis- ville, Kentucky, was not withdrawn or made subject to municipal revocation by Ky. Const. 1891, §§ 156, 163, 164, 199, or Ky. Stat., §§ 2742, 2783, 2825, conferring upon municipalities the right to grant street franchises, or by Ky. Stat., § 573, enacted under the reserve power, repeal- ing all special corporate privileges, since such repeal relates to exclusive grants, tax exemptions, monopolies, and similar im- munities, and the other provisions are in the_ main prospective, the constitution, while limiting for the future the power to sell street franchises, distinctly protecting the interests of those public-utility com- panies whose charters had been thereto- fore granted conferring such rights, where work had in good faith been begun there- under. Louisville v. Cumberland Tel, etc., Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. ' 572. The right to use the city streets for telephone purposes, acquired under the perpetual charter of a telephone com- pany, empowering it, with and by the consent of the city council, to construct and maintain a telephone system in Louis- ville, Kentuck}', was not revocable by the city at will, and did not expire when, by Ky. Stat., § 2742, Louisville was made a city of the first class, with new and en- larged powers. Louisville v. Cumberland Tel., etc., Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. Franchise or contract rights of street railway under ordinance or charter — As to rates.— See post, IMPAIRMENT OF OBLIGATION OF CONTRACTS; PO- LICE POWER. Same — Disposition of property after cessation of use or expiration of charter, or franchise.— See post, DUE PROCESS OF LAW. '^ 428-5. Rights jure maritii — Community interests — State law. — A husband had no vested rights in the community property acquired prior to the passage of Laws N. M. 1901, c. 62, § 6 (a), of which he would be deprived by applying to such property the provision of that section that neither husband nor wife shall dispose of real es- tate acquired during coverture by oner- ous title unless both join in the execution of the deed. Arnett v. Reade, 220 U. S. 311, 55 L. Ed. 477, 31 S. Ct. 425, reversing judgment Reade v. De Lea (1908) 95 P. 131, 14 N. M. 442. There was some suggestion at the argu- ment that the husband acquired from his marriage rights by contract that could not be impaired, but the court held that there was nothing in that, even if it had appeared, as it did not, that the parties were married in New Mexico, then being domiciled there. Arnett v. Reade, 220 U. S. 311, 55 L. Ed. 477, 31 S. Ct. 425; May- nard v. Hill, 125 U. S. 190, 210, 31 L. Ed. 654, 8 S. Ct. 723; Baker v. Kilgore, 145 U. vS. 487, 491, 36 L. Ed. 786, 12 S. Ct. 943. Right to impose tax upon right of sur- viving wife to take community property, — See ante, "Permits Classification and Diversity in Taxation," VII, B, 5, d. See, also, the titles IMPAIRMENT OF OB- LIGATION OF CONTRACTS; TAXA- TION. 428-6. Right to disprove of property by will, deed taking effect at death — Right to create artificial and technical estates and limitations. — There is no natural right to create artificial and technical estates with limitations over, nor has the remainder- man any more right to succeed to the possession of property under such deeds than legatees and devisees under a will. The privilege of acquiring property by such an instrument is as much dependent upon the law as that of acquiring prop- erty by inheritance, and transfers by deed to take effect at death have fre- quently been classed with death duties, legacy and inheritance taxes. Keeney v. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105. 428-7. Right to take by devise or de- scent. — Whatever title heirs may take 344 Vol. IV. CONSTITUTIONAL LAW. 429-438 21. Interest or Estate in Profession or Occupation. — See post, Po- lice Power. 26. Riparian Rights. — See ante, "Local Municipal Jurisdiction, Sovereignty and Eminent Domain," VI, D, 3, c, (4), (b). See, also, post, DuE Process of Law ; Police Power ; Navigable Waters ; Waters and Watercourses. 27. Vested Rights under Contracts. — See, generally, post. Impairment of Obligation of Contracts ; Police Power. Statutes Regulating Commerce as Affecting Existing Contracts. — As to the power of congress to prescribe, as is done by the employer's liability act of April 22, 1908 (35 Stat, at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322), § 5, that the occupation of benefits under a contract of membership in a railway relief department shall not operate as a bar to the recovery of damages for the injury or death of any employee, and to avoid any agreement to that ef- fect, see post. Interstate and Foreign Commerce. As to the power of con- gress to outlaw and prevent the carrying out of contracts for rebates entered into previous to the enactment of the statute, see post. Interstate and Foreign Com- merce. 28. Citizenship as a Vested Right. — See ante, "Vested Rights under Treaties," VIII, A, 5. As to the power of congress to provide for the impeach- ment of fraudulent judgments awarding certificate of naturalization, see ante, "Statute Amending, Overruling, or Setting Aside Judgment or Decree," VI, D^ 3, d, (3), (b), (bb), (aaa), (eeee) ; "Vested Rights under Judgments and De- crees," VIII, C, 12. See, generally, ante. Citizenship, p. 235. C. What Constitutes Impairment of Vested Rights — 2. Impairment by Legislatwe Construction of Statutes. — See note 41. 8. Retrospective Tax Laws ; Collection of Back Taxes. — See note 56. 11. Laws Affecting Rights of Action and Defenses — a. Rights of Action, — See, generally, post. Due Process of Law; Police Power. See, also, ante,. "Actions for Injuries to Person or Property," VI, D, 3, c, (4), (g). upon the death of their ancestor, they take by virtue of the state law, and it is for the courts of the state to interpret that law and define that title. It is for the courts of the state to say whether the state law has cast upon them such a title to mortgaged property as to re- quire that they should be made parties to a foreclosure procedure against the personal representative and be given notice and opportunity to be heard, and their decision that they acquired no such title or estate will not be reviewed by the federal supreme court. McCaughey v. Lyall. 224 U. S. 558, 56 L. Ed. 883, 32 S. Ct. 602. Construing Cal. Code Civ. Proc, § 1582, to mean that the heirs are not necessary parties to a suit against the administra- trix to foreclose a mortgage executed by the decedent, does not deprive such heirs, without due process of law, of the title which Cal. Civ. Code, § 1384, casts upon them upon the death of their ancestor. McCaughey v. Lyall, 224 U. S. 558, 56 L. Ed. 883, 32 S. Ct. 602. 429-11. Inheritance and legacy taxes. — Property is not taken without due proc- ess of law, contrary to Const. U. S. Amend. 14, by the imposition of the tax authorized by Laws N. Y. 1896, c. 908, when property is transferred by deed in- tended to take effect upon the death of the grantor. Keeney v. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105, affirming judgment (1909) In re Keeney's Estate, 87 N. E. 428, 194 N. Y. 281. See, also, ante, "Permits Classification and Di- versity in Taxation," VII, B, 5, d. 435-41. Impairment by legislative con- struction of statutes. — When several acts of congress are passed, touching the same subject matter, subsequent legislation may be considered as an aid to the inter- pretation of prior legislation upon the same subject. Tiger v. Western Invest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578; Cope v. Cope, 137 U. S. 682, 34 L. Ed. 832, 11 S. Ct. 222; United States v. Freeman, 3 How. 556, 11 L. Ed. 724. 438-56. Collection of back taxes. — Laws of retroactive nature, imposing taxes or providing remedies for their assessment and collection, and not impairing vested rights, are not forbidden by the federal constitution. Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171; League v. Texas, 184 U. S. 156, 46 L. Ed. 478, 22 S. Ct. 475. See,, also, ante, "Permits Classification and Di- versity in Taxation," VJI, B, 5, d. 345 440-446 CONST I TUTIONAL LA IV. Vol. IV. As to the power of territorial legislatures to prescribe what shall consti- tute an actionable wrong and the defenses which may set up in bar thereof, see ante, "Powers of Territorial Governments," VI, D, 2, c, (3), (c), (cc), (bbb), (dddd). As to the power of the legislature to protect property rights from mob violence and to give the owner of property a right of action against the munic- ipality for property destroyed by mobs, see post, Due Process of Law ; Police Power. b. Defenses. — See notes 66, 67. 12. Vested Rights under Judgments and Decrees. — See note 68. 13. Laws Touching Remedies and Procedure — e. Retrospective Statutes of Limitations — (1) Statutes Limiting Time for Bringing Action. — See note 91. 440-66. Vested right in defense to ac- tion.— See post, DUE PROCESS OF LAW; POLICE POWER. See, also, ante, "Actions for Injuries to Person or Property," VI, D, 3, c, (4), (g). As to the power of territorial legisla- tures to prescribe what shall constitute an actionable wrong and the defenses which may be set up in bar thereof, see ante, "Powers of Territorial Govern- ments," VI, D, 2, c, (3), (c), (cc), (bbb), (dddd). Defense of fellow servants. — Act Ark. March 8, 1907, p. 162, abolishing the fel- low-servant rule as to corporations oper- ating railroads within the state is not un- constitutional. Aluminum Co. v. Ramsey, 222 U. S. 251, 56 L. Ed. 185, 32 S. Ct. 76. affirming judgment (1909) 117 S. W. 568, 89 Ark. 522. See, also, ante, "Abolishing the Doctrine of Fellow Servants," VII, B, 3, i. See, also, post, DUE PROCESS OF LAW; INTERSTATE AND FOR- EIGN COMMERCE; POLICE POWER. Doctrines of comparative and contribu- tory negligence. — See ante, "Abolishing the Doctrine of Comparative and Con- tributory Negligence," VII, B, 3, i^. Receipt of benefits from memberships of railway relief department. — As to power of congress to prescribe that the accept- ance of benefits under a contract of mem- bership in a railway relief department shall not operate to bar a recovery of damages for the death or injury of an employee, see post, INTERSTATE AND FOREIGN COMMERCE. 440-67. Technical and inequitable de- fenses. — Defendant was subpoenaed as a witness, and obeyed by going to the fis- cal's where he answered questions put to him without knowing that he had a right to refuse, or being notified that he had such right, and not knowing that "the object of securing his statement was in order to search for proof against him." The affidavit also stated that he was not represented by counsel, and did not know that he had a right to consult a lawyer. Motion was made, presumably based .on the affidavit, for an order to the fiscal to return to the defendant the statement, together with all copies of the same, and that the fiscal be prohibited from using the statement in any manner what- ever. Nothing seems to have been done with that motion, and subsequently it was repeated and denied on the ground "that it was not a proper time to make such motion, as the court could not then decide on the admissibility of proofs which had not yet been offered in the cause." An exception was entered. It was not contended that the statement was afterwards used in any way, but the ac- tion of the court was urged nevertheless as an error "so grave and so material," to use counsel's words, "as to call for a new trial." The argument to support it was based on suppositions of what might have been done, and the potency of the statement in the hands of the prosecuting officer. "It left the defendant open," it was said, "to the fire of a masked bat- tery." Replying to this argument, the court said: "But the law has no measure to apply to such a situation. Defendant was certainly not disabled from telling the truth in other statements if he wished to make them, and to be able not to tell the truth can hardly be urged as legal and to constitutional right. The assign- ment of error, therefore, is not well taken." Pendleton v. United States, 216 U. S. 305, 54 L. Ed. 491, 30 S. Ct. 315. 440-68. Vested rights under judgments and decrees — Judgments procured by fraudulent means — Fraudulent naturaliza- tion certificate. — An alien has no vested right under a certificate of citizenship granted by a decree in an ordinary ex parte naturalization proceeding where such decree was procured by fraud, and it is entirely competent for congress to en- act a law authorizing proceedings for a direct attack upon such decree and can- cellation of the certificate thus obtained. Johannessen v. United States, 225 U. S. 227, 56 L Ed. 1066, 32 S. Ct. 613. See, also, ante, "Statute Amending, Overrul- ing, or Setting Aside Judgment or De- cree," VI, D, 3, d, (3), (b), (fif), (aaa), eeee. 446-91. Retrospective statutes of limita- tion — Limiting time for bringing action. — If the legislature thinks a year is long 346 \'ol. IV CONSTITUTIONAL LAW. 448-449 f. Lazvs Ajfccting the Rules of Evidence. — See notes 97, 2. enough to allow a party to recover his property from a third hand, and estab- lishes that time in cases where he has not been heard of for fourteen years, and pre- sumably dead, it acts within its constitu- tional discretion. Now and then, an extraordinary case may turn up, but con- stitutional law, like mortal contrivances, has to take some chances, and in the great majority of instances, no doubt, justice will be done. Blinn v. Nelson, 222 U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1. See American Land Co. v. Zeiss, 219 U. S. 47, 67, 55 L. Ed. 82, 31 S. Ct. 200. See, also, ante, "Judicial Control of Legislative Dis- cretion," VL D, 3, d, (4), (b), (bb). 448-97. Laws affecting the rules of evi- dence. — As to the general power of the state to prescribe the evidence receivable in the courts and effect thereof, see ante, "State Courts; Their Constitution, Juris- diction and Procedure," VL D, 3, c, (4), (e). 449-2. Prima facie presumptions — Power to create — Rules and Limitations. — ^.Generally speaking, the legislature of each state has the power to prescribe the evidence, which shall be received in the courts of that state, and the effect thereof. Bailey v. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145; Lindsley Z'. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. In the exercise of this power the legis- lature may enact a law providing that proof of one fact, or of several collect- ively, shall be prima facie evidence of the main proposition, provided the infer- ence is not purely arbitrary. There must be a rational relation between the two facts and the defendant or accused must not be deprived of opportunity to rebut such presumption by submitting all the facts bearing upon the issue. Such stat- utes do not violate the requirements of the provision of due process of law, deny the equal protection of the laws, nor de- prive litigants of any contract or vested right. Bailey v. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337. Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, national and state, dealing with such methods of proof in both civil and crimi- nal cases, abound, and the decisions up- holding them are numerous. Mobile, etc., R. Co. V. Turnipseed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136. That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unrea- sonable as to be a purely arbitrary man- date. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. Mobile, etc., R. Co. V. Turnipseed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136. If a legislative provision not unreason- able in itself, prescribing a rule of evi- dence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him. Mobile, etc., R. Co. v. Tur- nipseed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136. Same — Illustrations. — Making the en- gaging in pumping mineral waters from wells bored or drilled into the rock for the purpose of collecting and vending as a separate commodity the carbonic acid gas contained therein prima facie evidence of the common underground source of supply and of injury to other proprietors, as is done by Laws N. Y. 1908, c. 429, forbidding the pumping of the waters under such conditions, does not render the statute invalid, either as infringing the due process or equal pro- tection guaranties of the fourteenth amendment. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337, affirming decree (C. C. 1909) 170 F. 1023. Making the entry upon the official rec- ord of the forfeiture of school land for default in payment of the purchase price prima facie but not conclusive evidence that all the preliminary steps essential to a valid forfeiture were properly taken, and that the forfeiture was duly declared, as is done by Kan. Laws 1907, chap. 373, does not offend against either the con- tract or the due process of law clause of the federal constitution, although con- strued as applicable to pending causes. Reitler v. Harris, 223 U. S. 437, 56 L. Ed. 497, 32 S. Ct. 248. The statute dealt only with a rule of evidence, not with any substantive right. That such a statute does not offend against either the contract clause or the due process of law of the constitution, even where the change is made appli- cable to pending causes, is now settled. Reitler v. Harris, 223 U. S. 437, 56 L. Ed. 497, 32 S. Ct. 248; Pillow V. Roberts, 13 347 449 COXSriTUTIOXAL LAJV. \'ol. IV. IX. Due Process of Law. See post, Due Process of Law. How. 472, 476, 14 L. Ed. 228; Marx :■. Hanthorn, 148 U. S. 172, 181, 37 L. Ed. 410, 13 S. Ct. 508; Turpin v. Lemon, 187 U. S. 51, 59, 47 L. Ed. 70, 23 S. Ct. 20; Linds- ley V. Natural Carbonic Gas Co., 220 U. S. 61, 81, 55 L. Ed. 369, 31 S. Ct. 337; Curtis V. Whitney, 13 Wall. 68, 20 L. Ed. 513. Due process of law is not denied by Code Miss. 1906, § 1985, under which, in actions against railway companies for damages done to persons or property, proof of injury inflicted by the running of the locomotives or cars is made prima facie evidence of negligence. Mobile, etc., R. Co. V. Turnipseed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136, affirming judg- ment Same v. Hicks (1908) 46 So. 360, 91 Miss. 273, 124 Am. St. Rep. 679. The equal protection of the laws is not denied by Code Miss. 1906, § 1985, under which, in actions against railway com- panies for damage done to persons or property, proof of injury inflicted by the running of the locomotives or cars is made prima facie evidence of negligence. Mobile, etc., R. Co. v. Turnipseed. 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136, affirm- ing judgment Same v. Hicks (1908) 46 So. 360, 91 Miss. 273, 124 Am. St. Rep. 679. Due process of law is not denied an abutting owner of property on which dwellings have been erected by the at- tempt, in Act May 19, 1896, 29 Stat. 125, c. 206, creating a drainage system in the District of Columbia, under which she is assessed for the expense of connecting her property with a sewer, to give a con- trolling evidential efifect to the existence of such improvements as dwellings, as indicating the necessity for making such connection. Judgment (1907) 29 App. D. C. 563, reversed. District of Columbia z: Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. Same — Creation of more than mere temporary inference. — A statute of this character does not deny the equal protec- tion of the law or otherwise fail in due process of law, because as construed by the state court it goes beyond the crea- tion of a mere temporary inference of fact and creates a presumption of liabil- ity, where its operation is only to supply an inference of liability in the absence of other evidence contradicting such infer- ence. Mobile, etc., R. Co. v. Turnipseed, 219 U. S. 35, 55 L. Ed. 78, 31 S. Ct. 136. Power to create presumptions not to be used to evade constitutional restric- tions. — In this class of cases where the entire subject matter of the legislation is otherwise within state control, the ques- tion has been whether the prescribed rule of evidence interferes with the guar- anteed equality before the law, or violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law. But where the conduct or fact, the existence of which is made the basis of the statutory presumption, itself falls within the scope of a provision of the federal constitution, a further question arises. It is apparent that a constitu- tional prohibition can not be transgressed indirectly by the creation of a statutory presumption any more than it can be vio- lated by direct enactment. The power to create presumptions is not a means of es- cape from constitutional restrictions. And the state may not in this way inter- fere with matters withdrawn from its authority by the federal constitution, or subject an accused to conviction for con- duct which it is powerless to prescribe. Bailey v. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. For example, a state can not evade the prohibition against slavery and involun- tary servitude contained in the thirteenth amendment and in the federal statutes designed to prohibit and punish the same, by enacting a law making it a crime for any person to enter into a contract to render labor or personal services to an- other and obtain, under such contract, ad- vances in money or personal property with the intent to defraud the party advancing the same, and making the fail- ure to perform such services without refunding the money or property so ad- vanced prima facie evidence of the intent to defraud, the defendant being denied the right, under other laws of the state, to testify as to his motive or intent at the time he entered into the contract and received the money on goods advanced. Bailey v. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. And it is immaterial in such case that the state court of last resort has held, construing the statute, that it does not bind the jury to convict upon the strength of such prima facie presumption created by the statute, and that the jury is at liberty to aquit. even though there be no evidence to rebut the presumption cre- ated by the statute. It was held in such a case that the controlling construction of the statute was the affirmance of the judgment of conviction; that it was not sufficient to declare that the statute did not make it the duty of the jury to con- vict where there was no other evidence but the breach of the contract and the failure to pay the debt; that the point 348 A'ol. IV COXSTITUTIOXAL LAW. 459-475 X. Impairment of the Obligation of Contracts. See post, Impairment of Obligation of Contracts. XI. The Rights of Life, Liberty, Private Property and the Pursuit of Happiness. See notes 40, 47. XIV. Justice without Denial, Purchase or Delay. See, generally, post, Due Process of Law. See, also, ante, "Equal Protection of the Laws ; Class Legislation," VII, et seq. As to statutes which impose pen- alties so severe as to deter persons atTected thereby from resorting to the courts for the purpose of testing their validity, see ante, "Generally," \'II, B, 4, a, (1). See, also, post. Due Process of Law; Interstate and Foreign Commerce. XVII. Political Rights and Privileges and Their Protection. A. Of the General Rights and Privileges Pertaining to Citizenship — 2. Citizenship in the States and the Protection Afforded by Art. 4, § 2, of the United States Constitution — a. Persons Entitled to Invoke the Pro- tection of Art. 4, § 2 — (6) Corporations. — See, generally, post. Corporations; Foreign Corpoil\tions ; Interstate and Foreign Commerce; Removal of Causes. See, also, ante, "Equal Protection of the Laws; Class Legislation," \ II, et seq. c. Privileges and Immunities Secured to Citizen by Art. 4. § 2 — (4) Right to Fish or Fold in Public Waters of Another State. — See note 8. Same — Right of Congress to Regulate Taking and Importation of Sponges. — As to the right of congress to regulate the taking of sponges in ter- ritorial waters of any state, see post, Interstate and Foreign Commerce. (7) The Right to Engage in Trade, Commerce or Lazvful Business. — See note 16. was that, in such a case, the statute au- thorized the jury to convict, and it was not enough to say that the jury were at liberty to refuse to accept that evidence as alone sufficient, since the jury might accept it, and they had the express war- rant of the statute to accept it as a basis for their verdict; that it was in this light tnat the validity of the statute must be determined. Bailey v. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. 459-40. The right to life, liberty and the pursuit of happiness; as including right to pursue lawful business, trade, oc- cupation or orofession. — See post, DUE PROCESS OF LAW: POLICE POWER. 461-47. Aliens — Right to invoke consti- tutional guaranties. — See, generally, ante, ALIENS, p. 18; CITIZENSHIP, p. 235: CIVIL RIGHTS, p. 236; post, DUE PROCESS OF LAW. See, also, ante, '"Generally as to International R'^lations; Determination of Rightful Sovereign or Government," VI, D, 3. d, (3), (c), (cc). 474-8. Right to fish or fowl in public waters of another state. — The principle has long been settled in the federal su- preme court that each state owns the beds of all tide waters within its juris- diction, unless they have been granted away. The Abbey Dodge, 223 U. S- 166, 56 L. Ed. 390, 32 S. Ct. 310; Pollard t: Hagan, 3 How. 212, 11 L. Ed. 565; Smith c'. Maryland, 18 How. 71, 74, 15 L. Ed. 269; Mumford v. Wardwell, 6 Wall. 423, 436, 18 L. Ed. 756; Weber v. Board, 18 Wall. 57, 66, 21 L. Ed. 798. In like manner the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the owner- ship is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997. The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship. The Abbey Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. The rights thus held to exist in the states are "subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate com- merce, has been granted to the United States." The Abbey Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. 475-16. Right to engage in trade, com- merce or lawful business. — To carry on interstate commerce is not a franchise or a privilege granted by the state; it is a right which every citizen of the United 349 478-479 CONSTITUTIONAL LAW. Vol. IV. (10) The Right to Bring Actions; Remove Causes. — As to Transitory Ac- tions Arising Out of State. — Each state may, subject to restrictions of the federal constitution, determine the hmits of the jurisdiction of its courts, the character of the controversies which shall be heard by them, and, specifically, how far it will, having jurisdiction of the parties, entertain in its courts transitory actions, where the cause of action has arisen outside its borders. ^^^ Removal of Causes. — As to the validity of statutes requiring a surrender of the right to remove causes into the federal courts as a condition precedent to the right to do business in the state, and of kindred legislation, see post, Removal, 6f Causes. (12) As to Diverting Waters of Interstate Stream. — Privileges and immunities under art. 4, § 3. are not denied to citizens of other states by a state law which prohibits riparian owners from diverting the waters of a stream of that state into any other state for use therein. ^^^ States is entitled to exercise under the constitution and laws of the United States; and the accession of mere corporate fa- cilities, as a matter of convenience in car- rying on their business, can not have the efifect of depriving them of such right, unless congress should see fit to interpose some contrary regulation on the subject. International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481; International Textbook Co. v. Peterson, 318 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225. See. also, post, INTERSTATE AND FOREIGN COMMERCE. Foreign corporations. — See, generally, post, CORPORATIONS; FOREIGN CORPORATIONS; INTERSTATE AND FOREIGN COMMERCE; RE- MOVAL OF CAUSES. See, also, ante, "Corporations," VII, B, 1, b; post, "The Right to Bring Actions; Remove Causes," XVII, A, 2, c, (10). 478-21a. As to transitory actions aris- ing out of state. — St. Louis, etc., R. Co. V. Taylor, 210 U. S- 281, 285, 52 L. Ed. 1061, 28 S. Ct. 616; Atchison, etc., R. Co. V. Sow^ers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. The privileges and immunities of citi- zens in the several states, secured by Const. U. S., art. 4, § 2, par. 1, to the citizens of each state, are not denied by the provision of an Ohio statute under which, as construed by the highest court of that state, the right of action created by Act Pa. April 15, 1851, p. 674, § 19, in favor of the widow or personal represent- atives of one whose death is caused by negligence, can be maintained in the Ohio courts, only when the deceased was an Ohio citizen. Judgment, Baltimore & O. R. Co. V. Chambers (1905) 76 N. E. 91, 73 Ohio St. 16, afifirmed. Chambers v. Bal- timore, etc., R. Co., 207 U. S. 142, 52 L. Ed. 142, 28 S. Ct. 34. The statute of Ohio provided that "whenever the death of a citizen of this state has been or may be caused by a wrongful act, neglect, or default in an- other state, territory, or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state within the time prescribed for the com- mencement of such action by the statute of such other state, territory, or foreign country." A citizen of Pennsylvania re- ceived injuries from which he died. His widow, also a citizen of Pennsylvania, brought action in Ohio alleging negli- gence. The supreme court held the action could not be maintained because the de- ceased was not a citizen of Ohio. Cham- bers V. Baltimore, etc., R. Co., 207 U. S. 142, 52 L. Ed. 142, 28 S. Ct. 34. Commenting on the case, the court says: "It appears clearly, therefore, that the cause of action which the plaintifif sought to enforce was one created for her bene- fit and vested originally in her. She has not been denied access to the Ohio courts because she is not a citizen of that state, but because the cause of action which she presents is not cognizable in those courts. She would have been - denied hearing of the same cause for the same reason if she had been a citizen of Ohio. In excluding her cause of action from the courts the law of Ohio has not been influenced by her citizenship, which is re- garded as immaterial. We are unable to see that in this case the plaintifif has been refused any right which the constitution of the United States confers upon her, and accordingly the judgment is afifirmed." Chambers v. Baltimore, etc., R. Co., 207 U. S. 142, 52 L. Ed. 142, 28 S. Ct. 34. 479-26a. As to diverting waters of in- terstate stream. — Hudson County Water Co. V. McCarter, 209 U. S. 349, 52 L- Ed. 828, 28 S. Ct. 529. On May 11, 1905, the state of New Jersey, reciting the need of preserving the fresh water of the state for the health and prosperity of the citizens, enacted that "it shall be unlawful for any person or corporation to transport or carry, through pipes, conduits, ditches, or ca- 350 A'ol. IV. COXSTITUTIOXAL LAJJ 479-481 3. Citizenship of the United States — a. Generally. — See ante, Citizen- ship, p. 235. b. Citizenship under the Fourteenth A)nendment and the Privileges and Im- munities of United States Citizenship — (1) Who Are Citizens imder the Four- teenth Amendment. — See, generally, ante, Citize;nship, p. 235. Corporations as Citizens. — See note 27. (2) Of the General Object and Purpose of the Fourteenth Amendment — (a) To Define Citizenship and Confer the Same upon the Negro Race. — See note 28. (c) Police Powers Remain Unrestricted. — See note 33. (d) Protection of Life, Liberty and Property Rests Primarily z^'ith the States. — See note 34. nals, the waters of any fresh water lake, pond, brook, creek, river, or stream of this state into any other state, for use therein." Held, that privileges of citizens of New Jersey are not denied to the citizens of other states by Laws N. J. 1905, p. 461, c. 238, under which a ripa- rian owner may be prevented from divert- ing the waters of a stream of that state into any other state, for use therein. De- cree, McCarter z'. Hudson County Water Co. (1906), 65 A. 489, 70 N. J. Eq. 695, affirmed. Hudson County Water Co. i'. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. 479-27. Corporations not citizens within privileges and immunities clause. — Since a corporation lias no right to exist except by permission of the state, it must con- tent itself with such powers, privileges, and immunities as the state may see fit to bestow upon it. Not being entitled to all the privileges and immunities of an individual, the corporation may be re- stricted in ways in which an individual could not be. Berea College v. Common- wealth, 211 U. S. 4^. 53 L. Ed. 81, 29 S. Ct. 33. See, also, ante. CITIZENSHIP, p. 235; post, CORPORATIONS; FOR- EIGN CORPORATIONS. Thus, the Kentucky Act of 1904, ch. 85, forbidding the teaching of white and ne- gro children in the same school, was up- held as against a corporation, although it was admitted that the same provisions might be invalid if applied to individuals. Berea College v. Commonwealth, 211 U. S. 45. 53 L. Ed. 81. 29 S. Ct. 33. 480-28. General object and purpose — Citizenship of the United States. — The fourteenth amendment, it is observed by Mr. Justice Miller, delivering the opinion of the court, removed the doubt whether there could be a citizenship of the United States independent of citizenship of the state, by recognizing or creating and de- fining the former. "It is quite clear, then," he proceeds to say, "that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual." Twining v. New Jer- sey, 211 U. S. 78, 94, 53 L. Ed. 97, 29 S. Ct. 14. 481-33. Police powers remain unre- stricted. — See. generally, post, POLICE POWER. The privileges and immunities of fed- eral citizenship have never been held to prevent governmental authority from placing such restraints upon the conduct or property of citizens as is necessary for the general good. The privileges and immunities of citizenship were said in the Slaughter-House Cases, 16 Wall. 36, 76, 21 L. Ed. 394, 408, to comprehend: "Pro- tection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may pre- scribe for the general good of the whole.'' Tiger v. Western Invest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. Regulation of business, trade, occupa- tion, profession, etc. — Privileges and im- munities of citizens of the United States are not abridged, contrary to U. S. Const. Amend. 14, by a state statute under which, as construed by the state courts, a telegraph company can not limit its liability for its negligent failure to de- liver a telegram addressed to a person in another state. Western L'nion Tel. Co. z'. Commercial Milling Co., 218 U. S. 406, 54 L. Ed. 1088, 31 S. Ct. 59, affirming Com- mercial Milling Co. v. Western Union Tel. Co. 151 Mich. 425, 115 N. E. 698. See, also, post, POLICE POWER. 481-34. Protection of life, liberty and property rests primarily with the states. — There can be no doubt, so far as the decision in the Slaughter-House Cases has determined the question, that the civil rights sometimes described as fun- damental and inalienable, which before the war amendments were enjoyed by state citizenship and protected by state government, were left untouched by this clause of the fourteenth amendment. Twining z: New Tersey, 211 U. S. 78. 96, 53 L. Ed. 97, 29 S. Ct. 14. 351 481-484 CONSTITUTIONAL LAW. Vol. IV. (e) Provides Additional Security against State Infringement; hut against State Infringement Only. — See note 37. (f) Privileges and Immunities Clause Protects Only the Privileges and Im- munities Pertaining to Citizenship of the United States. — Distinction between State and Federal Citizenship. — See note 38. (3) Privileges and Immunities of United States Citizenship — (a) Privileges and Immunities Defined. — Privileges and immunities of citizens of the United States, are only such as arise out of the nature and essential character of the national government, or are specifically granted or secured to all citizens or persons by the constitution of the United States.'*^^ As Including Right to Acquire and Possess Property, Pursue and Ob- tain Happiness. — The privileges and immunities of citizenship were said, in the Slaughter-House Cases, 16 Wall. 36, 76, 21 L. Ed. 394, to comprehend "Protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, never- theless, to such restraints as the government may prescribe for the general good of the whole."^^'' (b) Rights Protected by the First Ten Amendments. — See note 46. 481-37. Protects against state infringe- ment only. — The fourteenth and fifteenth amendments are restraints upon state ac- tion solely, and not upon the actions of individuals. United States v. Powell, 212 U. S. 564, 53 L. Ed. 653. See, also, ante, "Refers to Infringement by States; Not by Individuals," VII, B, 2, c. 482-38. A distinction between state and federal citizenship. — "It is quite clear then * * * that there is a citizenship of the United States and a citizenship of a state, which are distinct froin each other, and which depend upon different character- istics or circumstances in the individual." Twining v. New Jersey, 211 U. S. 78, 94, 53 L. Ed. 97, 29 S. Ct. 14, quoting lan- guage of Mr. Justice Miller in Slaughter- House Cases. 16 Wall. 36, 21 L. Ed. 394. 484-45a. Privileges and immunities of federal citizenship defined. — Twining z'. New Jersey, 211 U. S. 78, 97, 53 L. Ed. 97, 29 S. Ct. 14; Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394; In re Kemm- ler, 136 U. S. 436, 448, 34 L. Ed. 519, 10 S. Ct. 930; Duncan v. Missouri, 152 U. S. 377, 382, 38 L. Ed. 485, 14 S. Ct. 570. 484-45b. As including right to acquire and possess property, pursue and obtain happiness, etc. — Tiger r. Western Invest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. Same — Restraint upon conduct and property — Restraints upon incompetent persons. — The privileges and immunities of federal citizenship have never been held to prevent governmental authority from placing such restraints upon the conduct or property of citizens as is nec- essary for the general good. Incompe- tent persons, though citizens, may not have the full right to control their per- sons and property. Tiger v. Western Invest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. Same — Restraints upon Indians who have been made citizens. — The rights of the Creek Indians in the Indian territory who were made citizens of the United States by the Act of March 3, 1901 (31 Stat, at L. 1447, chap. 868), with all of the rights, privileges, and immunities of such citizens, were not unconstitutionally im- paired by the Act of April 26, 1906, § 22, extending the prohibition against the al- ienation of allotted lands by the allottee or his heirs without the approval of the secretary of the interior, created by the supplemental Creek agreement of June 30, 1902, beyond the five year limitation therein expressed. Tiger v. Western In- vest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. 484-46. Rights protected by the first ten amendments. — The fourteenth amend- ment did not forbid the states to abridge the personal rights enumerated in the first eight Amendments, because those rights were not within the meaning of the clause "privileges and immunities of citi- zens of the United States." Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. Same — Exemption from compulsory self-incrimination. — Exemption from self- incrimination, though secured as against federal action by Const. U. S. Amend. 5, is not one of the fundamental rights of national citizenship, so as to be included among the privileges and immunities of citizens of the United States which the states are forbidden by the fourteenth amendment to abridge. Judgment, State of New Jersey v. Twining (1906) 64 A. 1073, 73 N. J. Law, 683, affirmed. Twin- ing V. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. Upon this point, the court says: "If then it be assumed, without deciding the point, that an exemption from compul- 352 Vol. IV. CONSTITUTIONAL LAW. 486-487 (i) Access to All the Courts; Removal of Causes. — In all the cases in the su- preme court, discussing the right of the states to exclude foreign corporations, and to prevent them from removing cases to the federal courts, it has been con- ceded that while the right to do local business within the state may have been derived from the federal constitution, the right to resort to the federal courts is a creation of the constitution of the United States and the statutes passed in pursuance thereof, and can not be taken away by state enactments. ^^'^ (n) Right to Pursue Ordinary Trade or Calling. — See, generally, post, Po- i^ice; Power. Police Regulation of Trade, Occupation or Business. — See, generally, post. Police Power. See, also, ante, "Regulation of Business, Trade. Occupa- tion or Profession," VII, B, 3, et seq. ; "Privileges and Immunities Defined," XVII, A, 3, b, (3), (a); "Police Powers Remain Unrestricted," XVII, A, 3, b, (2), (c). (o) Equal Protection of the Laws; Equal Taxation, etc. — See, generally, ante, Civie Rights, p. 236 ; post, Taxation. See, also, ante, "Equal Protec- tion of the Laws; Class Legislation," VII, et seq. Discriminating against Nonresidents in Character of Process Served. — See note 65a. Abolishing Doctrines of Fellow Servants, Comparative Negligence, Contributory Negligence, etc. — See ante, "Abolishing the Doctrine of Fel- low Servants," VII, B, 3, i; "x\bolishing the Doctrine of Comparative and Con- tributory Negligence," VII, B, 3, i ^. See, also, post, Feelow Servants; Master and Servant ; Poeice Power. sory self-incrimination is what is de- scribed as a fundamental right belonging to all who live under a free government, and incapable of impairment by legisla- tion or judicial decision, it is so far as the states are concerned, a fundamental right inherent in state citizenship, and is a privilege or immunity of that citizen- ship only." Twining v. New Jersey, 211 U. S. 78, 97, 53 L. Ed. 97, 29 S. Ct. 14. 486-55a. Access to all the courts — Re- moval of causes. — See, also, post, RE- MOVAL OF CAUSES. Herndon v. Chi- cago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633. Under the Missouri Act of March 7, 1907, a domestic railway company might bring an action in the federal court, or, in a proper case, remove one thereto, without being subject to forfeiture of its right to do business, or the imposition of the penalties provided for in the act; but, as to foreign railway companies, the statute provided that in case they should bring a suit in the federal courts, or re- move it from the state courts to the federal courts, their right to do business in the state should be forfeited and that they should be subject to the penalties pre- scribed in the act. Held, that as to a foreign corporation which had come within the state and complied with its laws, and which had acquired, under the sanction of the state, a large amount of property within its borders, and which 12 U S Enc— 23 353 had thus become a person within the state, within the meaning of the consti- tution and entitled to its protection, the statute was unconstitutional as denying the equal protection of the laws. Hern- don V. Chicago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633; Roach V. Atchinson, etc., R. Co., 218 U. S. 159, 54 L. Ed. 978, 30 S. Ct. 639; see, also, West- ern Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Pull- man Co. V. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232; Ludwig v. West- ern Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280; Southern R. Co. V. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. 487-65a. Discriminating against non- residents in character of process served. — Nonresident owners of lands within the levee district created by Act Ark. Feb. 15, 1893, p. 31, are not denied the privileges and immunities of citizens of the United States because section 11 of that act, as amended in Act Ark. April 2, 1895, p. 88, § 1, while requiring personal service of summons on resident owners or occupants for at least 20 days before rendering a decree of sale for unpaid levee taxes, provides for constructive service by publication upon nonresident owners of only 4 weeks. Decree (1905) 85 S. W. 252, 74 Ark. 174, affirmed. Bal- lard V. Hunter, 204 U. S. 241, 51 L. Ed. 461, 27 S. Ct. 261. 487-496 CONSTITUTIONAL LAW. Vol. IV. In Criminal Procedure — Mode of Trying Issue of Former Conviction. — See note 65b. XVIII. Protection to Persons Accused of Crime. A. Persons Protected — 2. Re;side:nts in the: Territories. — Philippine. Bill of Rights.— By act of congress of July 1, 1902 (32 Stat, at L. 691, chap. 1369) congress undertook to enact for the inhabitants of the Philippine Islands a bill of rights, the provisions of which are taken, substantially, from the bill of rights of the federal constitution.^^'' D. Requirement as to Presentment or Indictment in Capital and In- famous Cases — 1. General Nature and Purpose of Requirement. — See note 90. 2. Not a Restriction upon the States. — See note 91. 4. Persons Protected^ — c. Reddents ivithin the Territories. — The require- ment of the fifth amendment to the federal constitution that infamous crimes must be presented by indictment, has no application to the Philippine' Islands, nor is there any such requirement in the Philippine Act of July 1, 1902. ^^^ E. Right to Be Informed of Nature and Cause of Accusation — 1. Sixth Amendment Not a Limitation upon State Power. — See note 7. F. Right to Confront Accusers and Witnesses — 1. Provision Not Ap- plicable TO Trials in State Courts. — See note 20. 2. General Object and Purpose oe the Constitutional Guaranty. — ► See note 21. 487-65b. In criminal procedure — Mode of trying issue of former conviction. — None of the privileges or immunities of a former convict as a citizen of the United States are abridged by bringing him, after conviction, before the court of another county in a separate proceed- ing instituted conformably to W. Va. Code, chap. 165, §§ 1-5, by information charging him with prior convictions which were not alleged in the indictment on which he was last tried and convicted, and, on the finding of the jury that he was the former convict, sentencing him to the additional punishment which chap. 152, §§ 23, 24, in such cases prescribes. Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583. 490-81a. Residents in the territory — Philippine bill of rights. — Dowdell v. United States. 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590; Kepner v. United States, 195 U. S. 100, 49 L. Ed. 114, 24 S. Ct. 797. Requirement as to presentment by in- dictment. — See post, "Residents within the Territories," XVIII, D, 4, c. 492-90. Requirement as to presentment or indictment — Names of witnesses be- fore grand jury. — Neither the Sixth Amendment to the federal constitution, nor U. S. Rev. Stats., § 829, U. S. Comp. Stats., 1901, p. 636, accords to the ac- cused the right to be apprised of the names of the witnesses who appeared be- fore the grand jury. Wilson t'. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. 492-91. Not a restriction upon the states.— Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40; Ughbanks V. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. 492-93a. Residents within the territo- ries. — Dowdell V. United States, 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590. 495-7. Not a limitation upon the pow- ers of the states. — Ughbanks v. Arm- strong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372, and cases cited. 496-20. Right to confront accusers and witnesses — Provision not applicable to state courts. — Ughbanks v. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. 496-21. General object and purpose of guaranty — Tn Philippine Bill of Rights. — Section 5 of the Act of Congress of July 1, 1902 (32 Stat, at L. 691, chap. 1369), embodying the so-called Philippine bill of rights provides: "That in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel, * * * to have a speedy and public trial, to meet the witnesses face to face, etc." This is substantially the provision of the 6th amendment of the constitution of the United States, which provides that the accused shall enjoy the right to a speedy and public trial, and to be con- fronted with the witnesses against him. This provision of the statute intends to secure the accused in the right to be tried, so far as facts provable by wit- nesses are concerned, by only such wit- nesses as meet him face to face at the trial, who give their testimony in his 354 Vol. IV. CONSTITUTIONAL LAW. 497-500 4. Exceptions and Limitations to Constitutionai. Guaranty — a. Gen- erally. — See note 26. c. Specific Exceptions and Limitations — (6) Names of Witnesses Appearing before Grand Jury. — Neither the sixth amendment to the federal constitution, nor U. S. Rev. Stat., § 829, U. S. Comp. Stat. 1901, p. 636, accords the right to the accused to be apprised of the names of the witnesses who appeared before the grand jury.^^"^ (7) Upon Suggestion of Diniinution of Record. — The right of confrontation is not denied to the accused in a criminal case by the amendment of the record in the appellate court by ordering the judge and the clerk of the court below to supply omitted parts upon a suggestion of diminution made in the appellate court.39'' (8) Waiver of Consent. — The right of confrontation secured by the Philip- pine Civil Government Act is in the nature of a privilege extended to the ac- cused, rather than a restriction upon him, and he is free to assert it or waive it, as to him may seem advantageous.^^^ G. Right to Speedy Trial — 2. Under the Constitution — c. Implies the Right to a Trial Itself. — Rights of Aliens. — See, generally, ante. Aliens, p. 18. See, also, ante, "Generally as to International Relations ; Determination of Rightful Sovereign or Government," VI, D, 3, d, (3), (c), (cc). presence, and give to the accused an op- portunity of cross-examination. It was intended to prevent the conviction of the accused upon depositions or ex parte af- fidavits, and particularly to preserve the right of the accused to test the recollec- tion of the witness in the exercise of the right of cross-examination. Dowdell v. United States, 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590; Mattox v. United States, 156 U. S. 237, 242, 39 L. Ed. 409, 15 S. Ct. 337; Kirby v. United States, 174 U. S. 47, 55, 43 L. Ed. 890, 19 S. Ct. 575; 2 Wigmore, Ev., §§ 1396, 1397. 497-26. Exceptions and limitations — Generally. — But this general rule of law embodied in the constitution, and carried by statute to the Philippines, and in- tended to secure the right of the accused to meet the witnesses face to face, and to thus sift the testimony produced against him, has always had certain well-recog- nized exceptions. Dowdell v. United States, 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590. 500-39a. Names of witnesses appearing before grand jury. — Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. 500-39b. Upon suggestion of diminution of the record. — Dowdell v. United States, 221 U. S. 325, 55 L- Ed. 753, 31 S. Ct. 590. The rights of the accused, under the Philippine Islands Bill of Rights of July 1, 1902 (Act July 1, 1902, c. 1369, § 10), 32 Stat. 695, to meet the witnesses face to face, was not infringed by the action of the supreme court of the Philippine Is- lands, upon suggestion of diminution of the record, in ordering the judge and clerk of the court below to supply the fail- ure of the record to show whether the ac- cused pleaded to the complaint, and were present in court during the entire trial. Dowdell V. United States, 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590. 500-39C. Waiver of consent. — Diaz v. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. Where accused offers record of previous trial in evidence, same admissible gener- ally. — The right "to meet the witnesses face to face," secured to one accused of crime in the Philippine Islands by the Act of July 1, 1902, § 5, was not infringed by resting a judgment of conviction for homi- cide in part upon the testimony produced before the justice of the peace at a pre- vious trial for the assault and battery from which the death afterwards ensued, and at a preliminary investigation of the homicide charges, where the record of these proceedings were offered in evidence by the accused without qualification or restriction, and included some testimony favorable to him. Diaz v. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. In these circumstances the testimony was rightly treated as admitted generally, as applicable to any issue which it tended to prove, and as equally available to the government and the accused. Diaz v. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. True, the testimony could not have been admitted without the consent of the ac- cused, first, because it was within the rule against hearsay, and second, because the accused was entitled to meet the witnesses face to face. But it was not admitted without his con.sent, but at his request, for it was he who offered it in evidence. Diaz V. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250. 355 504-505 CONSTITUTIONAL LAW. Vol. IV. I. Assistance of Counsel. — Right to Be Heard in Person and by Coun- sel as Requiring Person of Accused at Trial. — See post, Criminal Law. L. Self-incrimination — 2. Provision in thu Fifth Ame^ndmient Not Ap- plicable: TO THE States. — Not a Privilege or Immunity Protected by the Fourteenth Amendment. — Exemption from self-incrimination, though se- cured as against federal action by U. S. Const., fifth amendment, is not one of the fundamental rights of national citizenship, so as to be included among the privileges and immunities of citizens of the United States which the states are forbidden by the fourteenth amendment to abridge. ^"^^ 3. Who May Invoke Benefit op This Provision — a. Witness Need Not Be a Party Defendant. — Not Necessary That Prosecution Should Have Been Instituted. — The privilege against self-incrimination holds that although the pursuit of the person required to produce the incriminating books or docu- ments has not yet begun, it is the incriminating tendency of the disclosure, and not pendency of a prosecution against the witness, upon which the right de- pends.^" "^ b. Distinction hetzveen Natural Persons and Corporations. — A private cor- poration can not resist production of its books and papers upon the ground of self-incrimination. Although the object of the inquiry may be to detect the abuses it has committed, to discover its violations of law, and to inflict punish- ment by forfeiture of franchises or otherwise, it must submit its books and papers to duly constituted authority when demand is suitably made. This is involved in the reservation of the visitorial power of the state, and in the au- thority of the national government where the corporate activities are in the do- main subject to the powers of congress. ^^^ 504-66a. Not applicable to the state — Not a privilege or immunity protected by the fourteenth amendment. — Twining z'. New Jersey, 211 U. S. 78, 53 L. Ed. 07, 29 S. Ct. 14. 504-67a. Not necessary that prosecution should have been instituted. — Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538; Counselman v. Hitclicock, 142 U. S. 547, 35 L. Ed. 1110, 12 S. Ct. 195. 505-68a. Distinction between natural persons and corporations. — Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538; Hale v. Henkel, 201 U. S. 43, 50 L. Ed. 652, 26 S. Ct. 370; Bal- timore, etc., R. Co. V. Interstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621; Hammond Packing Co. v. Arkan- sas, 212 U. S. 322, 349, 53 L. Ed. 530, 29 S. Ct. 370. A corporation is not entitled, under the fourth and fifth amendments of the consti- tution of the United States, to object to the admission in evidence of entries from its books. As to this, it is only necessary to refer to the recent decisions of the su- preme court. American Lithographic Co. V. Werckmeister, 221 U. S. 603, 55 L- Ed. 873, 31 S. Ct. 676; Hale v. Henkel. 201 U. S. 43, 50 L. Ed. 652, 26 S. Ct. 370; Nelson V. United States, 201 U. S. 92, 50 L. Ed. 673, 26 S. Ct. 358; Hammond Packing Co. V. Arkansas, 212 U. S. 322, 349, 53 L. Ed. 530, 29 S. Ct. 370; Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771. 31 S. Ct. 538. In view of the visitorial powers of a state over corporations doing business within its borders and the right of the state to know whether the business of a corpo- ration was being carried on in a lawful manner, it is competent for the state to compel the production of the books and papers of the corporation in an investiga- tion to ascertain whether the laws of the state have been complied with. And of course such power embraces the author- ity to require the giving of testimony by the officers, agents and other employees of the corporation for like and analogous purposes. Hammond Packing Co. v. Ar- kansas, 212 U. S. 322, 348, 53 L. Ed. 530, 29 S. Ct. 370; Consolidated Rendering Co. V. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. Where books never within the states. — The rule is not different because the books of the foreign company, which were called for, may not have been at any time kept within the state. Hammond Packing Co. V. Arkansas, 212 U. S. 322, 348, 53 L. Ed. 530, 29 S. Ct. 370. Due process — Proof relevant to defense against claim asserted by state. — There is no merit in the contention that the order to produce was wanting in due process be- cause it v/as made in a pending suit and sought to elicit proof not only as to the liability of the company, but also the proof in the possession of the company relevant to its defense to the claim which the state asserted. As these subjects were within the scope of the visitorial power, of the 356 Vol. IV. CONSTITUTIONAL LAW. 505 Unreasonable Searches and Seizures. ZURES. -See post, Searches and Sei- hy2. As Dependent upon Capacity in Which Books Are Held; Right of Cor- porate Officers to Refuse to Produce Corporate Books. — The physical custody of incriminating documents does not of itself protect the custodian against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held. It may appear that they are of a character which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim of priv- ilege. ^^^ The fundamental ground of decision in this class of cases is that where, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend state and concerning which it had the right to be fully informed, the mere inci- dent or purpose for which the lawful power was exerted affords no ground to deny its existence. Hammond Packing Co. V. Arkansas, 212 U. S. 322, 348, 53 L. Ed. 530, 29 S. Ct. 370. In Consolidated Rendering Co. v. Ver- mont, 207 U. S. 541, 556, 52 L. Ed. 327, 28 S. Ct. 178, the books and papers were required for an investigation before a grand jury concerning supposed misconduct of the corporation. The power to compel the production to ascertain whether wrong had been done, in the nature of things, as the greater includes the less, is decisive as to the right to exact the production for tbe purpose of proof in a pending cause. See Hale V. Henkel, 201 U. S. 43, 50 L. Ed. 652, 26 S. Ct. 370. H, as was in that case decided, the power of visitation could be exercised, even although it might lead to the production of incriminating evidence merely because the order to produce in this case called for evidence in the posses- sion of the corporation relevant to its de- fense did not afifect the validity of the or- der. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 348. 53 L. Ed. 530, 29 S. Cr. 370. Under subpoena duces tecum. — A corpo- lation can not object, on the ground of a constitutional protection against self-crim- ination, to the admissibility in evidence against it, in an action to recover a stat- utory penalty, of the entries in the cor- porate books, produced by a corporate officer in obedience to a subpoena duces tecum. American Lithographic Co. v. Werckmeister, 221 U. S. 603, 55 L- Ed. 873, 31 S. Ct. 676, affirming judgn.'ent (1908^ 165 F. 426, 91 C. C. A. 376. Same — Before grand jury. — A corpora- tion can not resist, upon the ground of the constitutional protection against self- crimination, the compulsory production oi its books and papers before the grand jury under a subpoena duces tecum. Wil- son V. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. Same — Same, where injury not directed against corporation. — Xor is it an answer to say that in the present case the inquiry before the grand jury was not directed against the corporation itself. The appel- lant had no greater right to withhold the books by reason of the fact that the cor- poration was not charged with criminal abuses. Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. Verified reports by interstate carriers under act prescribing hours of labor Carriers subject to the Act of March 4, 1907, regulating hours of labor of employ- ees, can not claim a privilege against self- crimination to justify the refusal to com- ply with an order of the interstate commerce commission, requiring the sec- retary or similar officer to make monthly reports under oath, showing instances where employees subject to the act have rendered excess service, and giving the cause and explanatory facts, if any, or where there has been no excess service, to m.ake a separate oath to that effect, in lit'U of the form to be used in detailing ex- cess service. Baltimore, etc., R. Co. v. In- terstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621. Where corporation is in contempt. — The objection that incriminating books and papers were required to be produced be- fore a grand jury under Vermont Act of October 9, 1906, without extending immu- nity from criminal prosecution, is not avail- able to a corporation which has been fined for contempt in failing and absolutely re- fusing to produce any of the books and papers called for, with some unimportant exceptions, and has thus prevented the court from inquiring into the validity ol the objection. Consolidated Rendering Co. V. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. 505-69a. As dependent upon capacity in which books are held. — Wilson v. United States. 221 U. S. 361, 55 L. Ed. 771. 31 S. Ct. 538. 357 505 CONSTITUTIONAL LAW. Vol. IV. to incriminate him. In assuming their custody he has accepted the incident obli- gation to permit inspection. '^^'' Right of Corporate Officers to Refuse to Produce Books and Papers. — An ofificer of a corporation can not, upon the ground that it may tend to in- criminate him, assert a personal right to retain the corporate books and papers against any demand of government which the corporation is bound to recognize; and it is immaterial, in such case, that he wrote or signed the entries or letters which he is called upon to produce.^'^*^ • 505-69b. Same. — Wilson v. United States, 221 U. S. ?,C,\. 53 L. Ed. 771, 31 S. Ct. 538. 505-69C. Right of corporate officers to refuse to produce books and papers. — Wil- son V. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538; Dreier v. United States, 221 U. S. 394, 55 L. Ed. 784, 31 S. Ct. 550. A corporate officer can not urge his con- stitutional privilege against self-crimina- tion to excuse his refusal to produce the corporate records in his custody before the grand jury under a subpoena duces te- cum directed to him, because their con- tents may tend to incriminate him. Dreier z\ United States, 221 U. S. 394, 55 L. Ed. 784, 31 S. Ct. 550. By virtue of the fact that they were the documents of the corporation in his cus- tody, and not his private papers, he was under obligation to produce them when called for by proper process. Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. In that case the writ was directed to the corporation, and here it was addressed to the custodian. As he had no privilege with respect to the cor- porate books and papers, it was his duty to obey. Dreier v. United States, 221 U. S. 394, 55 L. Ed. 784, 31 S. Ct. 550. The privilege against self-crimination afiforded by U. S. Const., 5th Amend., does not protect the officer of a corporation in resisting the compulsory production be- fore the grand jury under a subpoena duces tecum directed to the corporation, of the letter press copy books of such corporation in his possession, because the contents thereof may tend to incriminate him, even though the inquiry before the grand jury was not directed to the corpo- ration itself. Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. The mere fact that the appellant him- self wrote, or signed, the official letters copied into the corporate books, neither conditioned nor enlarged his privilege. Wilson V. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. He could assert no personal right to re- tain the corporate books against any de- mand of government which the corpora- tion was bound to recognize. Wilson ir. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. The appellant held the corporate books subject to the corporate duty. If the cor- poration were guiltj' of misconduct, he could not withhold its books to save it; and if he were implicated in the violations of law, he could not withhold the books to protect himself from the effect of their disclosures. The reserved power of the visitation would seriously be embarrassed, if not wholly defeated in its effective exer- cise, if guilty officers could refuse inspec- tion of the records and papers of the cor- poration. No personal privilege to which they are entitled requires such a conclu- sion. It would not be a recognition, but an unjustifiable extention, of the personal rights they enjoy. They may decline to utter upon the witness stand a single self- incriminating word. They may demand that any accusation against them individually be established without the aid of their oral testimony or the compulsory production by them of their private papers. But the visitorial power which exists with respect to the corporation of necessity reaches fhe corporate books, without regard to the conduct of the custodian. Wilson v. United States, 221 U. S. 361. 55 L. Ed. 771, 31 S. Ct. 538. Right of officer of interstate carrier to refuse to make reports under hours of La- bor Act. — The secretary or similar officer of a carrier subject to the Act of March 4, 1907, regulating hours of labor of em- ployees, can not claim a personal privilege against self-incrimination to justify a re- fusal to comply with an order of the inter- state commerce commission, requiring such official to make monthly reports un- der oath, showing the instances where em- ployees subject to the act have rendered excess service, and giving the cause and explanatory facts, if any, or, where there has been no excess service, to make a separate oath to that efifect, in lieu of the form to be used in detailing excess serv- ice. Baltimore, etc., R. Co. v. Interstate Commerce Conim., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621. The transactions to which the required reports relate are corporate transactions, subject to the regulating power of con- gress. And, with regard to the keeping of suitable records or corporate adminis- tration, and the making of reports of cor- porate action, where these are ordered by the commission under the authority of congress, the officers of the corporation, by virtue of the assumption of their duties 358 Vol. IV. CONSTITUTIONAL LAW. 505-508 Otherwise as to Officer's Private Books and Papers. — The privilege against self-incrimination protects a corporate officer against the compulsory pro- duction of his private books and papers, although they may have been actually written by another.'^ '^'^ As Affected by Provision against Unreasonable Searches and Seizures. — The protection against unreasonable searches and seizures afforded by U. S. Const., fourth amendment, can not ordinarily be invoked to justify the refusal of an officer of a corporation to produce its books and papers in obedience to a subpoena duces tecum issued in an action against the corporation to recover a stat- utory penalty.'' '"" c. A Personal Privilege.— -Th^ testimonial privilege on account of tendency to incriminate is purely personal, and can be claimed only by the witness himself."**^ 4. /;; What Proceedings Applicable. — See ante. "Distinction between Natural Persons and Corporations," XVIII, L, 3, b; "As Dependent upon Capacity in Which Books Are Held ; Right of Corporate Officers to Refuse to Produce Cor- porate Books." X\'III, L, 3, hy2 ; post, "What Constitutes a \'iolation of the Con- stitutional Principle," XVIII, L, 5, et seq. 5. What Constitutes a Isolation of the Constitutional Principle — b. Seizure or Compulsory Production of Private Books and Papers to Be Used in Evidence. — See, also, post. Searches and Seizures. Admissibility of Papers, etc., Unlawfully Seized.— See note 82. c. Compelling Accused tO Stand Up, Walk before Jury, etc. — The protection against self-incrimination afforded by U. S. Const., Fifth Amendment, extends to the us^ against the accused of communications extorted from him by phys- ical or moral compulsion, but not to evidence obtained from the exhibition of his person, such as testimony as to the fit of a blouse which he was forced to put on.^^^ as such, are bound by the corporate obli- gation, and can not claim a personal priv- ilege in hostility to the requirement. Bal- timore, etc., R. Co. V. Interstate Com- merce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621; Wilson v. United States, 221 U. S. 361. 55 L. Ed. 771, 31 S. Ct. 538. 505-69d. Otherwise as to officer's pri- vate books and papers. — Wilson v. United vStates. 221 U. S. 361. 55 L- Ed. 771, 31 S. Ct. 538; Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746, 6 8. Ct. 524; Ballmann V. Fagin, 200 U. S. 186, 195, 50 L. Ed. 433, 26 S. Ct. 212. Where one's private documents would tend to incriminate him, the privilege ex- ists although they were actually written by another person. And where an officer of a corporation has possession of corpo- rate records which disclose his crime, there is no ground upon which it can be said that he will be forced to produce them if the entries were made by another, but may withhold them if the entries were made by himself. The books are no more his private books in the latter case than in the former. Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. 505-69e. As affected by provision against unreasonable searches and seizure s. — American Lithographic Co. v. Werckme- ister, 221 U. S. 603, 55 L. Ed. 873, 31 S. Ct. 676. See post, SEARCHES AND SEI- ZURES. 505-70a. A personal privilege. — Consoli- dated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178, affirm- ing 80 Vt. 55, 66 Atl. 790. With respect to corporate officers, it is sufficient to say that the privilege guar- anteed to them by this amendment is a personal one, which can not be asserted on their behalf by the corporation. Balti- more, etc., R. Co. V. Interstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621. 508-82. Admissibility of papers unlaw- fully seized. — Constitutional rights of a corporate defendant against self-incrimi- nation and unlawful searches and seizures in an action for the forfeiture of infring- ing copies of a' painting protected by copj'right, are not violated by the seizure and admission in evidence of the infring- ing copies not by the admission in evi- dence of the replevin proceedings under which they were seized, over the objec- tion that, by such proceedings, rights un- der the fourth and fifth amendments to the federal constitution were invaded. American Tobacco Co. v. Werckmeister, 207 U. S. 284, 52 L. Ed. 208, 28 S. Ct. 72. 508-84a. Compelling accused to stand up, walk before jury, etc.— Fit of blouse. —Holt V. United States, 218 U. S. 245, 54 L. Ed. 1021, 30 S. Ct. 2. 3.59 508-509 CONSTITUTIONAL LAW. Vol. IV. Where Order Goes Too Far. — When he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is com- petent.84'' cy2. Compelling Bankrupt to Produce Books and Papers. — Requiring a bank- rupt to deposit his books of account in the office of the receiver, there to remain in the custody of the bankrupt, who is to afiford the receiver free opportunity to inspect them, the receiver to use and permit them to be used only for the pu*rpose of the civil administration of the bankrupt estate, and not for any criminal pro- ceeding, is a proper exercise of the authority of the bankruptcy court, and does not compel the bankrupt to be a witness against himself in a criminal case in the constitutional sense, although the knowledge gained from the books may be used to procure other evidence for use against him in a criminal prosecution.^'*'^ c^. Compelling Publicity as to Tax Returns. — The provision of the fifth amendment protecting persons against compulsory self-incriminating testimony was not intended to prevent the ordinary procedure of requiring tax returns to be made under oath, nor is that guaranty of the constitution infringed by a statutory provision making such returns public documents and open to inspec- tion as such.8-1'^ d. Exceptions and Limitations — (4) Immunity Statutes. — See notes 89, 91. 508-84b. Evidence competent even though order goes too far. — Holt v. United States, 218 U. S. 245, o-4 L. Ed. 1021, 30 S. Ct. 2; Adams v. New York, 192 U. S. 585, 48 L. Ed. 575, 24 S. Ct. 372. Testimony that the accused put on a blouse, and that it fitted him, is not made inadmissible on the question whether or not it belonged to him because the pris- oner did this under duress, since, even as- suming that such evidence was improp- erly obtained, it is still competent. Holt V. United States, 218 U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2. 508-84C. Compelling bankrupt to pro- duce books and papers. — Matter of Harris, 221 U. S. 274, 55 L. Ed. 732, 31 S. Ct. 557. "If the order to the bankrupt, standing alone, infringed his constitutional rights, it might be true that the provisions in- tended to save them would be inadequate, and that nothing short of statutory im- munity would suffice. But no constitu- tional rights are touched. The question is not of testimony, but of surrender, not of compelling the bankrupt to be a wit- ness against himself in a criminal case, present or future, but of compelling him to yield possession of ^property that he no longer is entitled to keep. If a trustee had been appointed, the title to the books would have vested in him by the express terms of § 70, and the bankrupt cou'd not have withheld possession of what he no longer owned, on the ground that otherwise he might be punished. That is one of the misfortunes of bankruptcy if it follows crime. The right not to be compelled to be a witness against onese'f is not a right to appropriate property that may tell one's story. As the bankruptc}' court could have enforced title in favor of the trustee, it could enforce possession ad interim in favor of the receiver. Section 2. In the properly careful provision to pro- tect him from use of the books in aid of prosecution, the bankrupt got all that he could ask." Matter of Harris, 221 U. S. 274, 55 L. Ed. 732, 31 S. Ct. 557. 508-84d. Compelling publicity as to tax returns. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. See, also, post, SEARCHES AND SEI- ZURES. 509-89. Immunity statutes. — Congress may compel the giving of testimony which may serve to incriminate the witness, pro- vided immunity be accorded in all re- spects commensurate with the guaranty of U. S. Const., 5th Amend., against self- crimination. The authorities which es- tablish this elementary proposition are too numerous to be cited, and the federal supreme court therefore simply refer to a few of the leading cases on the subject. Glickstein v. United States, 222 U. S. 139, 56 L. Ed. 128, 32 S. Ct. 71, citing Coun- selman v. Hitchcock, 142 U. S. 547, 35 L. Ed. 1110, 12 S. Ct. 195; Brown v. Walker, 161 U. S. 591, 40 L. Ed. 819, 16 S. Ct. 644; Burrell v. Montana, 194 U. S. 572, 578, 48 L. Ed. 1122, 24 S. Ct. 787; Jack v. Kansas, 199 U. S. 372, 50 L. Ed. 234, 26 S. Ct. 73; Ballmann v. Fagin, 200 U. S. 186, 195, 50 L. Ed. 433, 26 S. Ct. 212; Hale V. Henkel, 201 U. S. 43, 66, 50 L. Ed. 652, 26 S. Ct. 370: Heike v. United States, 217 U. S. 423, 54 L. Ed. 821, 30 S. Ct. 539. Statutes construed — Admissibility of evidence obtained in present proceeding. — Entries in the books of a corporation defendant, produced in obedience to a subpoena duces tecum, were not rendered inadmissible on the trial by U. S. Rev. Stat., § 860, U. S. Comp. Stat. 1901, p. 661, providing that no discovery or evi- dence obtained from a party or witness 360 Vol. IV. COXSTITUTIOXAL LAW. 510-512 Relates Only to Past Offenses. — The immunity which must, under U. S. Const., fifth amendment, be accorded to a witness compelled to give evidence against himself, relates only to past offenses, and need not exempt the witness from prosecution for perjury committed when so testifying.^i*^ (5) Waiver of Privilege. — If the privilege of a witness is not claimed by him it will be waived. ^^^ Duty to Appear in Obedience to Subpoena and Claim Privilege. — A wit- ness can not refuse to obey a subpoena and still claim the privilege that his tes- timony, if given, would incriminate himself. He must obey the subpoena and by means of a judicial proceeding shall be given in evidence or used against "him in a criminal case, or in a proceeding to enforce a penahy or forfeiture, since these provisions manifestly refer to a case where, in some prior judicial proceeding, a discovery had been made or testimony had been given, and the evidence so ob- tained was sought to be used. American Lithographic Co. v. Werckmeister, 221 U. S. 603, 55 L. Ed. 873, 31 S. Ct. 676. Section 860, since repealed by the Act of May 7, 1910, chap. 216 (36 Stat, at L. 352), was a re-enactment of § 1 of the act of February 25, 1868, chap. 13 (15 Stat. at L. 37), and provided: "Section 860. No pleading of a party, nor any discovery or evidence obtained from a party or wit- ness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforce- ment of any penalty or forfeiture: Pro- vided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in dis- covering or testifying as aforesaid." This language is inapposite here, for it mani- festly refers to a case where, in some prior judicial proceeding, discovery had been made or testimony had been given, and the evidence so obtained was sought to be used. The object of the statute is sufficiently plain. It was intended to give immunity as to subsequent proceedings to the one making discovery or testifying. But it was held to be inadequate, because it was not coextensive with the constitu- tional privilege. American Lithographic Co. V. Werckmeister, 221 U. S. 603, 55 L. Ed. 873, 31 S. Ct. 676; Counselman v. Hitchcock, 142 U. S. 547, 564, 35 L. Ed. 1110, 12 S. Ct. 195; Brown v. Walker, 161 U. S. 591, 594, 40 L. Ed. 819, 16 S. Ct. 644. 510-91. Immaterial that witness may be indicted and compelled to plead immunity. — A shield against successful prosecution. available to the accused as a defense, and not immunity from the prosecutions it- self, is what was secured by the Act of February 25, 1903, as amended by the Act of June 30, 1906, providing that no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing con- cerning which he may testify or produce evidence in any proceeding, suit, or pros- ecution under the Sherman anti-trust and interstate commerce acts. Heike x-. United States, 217 U. S. 423, 54 L. Ed. 821, 30 S. Ct. 539. 510-91a. Relates only to past oflenses. — Glickstein ^•. United States, 222 U. S. 139, 56 L. Ed. 128, 32 S. Ct. 71. The immunity clause in the Bankrupt Act of July 1, 1898 (30 Stat, at L. 548, chap. 541, U. S. Comp. Stat. 1901, p. 3425), § 7, subd. 9, that no testimony given by the bankrupt under the command of that section shall be offered in evidence against him in any criminal proceeding, does not bar a criminal prosecution for perjury for false swearing when giving such tes- timony. Glickstein v. United States, 222 U. S. 139, 56 L. Ed. 128, 32 S. Ct. 71. "The argument that because the section does not contain an expression of the res- ervation of a right to prosecute for per- jury in harmony with the reservations in Rev. Stat. 860, and the Act of 1893, there- fore it is to be presumed that it was in- tended that no such right should exist, we think, simply begs the question for decision, since it is impossible in reason to conceive that congress commanded the giving of testimony, and at the same time intended that false testimony might be given with impunity, in the absence of the most express and specific command to that effect." Glickstein v. United States, 222 U. S. 139, 56 L. Ed. 128, 32 S. Ct. 71. 512-99a. Waiver of privilege — By fail- ure to claim same. — Consolidated Render- ing Co. :■. \'ermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178, judgment affirmed, 80 Vt. 55, 66 Atl. 790. See, also, post, "Witness Taking Stand in His Own Be- half; Cross-Examination, Lnpeachment, etc.," XVin, L. 5, d, (6). The question whether a witness was privileged to refuse to answer a question on the ground that the answer might in- criminate him is not before an appellate court for review, where the witness did not stand on his privilege, but answered the question. Taylor v. United States, 152 F. 1, 81 C. C. A. 197, judgment affirmed. Taylor v. United States, 207 U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53. 361 512 CONSTITUTIONAL LAW. Vol. IV. be sworn before he can claim his privilege from giving evidence. ^^'^ How Privilege Claimed. — In a contempt proceeding for failure to obey an order to produce certain books and papers, where the petition in the proceeding contains no allegation relating to any claim of privilege or any testimony that appears to be incriminating, the question of privilege on account of the tend- ency to incriminate can not be raised in a motion to dismiss the petition, since a motion to dismiss is not issuable, and reaches defects only which appear on the face of the pleading affected by it.^^*^ Claim to Be Made by Witness in Person, etc. — A witness can not dis- obey a subpoena duces tecum and refuse to produce books and papers when called for, and still claim through his attorney the privilege that the books and papers, if produced, would tend to incriminate him, since the claim of privilege must be made by himself under oath in court, and the claim considered and acted upon by the court in the proceeding for which the witness was called. ^^"^ Same — Province of Court and Jury. — Whether certain testimony sought is privileged must be determined by the court. ^^'' (6) Witness Taking Stand in His Ozvn Behalf; Cross-Bxammation, Im- peachment, etc. — See note 1. 512-99b. Duty to appear in obedience to subpoena and claim privilege. — Consoli- dated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178, judg- ment affirmed, 80 Vt. 55, 66 Atl. 790. Laws 1906, p. 79, No. 75, provides that any corporation doing business in the state shall, upon notice, produce before any court, grand jury, tribunal, or com- mission, acting under authority of the state, all books, correspondence, memo- randa, papers, and data which may con- tain any account, reference, or information concerning the proceedings or subject of inquiry pending before the body, and which may at any time have been made or kept within the state, and are in the custody of the corporation, or which re- late to an}^ transaction within the state or with parties residing or having a place of business therein, and providing for the manner of service of the order to produce and for punishment for contempt in case of noncompliance. An order was issued under this statute directing a corporation to produce before a grand jury certain books and papers, and for a violation of this order proceedings for contempt were instituted. Held, that the statute, order, and contempt proceedings were not con- trary to Const., art. 10, providing that no one can be compelled to give evidence against himself, since the company was not a party, nor charged with any crime, and was simply summoned to appear be- fore the grand jury with the documentary evidence, where the privilege could have been claimed if desired. In re Consoli- dated Rendering Co., 66 A. 790, 80 Vt. 55, judgment affirmed. Consolidated Render- ing Co. v. Vermont, 207 U. S. 541, 52 L. Ed. .327, 28 S. Ct. 178. 512-99C. How privilege claimed. — Con- solidated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178, af- firming judgment, 80 Vt. 55, 66 Atl. 790. 512-99d. Claim to be made by witness in person, etc. — Consolidated Rendering Co. V. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178, 80 Vt. 55, 66 Atl. 790, affirmed. 512-99e. Same — Province of Court and jury. — Consolidated Rendering Co. v. Ver- mont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178, 80 Vt. 55, 66 Atl. 790, affirmed. Whether the documentary evidence is relevant, and would be proper testimony to be used in the case when produced, is for the court, and not for the witness, to say. In re Consolidated Rendering Co., 66 A. 790, 80 Vt. 55, judgment af- firmed. Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. 512-1. Witness taking stand in his own behalf — Cross-examination, impeachment, etc. — An accused who voluntarily takes the stand in his own behalf, thereby waiv- ing his privilege, may be subjected to cross-examination concerning his state- ment. Powers V. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. The rule recognized in the federal su- preme court is that a defendant who vol- untarily takes the stand in his own be- half, thereby waiving his privilege, may he subjected to a cross-examination con- cerning his statement. "Assuming the position of a witness, he is entitled to all its rights and protection, and is subject to all its criticisms and burdens;" and may be fully cross-examined as to the testimony voluntarily given. Powers v. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281; Reagan v. United States, 157 U. S. 301, 305, 39 L. Ed. 709, 15 S. Ct. 610. The rule is thus stated in Brown v. 362 Vol. IV CONSTITUTIONAL LAW. 513 Evidence and Statements Previously Given — Failure to Warn Accused That They May Be Used against Him. — Statements voluntarily made by the accused previous to his trial are admissible against him, as well as evidence vol- untarily and imderstandingly given at a preliminary hearing; and it is not es- sential to the admissibility of such statements or evidence that the accused should have been warned that what he said might be used asrainst him.^^ Walker, 161 U. S. 591, 597, 40 L. Ed. 819, 16 S. Ct. 644: "Thus, if the witness him- self elects to waive his privilege, as he may doubtless do, since the privilege is for his protection, and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclos- ure." Powers V. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. One accused of illegal conduct with ref- erence to the distillation of spirits, who has testified in chief that he was em- ployed to beat apples near a still, with no interest in them, or in the product, or in the still, may be asked on cross-exami- nation whether he had not previously worked with his alleged employer at a distillery and made brandy with him. as relevant to his claitn that he was inno- cently occupied. Powers v. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. 513-3a. Evidence and statements previ- ously given — Failure to warn accused that same may be used against him. — Powers ^. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. The admission in evidence at the trial of the testimony of the accused, volun- taril}^ and understandingly given at the preliminary hearing, does not violate at the privilege against self-crimination ac- corded by U. S. Const., 5th Amend., al- though he was not warned at the time that what he said might be used against Tiim. Powers v. United States. 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. Testimony of an accused, voluntarily given at the preliminary hearing, is not rendered inadmissible at the trial bv U. S. Rev. Stat., § 860, U. S. Comp. Stat. 1901, p. 661, providing that no pleading nor any discovery or evidence obtained from a part}' by means of a judicial proceeding shall be used in evidence against him in a criminal proceeding. Powers v. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. In Wilson v. United States, 162 U. S. 613, 40 L. Ed. 1090, 16 S. Ct. 895, Wilson was charged with murder. Before a United States commissioner, upon a pre- liminary hearing, he made a statement which was admitted at the trial. He had no counsel, was not warned or told of his right to refuse to testify, but there was testimony tending to show that the statement was voluntary. At page 623 the federal supreme court said: "And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but, on the contrary, if the confes- sion was voluntary, it is sufficient, though it appear that he was not so warned. Joy, Confessions, §§ 45, 48, and cases cited. * * * He (Wilson) did not testify that he did not know that he had a right to refuse to answer the questions, or that, if he had known it, he would not have answered. * * * He did not have the aid of counsel, and he was not warned that the statement might be used against him, or advised that he need not answer. These were matters which went to the weight or credibility of what he said of an incriminating character: but as he was not confessing guilt, but the contrary, we think that, under all the circumstances dis- closed, they were not of themselves suffi- cient to require his answers to be excluded on the ground of being involuntary as matter of law." Powers v. United States, 223 U. S. 303. 56 L. Ed. 448, 32 S. Ct. 281. Statements made by accused in igno- rance of his rights, or without knowledge of purpose for which obtained. — The ac- cused can not claim to have been com- pelled to be a witness against himself, in violation of the Philippine Islands Civil Government Act of July 1, 1902 (32 Stat, at L. 692, chap. 1369), § 5, because of the denial of a motion to compel the pro- vincial fiscal to return a statement made by accused in ignorance of his rights, and to prohibit the fiscal from using the state- ment, where such statement was not afterwards used in any way. Pendleton f. United States, 216 U. S. 305, 54 L. Ed. 491, 30 S. Ct. 315. Same — Right to be in a position to be able not to tell the truth. — Defendant was subpoenaed as a witness, and obej^ed by .^roing to the fiscal's, where he answered questions put to him without knowing that '^e had a right to refuse, or being notified that he had such right, and not knowing that "the object of securing his statement was in order to search for proof against him." The affidavit also stated that he was not represented by counsel, and did not know that he had a right to consult a lawyer. Motion was made, presumably based on the affidavit, for an order to the fiscal to return to the defendant the state- ment, together with all copies of the same, and that the fiscal be prohibited from using the statement in any manner what- ever. Nothing seems to have been done 363 514-518 COXSTITUTIOKAL LAW. Vol. IV. M. Excessive Bail or Fines; Cruel and Unusual Punishment— 2. Ex- cKssivE Finks; Crue^l and Unusual Punishments — c. What Constitutes Cruel or Unusual Punishment, or Excessive Pine. — See notes 11, 14. XIX. Ex Post Facto Laws and Bills of Attainder. C. Definitions and General Principles — 1. Ex Post Facto Laws — d. Re- fer Only to Crimes. — See note 29. with that motion, and subsequently it was repeated and denied on the ground "that it was not a proper time to make such motion, as the court could not then decide on the admissibility of proofs which had not yet been offered in the cause." An exception was entered. It was not contended that the statement was after- wards used in any way, but the action of the court was urged nevertheless as an error "so grave and so material," to use counsel's words, "as to call for a new trial." The argument to support it was based on suppositions of what might have been donej and the potency of the state- ment in the hands of the prosecuting of- ficer. "It left the defendant open, it was said, to the fire of a masked battery." Replying to this argument, the court said: "But the law has no measure to apply to such a situation. Defendant was certainly not disabled from telling the truth in other statements if he wished to make them, and to be able not to tell the truth can hardly be urged as a legal and con- stitutional right. The assignment of error, therefore, is not well taken." Pendleton V. United States, 216 U. S. 305, 54 L. Ed. 491, 30 S. Ct. 315. 514-11. What constitutes excessive fine or cruel and unusual punishment. — What constitutes a cruel and unusual punish- ment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like. Weems v. United States, 217 U. S. 349, 54 L. Ed. 793, 30 S. Ct. 544. Cruel and unusual punishment, forbid- den by the Philippine bill of rights, is in- flicted by the provisions of the Philippine Penal Code under which the falsification by a public official of a public and official document must be punished by fine and imprisonment at hard and painful labor for a period ranging from 12 years and a day to 20 years, the prisoner being sub- ject, as accessories to the main punish- ment, to carrying, during his iinprison- ment, a chain at the ankle, hanging from the wrist, to deprivation during the term of imprisonment of civil rights, and to perpetual absolute disqualification to enjoy political rights, hold office, etc., and to surveillance of the authorities during life. Weems v. United States, 217 U. S. 349, 54 L. Ed. 793, 30 S. Ct. 544. 514-14. Increased punishment for habit- ual criminals. — Cruel and unusual punish- ment is not inflicted upon a former con- vict by bringing him, after conviction, before the court of another county in a separate proceeding instituted conform- ably to W. Va. Code, chap. 165, §§ 1-5, by information charging him with prior convictions which were not alleged in the indictment on which he was last tried and convicted, and, on the finding of the jury that he was the former convict, sen- tencing him to the additional punishment which chap. 152, §§ 23, 24, in such cases- prescribes. Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583. 518-29. Refer only to crimes. — "This court had occasion in a very early case to consider the meaning of an ex post facto law as the term is used in the federal constitution, prohibiting the states from passing any law of that character. Calder z: Bull, 3 Dall. 385, 390, 1 L. Ed. 648. In that case it held that such laws, within the meaning of the federal constitution, had reference to ci:iminal punishments, and did not include retrospective laws ot a different character. That case has been cited and followed in later cases in this court. See Kring f. Missouri, 107 U. S. 221. 27 L. Ed. 506, 2 S. Ct. 443; Orr v. Oilman, 183 U. S. 278, 285, 46 L. Ed. 196. In the latter case a former decision of this court, in Carpenter v. Pennsylvania, 17 How. 456, 463, 15 L. Ed. 127, opinion by Mr. Justice Campbell, was quoted with approval. It was therein said: 'The de- bates in the federal convention upon the constitution show that the terms "ex post facto laws" were understood in a re- stricted sense, relating to criminal cases- only, and that the description of Black- stone of such laws was referred to for their meaning. 3 Madison Papers, 1399,. 1450, 1579.' " Kentucky Union Co. v. Ken- tucky, 219 U. S. 140, 152, 55 L. Ed. 137, 81 S. Ct. 171. The retroactive feature of the provi- sions of the Act of June 29, 1906, § 15, au- thorizing the impeachment of naturaliza- tion certificates where fraudulently or il- legally procured, do not invalidate that section under U. S. Const, art. 1, § 9, prohibiting ex post facto laws. Johan- nessen v. United States, 225 U. S. 227, 56 L. Ed. 1066, 32 S. Ct. 613. It is insisted that, if retrospective in form, § 15, Act of June 29, 1906, chap. 3592 (34 Stat, at L. 596, 601, U. S. Comp. Supp. 1909, pp. 97, 485), is void, as an ex post facto law within the prohibi- 364 Vol. IV. CONSTITUTIONAL LAW. 519 E, Rule of Construction. — Taking Statute as Construed by State Court. — Where the highest court has construed a law of the state in such a manner as to avoid giving it an ex post facto operation, the federal supreme court will not construe it otherwise so as to bring it in conflict with the federal constitutional provision.-'^^'^ I. Infringement of the Constitutional Guaranty — 1. Laws Making That Criminal Which Was Not So in Its Inception — b>4. Penalizincf the Carrying Out of Contracts Which Were Lazafid When Entered into. There is no vested right to carry into effect a contract which was originally made contrary to the provisions of law, or which, though made consistently with the rules of law at that time, has become illegal in virtue of some subse- quent law. Wliile, therefore, it is beyond the power of government, consistently with the ex post facto provisions of the constitution, to penalize the execution or entering into a contract by a law enacted subsequent to the making of the contract, it is entirely competent for government to penalize the carrying out of a contract which has become illegal or opposed to public policy by reason of tion of art. 1, § 9 of the constitution. It is, however, settled that this prohibi- tion is confined to laws respecting crimi- nal punishments, and has no relation to retrospective legislation of any other description. Coolev, Const. Lim. 6th ed. 319; Calder ?■. Bull^ 3 Dall. 385, 390, 1 L. Ed. 648; and Rose's Note thereon. The act imposes no punishment upon an alien who has previously procured a certificate of citizenship by fraud or other illegal conduct. It simply deprives him of his ill-gotten privileges. Johannessen v. United States, 225 U. S. 227, 56 L. Ed. 1066, 32 S. Ct. 613. 519-39a. Taking statute as construed by state court. — Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171; Ughbanks z'. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. The objection that the retrospective fea- tures of Act Ky. March 15, 1906, c. 22, art. 3, forfeiting land titles for failure to list and pay taxes, make the law an ex post facto one, is not valid, where such legislation, as construed by the highest court of the state, imposes no retrospec- tive penalties or punishment of a criminal nature. Kentucky Union Co. v. Ken- tucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171, affirming judgments (1907) 106 S. W. 260, 127 Ky. 667, and (1908) 108 S. W. 931, 128 Ky. 610, 111 S. W. 362, 33 Ky. Law Rep. 857. State construction as to r^eal of stat- utes — Michigan indeterminate sentence act. — "A constitutional amendment was adopted (1901), which authorized the leg- islature to provide for an indeterminate sentence law, as punishment for crime, on conviction thereof. Art. 4, § 47, constitu- tion of Michigan, as amended. * * * Un- der the authority of this amendment the legislature, in 1903, passed Act No. 136 of the public acts of that year. This act was held to be valid. In re Campbell, 138 Mich. 597, 101 N. W. 826; In re Duff, 141 Mich. 623, 105 N. W. 138. An act of a character very similar has been held to violate no provision of the federal consti- tution. Dreyer 7'. Illinois, 187 U. S. 71, 47 L. Ed. 79, 23 S. Ct. 28. While the act in question here was in force, the crime of plaintiff in error was committed, and on the 17th of March, 1904, he was sentenced as already stated. The sentence fixed the maximum as well as the minimum term of imprisonment, but the fixing of the maximum term in the sentence has been held to be void, as not intended or au- thorized by the law of 1903 in any case where the statute providing for the pun- ishment of a crime itself fixes the maxi- mum term of imprisonment at a certain number of years. In re Campbell, and In re Duff, supra. * * * In 1905, Public Acts of Michigan, No. 184, p. 268, the legisla- ture passed another act on the same sub- ject and repealed the Act of 1903. The plaintiff in error contends that the provi- sions of the Act of 1905 are more unfav- orable to him than that of the Act of 1903, and that it is invalid as to him because it is an ex post facto law, and, as the Act of 1903 has been repealed, there is no act in force by which he can be further impris- oned. Without stopping to inquire whether the Act of 1905 would be, in his case, an ex post facto law, it may be stated that the supreme court of Michigan has held that the Act of 1903 is not repealed as to those who were sentenced under it, and that, as to them, it is in full force, and the statute of 1905 has no application. In re Manaca, 146 Mich. 697, 110 N. W. 75. In such a case as this we follow that con- struction of the constitution and laws of the state which has been given them by the highest court thereof. There is there- fore, no force in the contention made on the part of the plaintiff in error that the Act of 1905 applies in his case and is ex post facto." Ughbanks z'. -Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. 365 520 CONTEMPORANEOUS CONSTRUCTION. Vol. IV. subsequent statutes or change of policy.^^^ 3. Increase of Punishment eor Subsequent Oeeenses. — See ante, "Un- equal Punishment," VII, B, 4, d, (8). 3^. Indeterminate Sentence Acts. — See ante, "Rule of Construction," XIX, E. CONSTRUCTION. — See ante. Constitutionae Law, p. 264; post. Interpre- tation AND Construction; Principal and Surety; Statutes; Treaties; Wills. As to construction of United States contracts, see United States. CONSULS. — See ante, Ambassadors and Consuls, p. 25 ; post, Executors AND Administrators. CONTEMPORANEOUS CONSTRUCTION.— See ante. Constitutional Law, p. 264; post, Statutes. 520-45a. Penalizing the carrying out of contracts which were lawful when entered into. — Louisville, etc., R. Co. z: Mottley, 219 U. S. 467, 55 L. Ed. 297. 31 S- Ct. 265; Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. A retroactive effect, in violation of Const. U. S. art. 1, § 10, is not given to the Texas anti-trust laws of May 25, 1899 (Laws 1899, p. 246. c. 146) and of March 31, 1903 (Laws 1903, p. 119, c. 94), by con- struing them to authorize a conviction of a foreign corporation for carrying out, after the passage of those laws, an agree- ment for division of territory in suppres- sion of competition, entered into before the enactment of those laws and before the creation of the defendant corporation, and at a time when such agreement was legal. Judgment (Tex. Civ. App. 1908) 106 S. W. 918, affirmed. Waters-Pierce Oil Co. V. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. Statutes regulating interstate commerce. — As to statutes regulating interstate com- merce and penalizing the carrying out of existing contracts for rebates, free passes, reduced transportation, etc., see post, IN- TERSTATE AND FOREIGN COM- MERCE. 366 \'ol. IV. COXTEMPT. 532 CONTEMPT. II. Purpose and Nature of Proceedings, 367. A. Purpose, 367. B. Nature, 367. III. Power to Punish, 369. A. Power of Court, 369. 1. Inherent Power. 369. V. What Constitutes Contempt, 369. A. In General, 369. C. Disobedience of Order of Court, 370. 1. Necessity for Notice of Order, 370. 2. A^iolation of Order of Injunction. 370. 4. Disobeying Order to Produce Books and Papers, 370. VIII. Procedure and Practice, 370. G. Effect of Settlement of Alain Cause- — Dismissal, 370. XI. Appeal and Error, 371. CROSS REFERENCES. See the title Contempt, vol. 4, p. 531, and references there given. II. Purpose and Nature of Proceedings. A. Purpose. — See post, '"Inherent Power," III, A, 1. B. Nature. — There is an essential difference between civil and criminal con- tempt,^'' and they are governed by different rules of procedure. ^^ But whether 532-5a. Civil and criminal contempt dis- tinguished. — Gompers -'. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492. 532-5b. Different rxiles of procedure. — Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797. 31 S. Ct. 492. Proceedings for civil contempt are be- tween the original parties and are insti- tuted and tried as a part of the main cause. But on the other hand, proceed- ings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause. Gom- pers V. Bucks Stove, etc., Co., 321 U. S. 418, 444, 55 L. Ed. 797, 31 S. Ct. 492. A proceeding, instituted by an ag- grieved party to punish the other party for contempt for affirmatively violating an injunction in the same action in which the injunction order was issued, and pray- ing for damages and costs, is a civil pro- ceeding in contempt, and is part of the main action, and the court can not punish the contempt by imprisonment for a def- inite term; the only punishment is by fine measured by the pecuniary injury sustained. Gompers -•. Bucks Stove, etc., Co., 221 U. S. 418. 55 L. Ed. 797, 31 S. Ct. 492. In proceedings for civil contempt the complainant, if successful, is entitled to costs. Rapalje on Contempt, § 132, And evidently on the theory that this was a civil proceeding and to be governed by the rules applicable to an equity cause, the Bucks Stove & Range Co. moved the court to amend the decree so as to award to it "its costs." After argument by solicitors for both parties, the motion was granted, and the court adjudged that the complainant do recover against the defendants its costs in said contempt pro- ceeding. This ruling was no doubt cor- rect as this was a civil case, but could not have been granted in a proceeding for criminal contempt, where costs are not usually imposed in addition to the im- prisonment. Where they are awarded they go to the government, for the use of its officers. Gompers v. Bucks Stove, etc.. Co., 221 U. S. 418, 444, 55 L. Ed. 797, 31 S. Ct. 492. In another most important particular the parties clearly indicated that they regarded this as a civil proceeding. The complainant made each of the defendants a witness for the company, and, as such, each was required to testify against him- self, a thing that most likely would not have been done, or suffered, if either party had regarded this as a proceeding at law for criminal contempt, because the provision of the constitution that "no per- 361 532 CONTEMPT. Vol. IV. the proceedings be civil or criminal, there must be an allegation that in contempt of court the defendant has disobeyed the order, and a prayer that he be attacked and punished therefor.^'' It is not the fact of punishment but rather its character and purpose that often ser\'e to distinguish between the two classes of cases. ^"^ son shall be compelled in any criminal case to be a witness against himself" is applicable, not only to crimes, but also to quasi-criminal and penal proceedings. Gompers v. Bucks Stove, etc., Co., 221 U. S. 418; 447, 55 L. Ed. 797, 31 S. Ct. 492. See, also, post, WITNESSES. 532-5C. Necessity for prayer that de- fendant be punished. — Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492. 532-5d. Character of punishment as serving to distinguish. — Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797; 31 S. Ct. 492; In re Merchants' Stock, etc., Co., 223 U. S. 639, 56 L. Ed. 584, 32 S. Ct. 339. Thus, if it is for civil contempt, the punishment is remedial, and for the bene- fit of the complainant. But if it is for criminal contempt the sentence is puni- tive, to vindicate the authority of the court. It is true that punishment by im- prisonment may be remedial, as well a.« punitive, and many civil proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act re- quired by the court's order. Gompers v. Bucks Stove, etc., Co., 221 U. S. 418 441, 55 L. Ed. 797, 31 S. Ct. 492. For example: If a defendant should' refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance re- quired by a decree for specific perform- ance, he could be committed until he com- plied with the order. Unless these were special elements of contumacy, the re- fusal to pay or to comply with the order is treated as being rather in resistance to the opposite party than in contempt of the court. The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial and is intended to coerce the defendant to do the thing required by the order for the benefit of the complain- ant. If imprisoned, as aptly said in re Nevitt, 117 Fed. Rep. 451, "he carries the keys of his prison in his own pocket." He can end the sentence and discharge himself at any moment by doing what he had previously refused to do. Gompers V. J3ucks Stove, etc., Co., 221 U. S. 418 442, 55 L. Ed. 797, 31 S. Ct. 492. On the other hand, if the defendant does that which he has been commanded not to do, the disobedience is a thing ac- complished. Imprisonment can not undo or remedy what has been done nor afford any compensation for the pecuniary in- jury caused by the disobedience. If the sentence is limited to imprisonment for a definite period, the defendant is fur- nished no key, and he can not shorten the term by promising not to repeat the offense. Such imprisonment operates, not as a remedy coercive in its nature, . but sorely as punishment for the com- pleted act of disobedience. Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 442 55 L. Ed. 797, 31 S. Ct. 492. It is true that either form of irtiprison- ment has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindica- tion of the court's authority. On the other hand, if the proceeding is for crimi- nal contempt and the imprisonment is sorely punitive, to vindicate the authority of the law, the complainant may also derive some incidental benefit from the fact that such punishment tends to pre- vent a repetition of the disobedience. But such indirect consequences will not change imprisonment which is merely co- ercive and remedial, into that which is sorely punitive in character, or vice versa. Gompers v. Bucks Stove, etc., Co., 221 U S. 418, 443, 55 L. Ed. 797, 31 S. Ct. 492. The fact that the purpose of the pun- ishment could be examined with a view to determining whether it was civil or criminal, is recognized in Doyle v. Lon- don, etc., Acci. Co., 204 U. S. 599, 607, 51 L. Ed. 641, where it was said that "While It is true that the fine imposed is not made payable to the opposite party, com- pliance with the order relieves from pay- nient, and in that event there is no final judgment of either fine or imprisonment. * * * The proceeding is against a party, the compliance with the order avoids the punishment and there is nothing in the nature of a criminal suit or judgment im- posed for public purposes upon a defend- ant in a criminal proceeding." Gompers V. Bucks Stove, etc., Co., 221 U S 418 443, 55 L. Ed. 797, 31 S. Ct. 492. The distinction between refusing to do an act commanded, remedied by impris- 368 Vol. IV. COX TEMPT. 532-534 III. Power to Punish. A. Power of Court — 1. Ixherext Power. — See notes 8 and 10. Necessity of. — See note 11. V. What Constitutes Contempt. A. In General. — See note 17. onment until the party performs the re- quired act; and doing an act forbidden, punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punish- ment. Gompers v. Bucks Stove, etc., Co., 221 U. S. 418. 443. 55 L. Ed. 797, 31 S. Ct. 492. 532-8. Inherent power. — Gompers v. Bucks Stove, etc.. Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492. County court. — Under Laws 1906, p. 79, No. 75, the county court has jurisdiction to fine a corporation for contempt for a violation of an order to produce books and papers before the grand jury in an investigation of an alleged breach of a criminal statute b}^ citizens of the state in their dealings with the corporation therein. (1907) In re Consolidated Ren- dering Co.. 66 A. 790, 80 Vt. 55, judgment affirmed. Consolidated, etc., Co. v. Ver- mont. 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. 533-10. Congress in recognition of the necessity of the case has also declared (Rev. Stat., § 725) that the courts of the United States "shall have power to pun- ish by fine or imprisonment contempts of their authority * * *" including "dis- obedience * * * l5y any party to anj^ lawful order * * * of the said courts." But the very amplitude of the power is a warning to use it with discretion, and a command never to exert it where it is not necessary or proper. Gompers v. Bucks Stove, etc., Co.. 221 U. S. 418, 450, 55 L. Ed. 797. 31 S. Ct. 492. 533-11. Necessity of. — While it is spar- ingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration whose judg- ments and decrees would be only advis- ory. Gompers v- Bucks Stove, etc., Co., 221 U. S. 418, 450. 55 L. Ed. 797, 31 S. Ct. 492. If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts im- potent, and what the constitution now fittingly calls the "judicial power of the United States" would be a mere mockery. Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 450, 55 L. Ed. 797, 31 S. Ct. 492. This power "has been uniformly held to be necessary to the protection of the courts from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments and orders necessary to the due adminis- tration of law and the protection of the rights of suitors." Bessette v. Conkey Co.. 194 U. S. 324, 333, 48 L. Ed. 997; Gompers v. Bucks Stove, etc,, Co., 221 U. S. 418, 450, 55 L. Ed. 797, 31 S. Ct. 492. There has been general recognition of the fact that the courts are clothed with this power and must be authorized to ex- ercise it without referring the issues of fact or law to another tribunal or to a jury in the same tribunal. For if there was no such authority in the first in- stance there would be no power to en- force its orders if they were disregarded in such independent investigation. With- out authority to act promptly and inde- pendently the courts could not administer public justice or enforce the rights of private litigants. Bessette v. Conkey Co., 194 U. S. 324, 48 L. Ed. 997; Gompers V. Bucks Stove, etc.. Co., 221 U. S. 418, 450. 55 L. Ed. 797. 31 S. Ct. 492. 534-17. Lynching defendant who has ap- pealed to supreme court. — The sheriff and night jailer in charge of a prisoner under sentence of death in a state court are chargeable with contempt of the mandate of the supreme court of the United States, staying all proceedings pending an appeal, where such officials made no preparation to prevent the murder of the prisoner by a mob, actuated by the intent to prevent the delay attendant upon such appeal, al- though such action was reasonably to be anticipated, and made no effort to resist the mob, to save the prisoner, or to iden- tify the participants in the crime. United States V. Shipp, 214 U. S. 386, 53 L. Ed. 1041, 29 S. Ct. 637. See. also. United States V. Shipp. 215 U. S. 580. 54 L. Ed. 337, 30 S. Ct. 397. Participants in the murder of a prisoner under sentence of death in a state court, after an appeal to the supreme court of the United States has been allowed, are guilty of contempt of the supreme court, where their crime was actuated by the intent to prevent the delay attendant upon such appeal. United States v. Shipp, 214 12 U S En( -24 369 535-536 CONTEMPT. Vol. IV. C. Disobedience of Order of Court— 1. Necessity for Notice of Order. — An objection that a notice to produce books and papers is too broad can not be urged against the vaUdity of the order adjudging the party refusing to comply therewith guilty of contempt.--'' 2. Violation of Order of Injunction. — See note 23. Excuse for Disobedience. — See note 26. 4. Disobeying Order to Produce Books and Papers. — A corporation which refuses to produce certain books and papers before a grand jury, in compliance with Vermont Act of October 9, 1906, is guilty of contempt.2Sa Vni. Procedure and Practice. G. Effect of Settlement of Main Cause — Dismissal. — A proceeding in equity for civil contempt consisting in doing that which was forbidden by an in- junction, where the only remedial relief possible was a fine payable to the com- plainant, must be dismissed without prejudice to the power and right of the court granting the injunction to punish for contempt by proper proceedings, where U. S. 386, 53 L. Ed. 1041, 29 S. Ct. 637. See, also. United States v. Shipp, 215 U. S. 580, 54 L. Ed. 337, 30 S. Ct. 397. Destruction of subject matter of litiga- tion pending appeal. — The willful destruc- tion by municipal ofificers of the poles and wires of a light and power company, pending an appeal to the federal supreme court from a decree of a circuit court, dismissing a bill praying, among other things, an injunction to prevent such de- struction until the right shall be deter- mined, is, in and of itself, a contempt of the appellate jurisdiction of the supreme court, although such conduct may also be a violation of the temporary injunction order continued by the court below pend- ing the appeal. Merrimack River Sav. Bank v. Clay Center, 219 U. S. 527, 55 L. Ed. 320, 31 S. Ct. 295. Excuse — Punishment. — The honest be- lief that when an appeal to the federal supreme court from a decree of a circuit court, dismissing a bill asking injunctive relief against the removal or destruction by municipal officers of the poles and wires of a light and power company, had been dismissed and an order of dismissal entered, there was no reason why such poles and wires should not be removed or destroyed, although not sufficient to acquit of a technical contempt of court where no mandate had issued or could have issued under the rules of the su- preme court, may reduce the punishment to the payment of the costs of the con- tempt proceedings. Merrimack River Sav. Bank v. Clay Center. 219 U. S. 527, 55 L. Ed. 320, 31 S. Ct. 295. 535-22a. Consolidated, etc., Co. v. Ver- mont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. See post, TRODUCTION OF DOCUMENTS. Notice held not too broad. — A notice to produce certain books and papers is not too broad if it is limited to books and papers relating to dealings with cer- tain specified parties between certain spec- ified dates. Consolidated, etc., Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. 535-23. Disobeying injunction pending appeal.— Continuing a temporary injunc- tion pending an appeal to the federal su- preme court from a decree of a circuit court, dismissing a bill asking injunctive relief, operates to continue in the cir- cuit court such jurisdiction over the sub- ject matter of the litigation and the parties as to enable it to preserve the status quo pending the appeal, including the power to take cognizance of the vio- lation of the injunction. Merrimack River Sav. Bank v. Clay Center, 219 U. S. 527, 55 L. Ed. 320, 31 S. Ct. 295. See post, INJUNCTIONS. 536-26. Excuse for disobedience — Name of trade-mark suggested by court. — The use of the words "Peres Chartreux" in- stead of "Carthusian Monks" in follow- ing the form of label which the court suggested might properly be used, printed in any language, as descriptive of the liqueur manufactured by those claiming under the French liquidator of the prop- erties of the Carthusian monks who had removed to Spain, and were there con- tinuing to make their liqueur under the original secret formula, should not be pun- ished as a contempt of the injunction de- cree granting relief to the monks against unfair competition and infringement of their trade-marks. Baglin v. Cusenier Co., 221 U. S. 580, 55 L. Ed. 863, 31 S. Ct. 669. 536-28a. Disobeying order to produce books and papers. — Consolidated, etc., Co. V. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. See post, PRODUC- TION OF DOCUMENTS. 370 Vol, IV. CONTINUANCES. 540-547 there has been a complete settlement between the parties of all the matters in- volved in the original equity cause. ^^"^ XI. Appeal and Error. See ante, Appeal and Error, p. 34. CONTEST.— See post, Wills. CONTINGENT REMAINDER.— See post, Remainde^rs, Reversions and Executory Interests. CONTINGENT RIGHTS.— See note 542-3. CONTINUANCES. I. Continuances in Civil Cases, 371. A. At Law, 371. 3. As a Matter of Discretion, 371. II. Continuances in Criminal Cases, 371. C. Continuance as a ^Matter of Discretion, 371. CROSS REFERENCES. See the title Continuances, vol. 4, p. 543, and references there given. I. Continuances in Civil Cases. A. At Law — 3. As a Matter oe Discretion. — See note 544-3. n. Continuances in Criminal Cases. C. Continuance as a Matter of Discretion. — See note 33. 540-58a. Effect of settlement of main cause — Dismissal. — Gompers v. Bucks Stove, etc.. Co., 221 U. S. 418, 55 L. Ed. 797. :^l S. Ct. 492. 542-3. Contingent rights. — Where one was residuary legatee under a will, in trust to hold the fund "either at present invested or in such securities as to my said trustee may be deemed safe," and to pay over the net income to the testator's niece "in quarterly payments during all the period of her natural life," the interest of the niece was not contingent right to in- come as it should accrue in her lifetime; it was a vested life estate in a fund, changing in investment at the discretion of the trustee, but retaining its equitable identity. United States v. Fidelity Trust Co., 222 U. S. 158. 159. 56 L. Ed. 137, 32 S. Ct. 59. See post. WILLS. _ 544-3. Granting or refusing continuance discretionary. — \^aldes z'. Central .\ltagra- cia. 225 U. S. 58, 73, 56 L. Ed. 9S0, 32 S. Ct. 664. Refusing to grant a continuance of a consolidated cause arising out of the financial difficulty of a corporation whose propert}^ is in the hands of a receiver, based upon the affidavit as to the absence of material witnesses, is not an abuse of discretion, where the matter had been pending for more than a year, and all the parties in interest had acquiesced in the steps taken by the court for the purpose of bringing the cause to a speedy con- clusion and thus avoiding further loss, and had complied with the terms of the order setting the case for trial and taking advantage of the rights which it conferred. Valdes t. Central Altagracia, 225 U. S. 58, 73, 56 L. Ed. 980, 32 S. Ct. 664. As to review for an abuse of this dis- cretion.— See ante, APPEAL AND ER- ROR, p. 34. 547-33. It is elementary that the matter of continuance rests in the sound discretion of the trial court, and its action in that respect is not ordinarily reviewable. It would take an extreme case to make the action of the trial court in such a case a denial of due process of law. Franklin v. South Carolina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 640. The refusal to grant a continuance of a criminal case, sought on the ground that the counsel for the accused had not had sufficient time or opportunity to ex- amine the notes of the testimony taken before the coroner who investigated the case, is not a denial of due process of law, where the difficulty seems to have been that the notes of the testimony were somewhat illegible, and that the person making them was not at hand. Franklin V. South Carolina. 218 U. S. 161, 54 L. Ed. 980. 30 S. Ct. 640, affirming judgment. State V. Franklin, (1908), 60 S. E. 953, 80 S. C. 332. 371 548-551 CONTRACT LABOR LAW CONTINUOUS— CONTINUOUSLY— See note a. Vol. IV. CONTRACT LABOR LAW. I. statutory Provisions, 372. C. Constitutionality, 3i72. III. Enforcement, 372. CROSS REFERENCES. See the title Contract Labor Law, vol. 4, p. 549, and references there given. In addition, see ante, Conspiracy, p. 256. I. Statutory Provisions. C. Constitutionality. — See post, "Enforcement," III. III. Enforcement. Nature of Action for Penalty. — The penalty incurred for inducing an alien to migrate to the L'nited States for the purpose of performing labor there may be recovered by a civil action of debt brought by the United States ;iO'' but this fact does not preclude a prosecution by indictment to enforce it.^'"' 548-a. Continuous offenses. — See ante, CONSPIRACY, p. 2.56. Continuously operated. — The Act of March 4, HiOT, makes it unlawful for com- mon carriers to permit any employee to be on duty "for a longer period than six- teen consecutive hours," or, after that period, to go on duty again until he has had at least ten consecutive hours off duty, or eight hours after sixteen hours work in the aggregate, with a proviso that no tele- graph operator and the like shall be per- mitted to be on duty for a longer period than nine' hours in any twenty-four hour period in all tower, officers, places, and stations, continuously operated night and day, nor for a longer period than thirteen hours where operated only during daytime with immaterial exceptions. The defend- ant had a station and telegraph office at a place, which was shut from twelve to three by day and by night, but open the rest of the time. The government contended that this was a place "continuously operated night and day." The court said: "We think that the government is right in say- ing that the pro\iso is meant to deal with all offices and if so, we should go farther than otherwise we might in holding offices not operated only during the daytime as falling under the other head. A trifling interruption would not be considered, and it is possible that even three hours by night and three hours by day would not exclude the office from all operation of the law, and to that extent defeat Mdiat we be- lieve was its intent." United States z'. At- chison, etc., R. Co.. 220 U. S. 37, 55 L. Ed. 361, 31 S. Ct. 362. See post, INTER- STATE AND FOREIGN COMMERCE. 551-lOa. Nature of action to recover penalty. — Hepner z\ United States, 213 U. S. 103, 53 L. Ed. 720, 29 S- Ct. 474, dis- tinguishing Lees v. United States, 150 U. S. 476, 480, 37 L. Ed. 1150, 14 S. Ct. 163, so holding under the Act of March 3, 1903, c. 1012, §§ 4, 5, 32 Stat. 1216. See ante, ALIENS, p. 18. 551-lOb. Criminal prosecutions. — Con- gress, by providing in the Immigration Act (Act Feb. 20, 1907, c. 1134, § 5, 34 Stat. 900 [U. S. Comp. St. Supp. 1907, p. 393]), a civil action for the recovery of a penalty in case of a violation of § 4 of that act, making it a misdemeanor to assist or encourage the importation of alien contract laborers, did not preclude a prosecution by indictment to enforce such penalty. United States v. Stevenson, 215 U. S. 190, 54 L. Ed. 153, 30 S. Ct. 35. In Lees v. United States, 150 U. S. 476, 479, 37 L- Ed. 1150, 14 S. Ct. 163, the doctrine was laid down that a penalty may be recovered by indictment or in- formation in a criminal action, or by a civil action in the form of an action for debt. It is to be noted that this statute (§ 5 of the Immigration Act) does not in terms undertake to make an action for the penalty an exclusive means of enforc- ing it, and only provides that it may be thus sued for and recovered. There is nothing in the terms of the act specifically undertaking to restrict the government of this method of enforcing the law. It is not to be presumed, in the absence of language clearly indicating the contrary intention, that it was the purpose of con- gress to take from the government the well-recognized method of enforcing such' a statute by indictment and criminal pro- ceedings. United States v. Stevenson, 215 U. S. 190, 54 L. Ed. 153, 30 S. Ct. 35. Nor does this conclusion take away 372 Vol. IV. CONTRACTS. 551-562 Directing Verdict. — The court may direct a verdict for the government plaintiff in an action for the penalty incurred for violation of the contract labor law for inducing an alien to migrate to the United States for the purpose of per- forming labor there, where undisputed testimony shows that defendant has com- mitted the offense out of which the cause of action arises ;ii'' aliter, in a criminal prosecution for violation of such laws.^^'' CONTRACTORS.— See post. Working Contracts. CONTRACTOR'S BOND.— See post, Working Contracts. CONTRACTS. II. Formation and Essential Elements, 373. B. Essential Elements, 373. 5. Certainty and Completeness, 373. IV. Interpretation and Construction, 374. A. Intention of Parties, 374. 1. General Statement of Rule, 374. 2. How Intention Ascertained, 374. H5^. \\'ritten and Printed Provisions, 374. I. Construction by Parties, 374. L. Words and Phrases, 374. IX. Discharge of Contract, 375. A. Performance, 375. 7. Excuses for Xonperformance, 375. X. Procedure, 375. C. The Declaration, 375. 3. Performance, 375. CROSS REFERENCES. See the title Contracts, vol. 4, p. 552, and references there given. In addition, see ante. Conditions, p. 248; Conflict of Laws, p. 250; Con- stitutional Law, p. 264; post. Due Process of Law; Fraud and Deceit; Mines and Minerals; Police Power; Principal and Agent; Sales; United States; Usages and Customs; A^endor and Purchaser. As to conformity with practice of state courts, see post. Courts. As to con- tracts in relation to mining claims, see post. Mines and ]^Iinerals. As to con- tracts with the United States, see post, L^nited States. II. Formation and Essential Elements. B. Essential Elements — 5. Certainty and Completeness. — See note 80. any of the substantial rights of the 551-llb. United States v. Stevenson, citizen. He is entitled to the constitu- 215 U. S. 190, 54 L. Ed. 153, 30 S. Ct. 35, tional protection which requires the gov- citing Hepner v. United States, 213 U. S. ernment to produce the witnesses against 103, 53 L. Ed. 720, 29 S. Ct. 474. him. United States z'. Stevenson, 215 U. 562-80. Reservation of power to change S. 190, 54 L. Ed. 153, 30 S. Ct. 35, citing details.— The power to change details, re- Hepner v. United States, 213 U. S. 103, served by the government in a contract 53 L. Ed. 720. 29 S. Ct. 474. for a public work, does not make the 551-lla. Directing verdict. — Hepner v. contract unenforceable for want of cer- United States, 213 U. S. 103, 53 L. Ed. tainty and mutuality, there being full pro- 720, 29 S. Ct. 474, so holding under Act visions for ascertaining a change in the of March 3, 1903, c. 1012, §§ 4, 5, 32 Stat. compensation where any such change is 1214. proper. United States z\ McMullen, 222 373 570-575 CONTRACTS. Vol. IV. IV. Interpretation and Construction. A. Intention of Parties— 1. GiJnerai, Statement op Rule.— See note 37. 2. How Intention Ascertained. — See note 46. Hi. Written and Printed Provisions.— Written Provisions Prevail. — The written provisions of a contract will, in case of any repugnancy, prevail over its printed provisions. It is presumed to express the specific intention of the parties.''''' I. Construction by Parties. — See note 58. L. Words and Phrases. — See note 66. U. S. 460, 56 L. Ed. 269, 32 S. Ct. 128, reversing judgment (1909) McMullen v. United States, 167 F. 460, 93 C. C. A. 96. Conflict between essential provisions. — Irreconcilable conflict between essen- tial provisions of a contract renders it invalid. United States v. EUicott, 223 U. S. 524, 56 L. Ed. 535, 32 S. Ct. 334. An irreconcilable conflict between es- sential provisions of a contract for the construction of barges for the United States, which will prevent the contractor from recovering for failure to carry it out, exists where the specifications, which are left in full force, prescribe with much detail the weight and dimensions of the structural materials, while the contract it- self provides for the construction of the barges in accordance with the specifica- tions, "with such modifications" as are shown by certain proposals contained in the contractor's bid, under which he claims the right to use materials of an inferior size, weight, and power of resist- ance. United States v. EUicott, 223 U. S. 524, 56 L. Ed. 535, 32 S. Ct. 334. 570-37. Construction according to in- tention of parties. — The object of con- struction is to effectuate the intention of the parties in making a given contract. Sand Filtration Corp. v. Cowardin, 213 U. S. 360, 53 L. Ed. 833, 29 S. Ct. 509. See, also, post, INTERPRETATION AND CONSTRUCTION. The erection, pursuant to the direction of the government officer in charge of a temporary liftspan, which was the most feasible and least expensive substitute which could be employed after an acci- dent during the performance of a con- tract to reconstruct and remodel a gov- ernment bridge over the Mississippi river had carried away a substantial part of the unfinished drawspan, together with the false work supporting the old structure, was contemplated by the contract, so as to preclude extra compensation therefor, where the immediate opening of navigation, which would have been seriously inter- rupted by the restoration of the false work, was imminent, and the contract, although containing many minute stipu- lations looking to uninterrupted railway services across the bridge, with no ex- press requirement as to the navigability of the river, had fixed a date for the com- pletion of the drawspan sufficiently early ordinarily to insure noninterruption of navigation. Phoenix Bridge Co. v. United States, 211 U. S. 188, 199, 53 L. Ed. 141, 29 S. Ct. 81. 572-46. Sand Filtration Corp. v. Cow- ardin, 213 U. S. 360, 53 L. Ed. 833, 29 S. Ct. 509. 574-57a. Written provisions prevail. — Thomas v. Taggart, 209 U. S. 385, 52 L. Ed. 845, 28 S. Ct. 519, affirming judgment In re Jacob Berry & Co. (1906) 149 F. 176, 79 C. C. A. 124. Stock was pledged with a broker as collateral on account. It was the evident purpose of the parties that the stock was to be held, as the receipt shows, as secu- rity for losses in purchase or sale of stocks, bonds or securities on account of the customer, and the separate paragraph of the receipt, giving the right to re- pledge, etc., and substitute similar stocks, bonds and securities, had reference to the stock, securities, etc., obtained in execut- ing the orders for purchase made by the customer. This construction of the re- ceipt is placed beyond contradiction when effect is given to the words written across the face of the printed receipt as "collateral on account." Thomas v. Tag- gart, 209 U. S. 385, 389, 52 L. Ed. 845, 28 S. Ct. 519. 574-58. Construction by parties. — A contractor for a public improvement, who, pending a dispute with the govern- ment as to his right to compensation for certain work, enters into a supplemental contract with the same terms and speci- fications as the original, with full knowl- edge of the meaning affixed by the gov- ernment to the terms of such original contract, which- had been insisted upon by it in carrying on previous operations, is precluded from claiming compensation under the new contract for any work of that character. Judgment (1906) 41 Ct. CI. 214, affirmed. Bowers, etc., Dredg- ing Co. V. United States, 211 U. S. 176, 53 L. Ed. 136, 29 S. Ct. 77. 575-66. Terms given ordinary and pop- ulcir meaning. — 'A contract to grind sugar cane implies on its face, if read with any knowledge of the business, that it has ref- erence to seasons, and that it is more definite than a simple grammatical inter- pretation of the words would express. 374 Vol. IV. CONTROVERSY. 586-598 IX. Discharge of Contract. A. Performance — 7. Excuse;s for Nonperformance. — See note 29. X. Procedure. C. The Declaration — 3. Performance. — See note 53. CONTRACTS OF AFFREIGHTMENT.— See ante, Carriers, p. 216; post, Ships and Shipping. CONTRACTS OF GUARANTY.— See ante, Banks and Banking, p. 184. CONTRACTS OF HIRE.— See ante, Bailments, p. 167; post, Master and Servant. CONTRIBUTION AND EXONERATION. I. Contribution, 375. CROSS REFERENCES. See the title Contribution and Exoneration, vol. 4, p. 595, and references there given. I. Contribution. Between Wrongdoers. — See note 4. CONTRIBUTORY INFRINGEMENT.— See note a. CONTRIBUTORY NEGLIGENCE.— See ante, Carriers, Master and Servant; Negligence; Street Railroads. CONTROVERSY.— See note 2. p. 216; post, An illustration suggested at the argument brings it home to those of us whose ex- perience has been in the north. A con- tract to reap a field of wheat witii no mention of time would not leave the con- tractor free to choose his own time. The grinding of cane must be done in the grinding season, and a contract to grind is a contract to grind in the grinding sea- son. Parol evidence may be necessary to show what that season is in a given place, as it constantly is in order to trans- late words and the implications of words into things; but the season when ascer- tained is the limit by the very meaning of the words used, when used in a busi- ness contract made with regard to one of the great industries of the world." Porto Rico Sugar Co. v. Lorenzo, 222 U. S. 481, 482, 56 L. Ed. 277, 32 S. Ct. 133. 586-29. Subsequent inevitable accident or contingency. — Failure to perform an absolute undertaking to grind sugar cane during the grinding season is not excused by the repeated breaking down of the ma- chinery. Porto Rico Sugar Co. v. Lo- renzo, 222 U. S- 481, 56 L. Ed. 277, 32 S. Ct. 133. 593-53. Declaration as to performance. — Where an action is upon a contract subject to a condition precedent, the per- formance of that condition must be aver- red and proved; but if the contract sued upon is subject to a condition subsequent, there is no occasion for any averment in respect to the condition. It is a matter of defense which must come from the other side. Title Guaranty, etc., Co. v. Nichols, 324 U. S. 346, 351, 56 L. Ed. 795, 32 S. Ct. 475. 596-4. Generally not allowed between wrongdoers.^Bigelow v. Old Dominion Copper, etc., Co., 225 U. S. Ill, 56 L. Ed. 1009, 32 S. Ct. 641. 597-a. Contributory infringement. — The sale of ink to a purchaser of a rotary mimeograph sold with a license restriction that it could be used only with the ink supplied by the patentee, with the expecta- tion that the ink sold would be used in connection with such mimeograph, con- stitutes contributory infringement of the patent. Henry v. Dick Co., 224 U. S. 1, 56 L. Ed. 645, 32 S. Ct. 364. See post, PAT- ENTS. 598-2. Case and controversy distin- guished. — "A 'case' was defined by Mr. Chief Justice Marshall as early as the leading case of Marbury v. Madison, 1 Cranch 137. 2 L. Ed. 60, to be a suit insti- tuted according to the regular course of judicial procedure. And what more, if anything, is meant in the use of the term controversy? That question was dealt with by Mr. Justice Field, at the circuit, in the case of In re Pacific R. Commission, 32 Fed. 241, 255. Of these terms that learned justice said: 'The judicial article of the constitution mentions cases and controversies. The term controversies, if 375 601 COPY. Vol. IV. CONVERSION AND RECONVERSION.— See the title Conversion and Re:coxve;rsiox, vol. 4, p. 599, and references there given. CONVEYANCE.— See note 1. COPIES. — See ante. Clerks of Court, p. 241 ; post, Documentary Evi- dence ; Records. COPY. — The common understanding of the word "copy" is a reproduction or duplication of a thing.'*'' distinguishable at all from "cases."' is so in that it is less comprehensive than the latter, and includes only suits of a civil nature. Chisholm v. Georgia, 2 Dall. 419, 432, 1 L. Ed. 440, 1 Tucker's Bl: Com. App. 420, 421. By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or en- forcement of rights, or the prevention, redress, or punishment of wrongs. When- ever the claim of a party under the consti- tution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication.' " Muskrat V. United States, 219 U. S. 346, 55 L. Ed. 246, 31 S. Ct. 250. See ante, APPEAL AND ERROR, p. 34; post, COURTS; RE- MOVAL OF CAUSES. 601-1. Conveyance includes a lease. — The conveyance in § 98, of the Act of June 6, 1900, requiring recordation of convey- ances, included the lease of a mining claim. Waskey v. Chambers, 224 U. S. 564, 56 L. Ed. 885, 32 S. Ct. 597. See post, RE- CO RDING ACTS. See, also, post, DEEDS; FRAUDULENT AND VOL- UNTARY CONVEYANCES. 601-4a. Common understanding of copy. — White-Smith, etc., Pub. Co. v. Apollo Co., 209 U. S. 1, 17, 52 L. Ed. 655, 28 S. Ct. 319. A copy of a musical composition is "a written or printed record of it in intelligi- ble notation." It may be true that in a broad sense a niechanical instrument which produces a tune copies it; but this is a strained and artificial meaning. When the combination of musical sounds is repro- duced to the ear it is the original tune as conceived by the author which is heard. These musical tones are not a copy which appeals to the eye. In no sense can mu- sical sounds which reach us through the sense of hearing be said to be copies as that term is generally understood, and as it was intended to be understood in the copyright statutes. A musical composition is an intellectual creation which first ex- ists in the mind of the composer; he may play it for the first time upon an instru- ment. It is not susceptible of being copied until it has been put in a form which others can see and read. Perforated rolls which, when used in connection with mu- sical j)iano players, reproduce in sound copyrighted musical compositions, are not copies within the meaning of the Copy- right Act. White-Smith, etc.. Pub. Co. v. Apollo Co., 209 U. S. 1, 17, 52 L. Ed. 655, 28 S. Ct. 319. See post, COPYRIGHT. 376 Vol. IV. COPYRIGHT. 603-604 COPYRIGHT. I. Definition, 2)77. II. Literary Property at Common Law, 277. QYz. Effect of Public Presentation of Play, 277. III. Copyright under the Constitution and Statutes of the United States, . 378. A. In General, 378. B. What May Be Copyrighted, Z7&. 3. Painting and Engraving, 378. C. Persons Entitled to Copyright, 378. 4. Assignee of the Author, 378. 5. Citizens of a Foreign State, 27^. D. Proceedings to Obtain Copyright, 378. 5. Notice of Copyright, 378. a. Necessity of Notice, 378. c. Form and Essential Requisites of Notice, 378. F. What the Copyright Protects and the ^Measure of Protection, 378. G. Effect of Prior Publication,. 379. H. Transfer of Copyright, 379. 1. Right to Transfer, 379. 3^. Construction of Instruments Transferring the Right, 379. I. Infringement of Copyright, 379. 1. What Constitutes an Infringement, 379. 2. Remedies and Procedure, 380. b. Injunction and Accounting, 380. (1) Right to, 380. d. Penakies, 380. (2) Penalties for an Infringement of Copyright, 380. (a) Rule Stated and Construed, 380. CROSS REFERENCES. See the title Copyright, vol. 4, p. 602, and references there given. In addition, see ante, Appeal and Error, p. 34; Constitutionai, Law, p. 264; post, Courts; Jurisdiction. / I. Definition. A copyright is the exclusive privilege, secured according to certain legal forms, of printing, or otherwise multiplying, publishing, and vending copies of certain literary or artistic productions. ^'^ n. Literary Property at Common Law. C|. Eff"ect of Public Presentation of Play. — The exclusive common-law performing rights of the owners of an unprinted and unpublished play are not lost by public presentation. ^^a 603-la. Definition. — American Tobacco States to protection against the unauthor- Co. V. Werckmeister, 207 U. S. 284, 52 L. ized performance of a copyrighted adap- Ed. 208, 28 S. Ct. 72. tation substantially identical with the 604-12a. Effect of public presentation of original play, although in England, under play.— Ferris v. Frohman, 223 U. S. 424, 56 5 & 6 Vict. chap. 45. § 20. the first public L. Ed. 492, 32 S. Ct. 263. performance of a play is deemed equiva- Public performance in England of an lent to a publication, destroying all com- unprinted and unpublished play by English mon-law rights there. Ferris v. Frohman,. authors does not deprive the owners of 223 U. S. 424, 56 L. Ed. 492, 32 S. Ct. 263. their common-law right in the United 377 605-613 COPYRIGHT. Vol. IV. III. Copyright under the Constitution and Statutes of the United States. A. In General. — See notes 18, 19. B. What May Be Copyrighted— 3. Painting and Engr^wing. — The at- tempted duplication of an existing copyright in a painting by depositing the same photograph of the same painting under a new title, and with but a slight change in description, is void, and can not be made the basis of a suit for in- fringement."^'* C. Persons Entitled to Copyright — \. Assignee of the Author.— The legal assignee of the author is entitled to copyright.^^^ An artist may, before publication of his painting assign, independently of the ownership of the paint- ing itself, the right or privilege of taking out the copyright.^^'' 5. Citizens of a Foreign 'State. — The action of the President is a condition of the right of a foreign citizen to the benefits of the Act of March 3, 1891, § 13. giving the right of copyright to citizens of a foreign state when such state oermits to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens, or is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party, the existence of such condition to be determined by the President by proclamation, made from time to time, as the purposes of the act may require.-^^^ D. Proceedings to Obtain Copyright — 5. Notice of Copyright — a. Necessity of Notice. — Tlie statute requiring notice of copyright does not require notice of the American copyright on books published abroad and sold only for use there. ^^^ c. For))! and Essential Requisites of Notice. — In the case of a painting, in- scribing the copyright notice upon the published copies without placing such in- scription upon the original painting satisfies the requirement of the statute."^'* F. What the Copyright Protects and the Measure of Protection. — The exclusive right given to authors by federal statute,'"^ to dramatize their works, extends to the public exhibition of moving pictures of the incidents of a 605-18. Protection to copyrights wholly Campbell Art Co., 214 U. S. 236, 53 L. Ed. statutory.— While-Smith, etc., Pub. Co. v. 979, 29 S. Ct. 628, affirming 155 Fed. Rep. .\pollo Co., 209 U. S. 1, 52 L. Ed. 655, 28 'S. 116, 83 C. C. A. 576. Ct. 319. 133 O. G. 762, affirming 147 Fed. 611-65a. Notice of copyright not required Rep. 226, 77 C. C. A. 368; American To- on books published abroad.— United Dic- bacco Co. V. Werckmeister, 207 U. S. 284, tionary Co. r, Merriam Co., 208 U. S. 260, .52 L. Ed. 208, 28 S. Ct. 72, affirmmg 146 go L. Ed. 478, 28 S. Ct. 290, affirming 146 Fed. Rep 375, 76 C. C. A. 647. fed. Rep. 354, 76 C. C. A. 470. 605-19. Power to grant copyrights vested a a • w • . i . u in congress by the constitution.-Ameri- 'J" American copyright is not lost by can Tobacco Co. v. Werckmeister, 207 U. P^^blishing a work abroad and sellmg it S. 284, 52 L. Ed. 208. 28 S. Ct. 72, affirming ^°/ ""^ ^^^i"^ without inserting the notice 146 Fed. Rep. 375, 76 C. C. A. 647. i°i^/?^;nf ^s A% .""47tt Q r ""' i!' 606-33a. Painting.-Caliga v. Inter Ocean \l'\ "■ ^il^' V' ?k -'^ ^V'P ?^P- ^*- Newspaper Co.. 215 U. S. 182, 54 L. Ed. ^^^,^' P' ^^^l' f^"^* be inserted m the sev- 150, 30 S. Ct. 38, affirming 157 Fed. R. 186, f ^j copies of every edition published 84 C C A^ 634 Judgment, G. & C. Merriam Co. v. United 608-49a. Assignee of author entitled to ?^^V°."^'^^°- i^^^r? ^^^ K\-^^^' ^^ *^-^^- copyright.— American Tobacco Co. v. A. 4-0, affirmed. United Dictionary Co. Werckmeister, 207 U. S. 284, 52 L. Ed. 208, 't.^.^J"^"?, ^°- ^^^ U. S. 260, 52 L. Ed. 28 S. Ct. 72, affirming 146 Fed. Rep. 375. ^'^^ ^^ ^- ^^- ~^°- 76 C. C. .\. 647. 612-75a. Copyright notice need not be 608-49b. When artist may assign right placed upon original painting. — American of taking out copyright. — American To- Tobacco Co. v. Werckmeister, 207 U. S. bacco Co. '•. Werckmeister, 207 U. S. 284, 284, 52 L. Ed. 208, 28 S. Ct. 72, affirming 52 L. Ed. 208, 28 S. Ct. 72, affirming 146 146 Fed. Rep. 375. 76 C. C. A. 647. Fed. Rep. 375. 76 C. C. A. 647. 613-77a. Rev. Stat.. § 4952, as amended 609-51a. Conditions under which foreign by Act of March 3, 1891, ch. 565, 26 Stat, citizens may acquire copyright.— Bong v. 1106 (U. S. Comp. Stat. 1901, p. 3406). 378 Vol. IV. COPYRIGHT. 613-614 copyrighted work.'"'' The statutes so construed are not invahd as exceeding the power given to congress by the constitution'''^ to secure to authors for a Hmited time the exclusive right to their writings.''*^ The sole right to vend a copy- righted book, secured by statute to the owner of the copyright,'''^ does not in- clude the right to impose, by a notice printed on the same page with the notice of the copyright, a limitation as to the price at which the book shall be sold at retail by future purchasers with whom there is no privity of contract."^'' G. Effect of Prior Publication. — Entering an original painting with the copyright reserved at an exhibition of the Royal Academy, whose by-laws pro- hibit copying, is not such a publication as defeats the right to take out a copy- right in such painting.^2^ H. Transfer of Copyright — 1. Right to Traxsfi^r. — The author of a painting, who, not being a citizen or subject of a foreign state with which the United States has copyright relations, is excluded by federal statute^'^ from the benefit of copyright, can not convey such right to a person whose citizenship is such as to entitle him to the benefit of copyright.^^^ 35^. Construction of Instruments Transferring the Right. — Whether it was the purpose of the parties to make a complete transfer of the copyright is to be determined by construing the terms of the instrument making the transfer in the light of the attending circumstances. ^^'^ I. Infringement of Copyright — 1. What Constitutes an Infringe- ment. — See note 92. The pubhc exhibition of moving pictures of the incidents of a copyrighted book constitutes an infringement of the exclusive right given to the author by the federal statutes to dramatize his work;^-^ and the makers of moving picture films of the incidents of such a book, who sell the same with a 613-77b. What the copyright protects. — Kalem Co. z\ Harper Bros., 222 U. S. 55, 56 L. Ed. 92, 32 S. Ct. 20. affirming 94 C. C. A. 429. 169 Fed. Rep. 61. 613-77C. Art. I, § 8. 613-77d. Kalem Co. v. Harper Bros., 222 U. S. 55, 56 L. Ed. 92, 32 S. Ct. 20, affirming 94 C. C. A. 429, 169 Fed. Rep. 61. 613-77e. Rev. Stat., § 4952, U. S. Comp. Stat. 1901, p. 3406. 613-77f. No right to impose limitation as to price of book. — Bobbs-Merrill Co. v. Straus. 210 U. S. 339, 52 L. Ed. 1086, 28 S. Ct. 722. 613-83a. Effect of entering an original painting at an exhibition. — American To- bacco Co. V. Werckmeister, 207 U. S. 284, 52 L. Ed. 208, 28 S. Ct. 72, affirming 146 Fed. Rep. 375, 76 C. C. A. 647. 614-87a. Act of March 3, 1891 (26 Stats, at L. 1107. Chap. 565, U. S. Comp. Stat. 1901, p. 3406), § 13. See ante, "Citizens of a Foreign State," III, C, 5. 614-87b. Transfer by author who is a citizen of a foreign state. — Bong v. Camp- bell Art Co., 214 U. S. 236, 53 L. Ed. 979, 29 S. Ct. 628, affirming 83 C. C. A. 576, 155 Fed. R. 116. 614-90a. Construction of instrument making the transfer. — American Tobacco Co. V. Werckmeister, 207 U. S. 284, 52 L. Ed. 208, 28 S. Ct. 72, affirming 146 Fed. Rep. 375, 76 C. C. A. 647. A complete transfer of the property right of copyright existing in an original painting, and not a mere license or per- sonal privilege, must be deemed intended by an instrument executed by the artist, reciting that, for a named consideration, he transfers the copyright in his painting, where there is no evidence of any inten- tion on his part to retain any further in- terest in the copyright, and he offers the painting for sale with the copyright re- served. Judgment (1906) 146 F. 375, 76 C. C. A. 647, affirmed. American Tobacco Co. r. Werckmeister, 207 U. S. 284, 52 L. Ed. 208, 28 S. Ct. 72. 614-92. Perforated rolls vsrhich, when used in connection with mechanical piano players, reproduce in sound copyrighted musical compositions, do not infringe the copvright in such compositions, which, under Rev. St. U. S., § 4952 [U. S. Comp. St. Supp. 1907, p. 1021], secures to the composer the sole liberty of printing and reprinting, publishing, completing, copy- ing, executing, finishing, and vending the same. Judgment (1906) 147 F. 226, 77 C. C. A. 368, affirmed. White-Smith, etc., Pub. Co. V. Apollo Co., 209 U. S. 1, 52 L- Ed. 655, 28 S. Ct. 319. 614-92a. Public exhibition of moving pictures of incidents of copyrighted book. — Rev. Stat., § 4952, as amended by act March 3, 1891, ch. 565. 26 Stat. 1106 (U. S. Comp. Stat. 1901, p. 3406). Kalem Co. v. Harper Bros.. 222 U. S. 55, 56 L. Ed. 92, 32 S. Ct. 20, affirming 94 C. C. A. 429, 169 Fed. Rep. 61. 379 614-619 COPYRIGHT. Vol. IV. view to their use for dramatic reproduction, infringe such exchisive right.^-*" 2. Remedies and Procedure — b. Injunction and Accounting — (1) Right to. — See note 99. d. Penalties — (2) Penalties for an Infringement of CopyrigJit — (a) Rule Stated and Construed. — See note 16. The penalty prescribed by the statute, ^'-^^ can be recovered only for sheets found in the possession of the defendant, except in the case of infringing copies of a copyrighted painting or statute, in which case the copies need not be found in the infringer's possession in order to render him liable for the penalty imposed; the words of the statute being, "for any copy of the same in his possession, or by him sold or exposed for sale."^'*" The stat- ute contemplates but a single action, in which the offender shall be brought into court, the plates and sheets seized and adjudicated to the owner of the copy- right, and the penalty provided for by the statute recovered i^'*'^ and this is so even where the state practice affords no form of action in which the double rem- edy may be enforced, since under the broad power conferred by federal stat- ute,^ ^"^ the federal court may so frame its process and writs as to give full relief in one action. ^'^"' The remedies of forfeiture and penalty and of injunction, given by the statutes^'^' to the owner of a copyrighted map in case of infringement, are exclusive, and preclude any resort to an action at law to recover the damages sus- tained by reason of the infringement. ^^^ 614-92b. Kalem Co. v. Harper Bros., 222 of a copyright in certain engravings of an U. S. 55, 56 L. Ed. 92, 32 S. Ct. 20, affirming action of replevin not prosecuted to judg- 94 C. C. A. 429, 169 Fed. Rep. 61. ment, to enforce the forfeiture of infring- 616-99. Violation of right will be re- ing copies, precludes him from subse- strained by injunction. — Rev. Stat., § 4970. quently bringing and maintaining an Globe Newspaper Co. z'. Walker, 210 U. S. action of assumpsit to recover the penalty 356, 52 L. Ed. 1096, 28 S. Ct. 726, reversing provided for. Hills & Co. v. Hoover, 220 140 Fed. Rep. 305, 72 C. C. A. 77, 2 L. R. A. (N. S.) 913. See, generally, post, IN- JUNCTIONS. Injunctive relief will not be granted to U. S. 329, 55 L. Ed. 485, 3i S. Ct. 402. And a separate action to recover the penalty can not be maintained after judg- ment of forfeiture of the infringing copies the proprietor of a mercantile agency has already been recovered. Werckmeis- publishing at intervals a copyrighted book ter v. American Tobacco Co., 207 U. S. giving information as to the business, capital, and credit rating of merchants, manufacturers, and traders, because of the improper use of such work with respect to a few names by a corporation publishing a similar book limited to those engaged in lumber and kindred trades, where the latter book contains about 60,000 names, 375, 52 L. Ed. 254, 28 S. Ct. 124, affirming 74 C. C. A. 682, 144 Fed. 1023. 619-19d. United States Rev. Stat., § 716 (U. S. Comp. Stat. 1901, p. 580). 619-19e. Hills & Co. v. Hoover, 220 U. S. 329, 55 L. Ed. 485, 31 S. Ct. 402. The conformity "as near as may be" to the state practice, enjoined upon the fed- 25 per cent more than the former, and the ^''\ ^ict.c pia^u^c cujumeu upon u.e cu- subjects of information given b; it con- ^'^^ '"''c.^l^^om ^^ ^^I" 5'^*-' § l'^' "^ ^. cerning the persons named are six times ^"^'^P- ^,^^^- ^^^^' P- 684, does not prevent as many as are given by the other work. Dun V. Lumbermen's Credit Ass'n, 209 U. S. 20, 52 L. Ed. 663, 28 S. Ct. 335. 618-16. Forfeiture and penalty for in- fringement of copyright. — Globe News- paper Co. V. Walker, 210 U. S. 356, 52 L. Ed. 1096, 28 S. Ct. 726, reversing 140 Fed. Rep. 305, 72 C. C. A. 77, 2 L. R. A. (N. S.) 913. 619-19a. Rev. Stat., § 4965 (U. S. Comp. Stat. p. 3414). 619-19b. For what sheets or copies pen- alty is recoverable. — American Litho- graphic Co. V. Werckmeister, 221 U. S. 603, 55 L. Ed. 873, 31 S. Ct. 676. 619-19C. Statute contemplates but a single action. — Werckmeister z\ American Tobacco Co., 207 U. S. 375, 52 L. Ed. 254, 28 S. Ct. 124, affirming 74 C. C. A. 682, 144 a federal court, under the broad powers conferred by § 716 (U. S. Comp. Stat. 1901, p. 580), from framing its process and writs so as to give the full relief in one action by way of the forfeiture and penalties prescribed by § 4965 in case of the in- fringement of a copyright in engravings, although the state practice may afford no form of action in which this double rein- edy may be enforced. Hills & Co. v. Hoover, 220 U. S. 329, 55 L. Ed. 485, 31 S. Ct. 402. See ante, COURTS. 619-19f. U. S. Rev. Stat., §§ 4965, 4970, U. S. Comp. Stat. 1901, pp. 3414, 3416. 619-19g. Statutory remedies exclusive. —Globe Newspaper Co. v. Walker, 210 U. S. 356, 52 L. Ed. 1096, 28 S. Ct. 726, reversing 140 Fed. Rep. 305, 72 C. C. A. 77, 2 L. R. A. (N. S.) 913. See ante, "Injunction and Fed. 1023. Therefore the institution by the owner Accounting," III, I, 2, b. 380 Vol. IV. CORPORATIONS. CORAM NOBIS. — See ante, Appeal and Error, p. 34; post, Judgments AND Decrees. CORK.— See post, Manufacture. CORONERS. — See the title Coroners, vol. 4, p. 620, and references there given. CORPORATION COMMISSION.— See ante. Carriers, p. 216; post, Corpo- rations; Railroads; Telegraphs and Telephones. CORPORATIONS. II. Definitions, Distinctions and General Considerations, 383. A. Definitions, 383. 1. Corporation. 383. C. Corporation as Entity Distinct from Shareholders, 383. D. Governmental Regulation and Control, 383. 1. In General, 383. b. Regulation Generallv. 383. 2. By State, 383. a. Implied Power, 383. b. Reserved Power. 384. e. Corporate Books and Papers. 384. F. Corporation as Person or Citizen, 385. 1. As Person or Inhabitant, 385. a. As Person, 385. 2. As Citizen, 385. 3. As Life in Being within Rule against Perpetuities, 386. H. Dual Incorporation and Existence Out of State Granting Charter, 386. 1. Dual Incorporation, 386. a. Incorporation in More than One State, 386. (1) Statement of Principle, 386. III. Promoters and Acts Prior to Incorporation, 386. B. Promoter's Profits, 386. 1. In General, 386. 2. Contracts before Increase of Stock, 386. IV. Creation and Organization, 387. A. Power to Create, 387. 1. In General, Z^7. b. Necessity for Legislative Authority. 387. c. Power of State. 387. (2) Imposition of Conditions, 387. C. Beginning, Duration and Termination of Corporate Existence, 387. 2. Duration and Termination of Corporate Existence, 387. V. Defective and Irregular Incorporation, 387. A. De Facto Corporations, 387. VIII. Charters and Their Amendment, Repeal and Extension, 3S7. A^. Incorporation of Statutes or Documents by Reference, 387. C. Charter as Contract, and Amendment or Repeal Thereof. 388. 1. Charter as Contract Inviolable by Legislation, 388. a. In General, 388. (1) Statement of Rule, 388. (7) Charter Exemption from Taxation as a Contract, 388. 381 CORPORATIONS. Vol. IV. d. What Constitutes Impairment of the Contract, 388. (2) Alteration, Restriction or Regulation, 388. 4. Where Power Is Reserved to Amend or Repeal, 388. a. In General, 388. (4) Mode of Reservation, 388. b. Scope and Construction of Clause Reserving Right, 388. e. Extent of Right to Amend and What Constitutes Impairment, 389. (1) In General, 389. (4) Examples of Valid Regulations, 390. (7) Municipal Action as Impairment, 390. f. Construction of Amendment, 391. h. Statute in Efifect but Not in Terms an Amendment, 391. XI. Corporate Powers, 391. A. In General, 391. 1. Such as Charter and Laws Confer, 391. a. In General, 391. b. Implied Powers, 391. 2. Construction, 392. a. In General, 392. B. To Acquire, Hold and Dispose of Property, 392. 2. Power to Acquire and Hold Lands, 392. 3. Control and Disposition Thereof, 392. C. To Alienate Franchise or Property Necessary Thereto, 392. 1. Private Corporations Generally, 392. a. General Rule, 392. G. To Contract, 392. XIV. Actions by and against Corporations, 393. D. Averment and Proof of Incorporation, 393. XV. Consolidation and Succession, 393. A. Consolidation, 393. 1. Right to Consolidate and A^alidity of Consolidation, 393. a. Legislative Authority and Necessity Therefor, 393. 3. Effect on Powers, Privileges and Immunities, 393. B. Succession, 393. 4. Transfer of Rights, Privileges and Immunities, 393. a. In General, 393. XVII. Insolvency, Winding Up, Dissolution and Forfeiture, 394. B. Dissolution, Forfeiture and Ouster, 394. 3. Jurisdiction and Procedure to Ascertain and Declare, 394. a. In General, 394. b. Necessity for Judgment of Ouster, 394. 4. Causes of Dissolution and Forfeiture, 394. b. Misuser or Nonuser of Franchises, 394. C. Efifects and Consequences, 395. 5. Distribution of Assets, 395. f. Receivership, 395. CROSS REFERENCES. See the title Corporations, vol. 4, p. 621, and references there given. In addition, see ante, Appe:ai, and Error, p. 34; Bankruptcy, p. 168; Con- spiracy, p. 256; Constitutional Law, p. 264; post. Due Process op Law; Impairment oe Obligation oe Contracts; Monopolies and Corporate: Trusts; Perpetuities; Police Power; Railroads; Taxation. 382 Vol. IV. CORPORATIONS. 628-636 As to collusion in incorporation to confer or divest jurisdiction, see post, Courts. As to joint stock companies, see post, Joint Stock Companie^s. As to excise tax upon the carrying on of business in a corporate capacity, see post, RkvEnue; Laws. As to reimbursement for property destroyed during war where corporation by domicile an enemy of United States, see post. War. II. Definitions, Distinctions and General Considerations. A. Definitions — 1. Corporation. — A corporation is an artificial being, in- visible, intangible, and existing only in contemplation of law.^^ C. Corporation as Entity Distinct from Shareholders. — A corporation is, in law, a person of entity entirely distinct from its stockholders and officers.^^* It may have interest distinct from theirs. And their interests may be adverse to its. 25a Change of Members. — A corporation remains unchanged and unaffected in its identity by changes in its members. ^^t" D. Governmental Regulation and Control — 1. In General. — See post, "Implied Power," II, D, 2, a. b. Regulation Generally. — In the form of government which is typically American, the creation and control of corporations is exclusively a legislative function. 2"a Unconstitutionality as to Individuals. — The difiference between the ex- tent of the power which the state may exert over the doing of business within its borders by an individual and that which it can exercise as to corporations, furnishes a distinction authorizing a classification between the two. A want of authorized constitutional power to include individuals within the prohibitions of an act does not, therefore, affect the validity of the law as to corporations. 2^* 2. By State — a. Implied Pozver. — Equally implied is the condition that the corporation shall be subject to such reasonable regulations, in respect to the general conduct of its affairs, as the legislature may, from time to time, pre- scribe, which do not materially interfere with or obstruct the substantial en- joyment of the privileges the state has granted, and serve only to secure the ends for which the corporation was created.^^'* 628-2a. Definition. — ^Miller v. East Side, is inherently qualified by the /duty to ex- etc., Irrig. Co., 211 U. S. 293, 53 L. Ed. ecute the chartered powers conformably 189. 29 S. Ct. 111. to such reasonable police regulations as 633-23a. McCaskill Co. v. United States, may thereafter be adopted in the interest 216 U. S. 504, 54 L. Ed. 590, 30 S. Ct. 386. o^ the public welfare. Hammond Packing 633-25a. McCaskill Co. v. United States, g°- ^g ^'' cTT^O ^^^ ^' ^''' '" 216 U. S. 504 54 L Ed^ 590. 30 S. Ct^386^ ^/,f^ ^^j^ condition be not necessarily im- p'p'tvTtE COR^ORt^IONS P'-^' then the creation of corporations. PKIVAIE LOKFOKAliU-^b. ^^.-^^^ ^1^,^^^ ^^^ franchises which do not 633-25b. Change of members. — Old Do- belong to individual citizens, may become minion Copper, etc., Co. v. Lewisohn. 210 dangerous to the public welfare* through U. S. 206, 5.T L. Ed. 1025. 28 S. Ct. 634. the ignorance, or misconduct, or fraud of 634-27a. Legislative duty. — Martinez zi. those to whose management their affairs La Asociacion, etc., De Ponce, 213 U. S. are intrusted. It would be extraordinary 20, 53 L. Ed. 679. 29 S. Ct. 327. if the legislative department of a govern- 634-29a. UnconstitutionaHty as to in- ment, charged with a duty of enacting dividuals.— Hammond Packing Co. t-. Ar- such laws as may promote the health, the kansPs. 212 U. S. 322. 53 L. Ed. 530. 29 S. • morals, the prosperity of the people, Q^ 3rj-() might not, when unrestrained by constitu- n. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 978-73. Suit to enjoin taxes. — A suit to enjoin the collection of taxes on the prop- erty of an educational institution on the ground of a perpetual contract of ex- emption from taxation, protected from im- pairment by the contract clause of the federal constitution, involves the amount, essential to sustain the original jurisdic- tion of a federal circuit court, where the contract right exceeds in value that amount, although the particular tax as- sessed and levied is less than that sum. Berryman v. Board, 222 U. S. 334. 56 L. Ed. 225, 32 S. Ct. 147, reversing decree (C. C. 1907), Board of Trustees of Whitman College v. Berryman, 156 F. 112. 979-78. Joinder of interests — Parties having common interest. — Troy Bank v. Whitehead & Co., 222 U. S. 39, 56 L. Ed. 81, 32 S. Ct. 9, citing. Shields v. Thomas, 17 How. 2, 3, 15 L. Ed. 93; Rodd v. Heartt, 17 Wall. 354, 21 L. Ed. 627; Davies v. Cor- bin, 112 U. S. 36, 40, 28 L. Ed. 627, 5 S. Ct. 4; Gibson v. Shufeldt, 122 U. S. 27, 30 L. Ed. 1083, 7 S. Ct. 1066; New Or- leans Pac. R. Co. V. Parker, 143 U. S. 42, 36 L. Ed. 66, 12 S. Ct. 364; Walter v. Northeastern R. Co., 147 U. S. 370, 373, 37 L. Ed. 206, 13 S. Ct. 348; Davis v. Schwartz, 155 U. S. 631, 647, 39 L. Ed. 289, 15 S. Ct. 237; Illinois Cent. R. Co. v. Adams, 180 U. S. 28, 45 L. Ed. 410, 21 S. Ct. 251. "When several plaintiffs unite to en- force a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount." Troy Bank v. Whitehead & Co., 222 U. S. 39, 56 L. Ed. 81, 32 S. Ct. 9. The undivided interests of joint owners and holders of the bonds and coupons on which suit is brought may be united for the purpose of making up the amount necessary to give jurisdiction to a federal circuit court. Judgment (C. C. A. 1908), Thomas v. Green County, 159 F. 339, af- firmed. Green County v. Thomas, 211 U. S. 598, 53 L. Ed. 343, 29 S. Ct. 168. The value of the matter in dispute in a suit to set aside judgments of a probate court establishing claims against the es- tate of an intestate, which are a lien on his real property inherited by complain- ants, on the ground that they were fraudu- lently obtained by defendants, acting in concert, is the aggregate amount of the clamis allowed. McDaniel v. Traylor, 212 U. S. 428, 53 L. Ed. 584, 29 S. Ct. 343. An attorney for one of the claimants against a decedent's estate and for the ad- ministrator as well will not be presumed to have been acting for all the claimants in advising the administrator to allow all the claims, so as to make the aggregate aniount of the claims allowed the amount in dispute in a suit to set aside judgments of the probate court establishing claims against the estate which are a lien on the real property inherited by complain- 418 Vol. IV. COURTS. 980-991 bb. Parties Having Distinct Interests. — See note 79. Where a plaintiff is not in fact the owner of the claims sued upon, and none of the claims assigned is sufficient in amount to confer jurisdiction upon the federal court, it has no ju- risdiction, and will dismiss the case for that reason. ^^"^ Claims Assigned for Collection. — Claims or demands assigned for collec- tion only, the assignors remaining the absolute owners, and paying pro rata the expenses of collection, including costs and attorneys" fees, can not be added to the amount of the assignee's own claim to create an amount in dispute, for the express purpose of enabling suit to be brought in a Federal circuit court.^^'' (9) Proof of Value of Amount in Dispute. — Where defendants do not formally plead to the jurisdiction, it is not incumbent upon complainant to offer proof in support of the averment that the amount involved exceeds the jurisdictional amount as to each defendant. ^^^ g. Jurisdictional Averments — (1) General Rules — (a) Necessity for Aver- ment of Jurisdictional Facts. — See note 22. The jurisdiction of the court, whether dependent on diversity of citizenship alone, or on other grounds as well, must be determined from the complainant's statement of his own cause of action, as set forth in the bill, regardless of questions that may have been brought into the suit by the answers or in the course of the subsequent proceedings. -^a ants, on the ground that such judgments were fraudulently obtained by defendants, acting in concert, although he is also the attorney for several of the claimants in such suit. McDaniel v. Traylor, 212 U. S. 428, 53 L. Ed. 584, 29 S. Ct. 343. 980-79. Parties having distinct interest. —McDaniel v. Traylor, 212 U. S. 428, 53 L. Ed. 584, 29 S. Ct. 343. "When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount." Troy Bank v. Whitehead & Co., 222 U. S. 39, 56 L. Ed. 81, 32 S. Ct. 9. A suit by the assignees, respectively, of two promissory notes given for the un- paid portion of the purchase price of real property, to enforce the vendor's lien, which, under the local law, passed to the assignees as a common security for the payment of both notes, without any pri- ority of right in either assignee, involves the amount essential to sustain the juris- diction of a federal circuit court, under Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), if the in- terests of such assignees collectively equal the jurisdictional amount. Troy Bank V. Whitehead & Co., 222 U. S. 39, 56 L. Ed. 81, 32 S. Ct. 9, reversing decree (C. C. 1910), Same t'. Whitehead, 184 F. 932. 980-81a. Assignee of several claims. — • Woodside v. Beckham, 216 U. S. 117, 54 L. Ed. 408, 30 S. Ct. 367. "Thus, in Bernards Township v. Steb- bins, 109 U. S. 341, 355, 27 L. Ed. 956, 3 S. Ct. 252, it was said, 'The decision in Williams v. Nottawa, 104 U. S. 209, 26 L. Ed. 719, establishes that the circuit court of the United States can not, since the Act of 1875 [18 Stat, at L. 470, chap. 137, U. S. Comp. Stat. 1901, p. 508], entertain a suit upon municipal bonds payable to bearer, the real owners of which have transferred them to the plamtiffs of record tor the sole purpose of suing thereon in the courts of the United States for the benefit of such owners, who could not have sued there in their own names, either by reason of their being citizens of the same state as the defendant, or by reason of the insufficient value of their claims.' And so in Waite v. Santa Cruz, 184 U. S. 302, 328, 46 L. Ed. 552, 22 S. Ct. 327." Woodside v. Beckham, 216 U. S. 117, 54 L. Ed. 408, 30 S. Ct. 367. And see Craw- ford V. Neal, 144 U. S. 585, 593, 36 L. Ed. 552, 12 S. Ct. 759. 980-81b. Claims assigned for collection. — Woodside v. Beckham, 216 U. S. 117, 54 L. Ed. 408, 30 S. Ct. 367. 982-90a. Proof of value of amount in dispute.— Bitterman v. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 991-22. Necessity for averment of facts showing jurisdiction. — "It is not enough that grounds of jurisdiction other than diverse citizenship may be inferred argn- mentatively from the statements in the bill, for jurisdiction can not rest on any ground that is not affirmatively and dis- tinctly set forth." Shulthis 7;. McDougal, 225 U. S. 561, 50 L. Ed. 1205, 32 S. Ct. 704, citing Hanford v. Davies, 163 U. S. 273, 279, 41 L. Ed. 157, 16 S. Ct. 1051; Moun- tain View Min., etc., Co. v. McFadden, 180 U. S. 533, 45 L. Ed. 656, 21 S. Ct. 48S; Bankers Mut., etc., Co. v. Minneapolis, etc., R. Co., 192 U. S. 371, 385, 48 L. Ed. 4.S4. 24 S. Ct. 32.J. 991-22a. Must appear from statement in bill alone. — Shulthis v. McDougal, 225 U. S. 561, 56 L. Ed. 1205, 32 S. Ct. 704, citing 419 1008-1014 COURTS. Vol. IV, E. Supreme Court — 1. Jurisdiction — a. Original Jurisdiction — (4) To What Cases Jurisdiction Extends — (c) Cases to Which Stale Is a Party — aa. Ne- cessity for State to Be Real Party. — However, the supreme court is of the opin- ion that the constitution conferring original jurisdiction in a suit "in which a state shall be a party" is not to be interpreted as conferring such jurisdiction in every cause in which the state elects to make itself strictly a party plaintiff of record, and seeks not to protect its own property, but only to vindicate the wrongs of some of its people or to enforce it own laws or public policy against wrongdoers generally.-''^ dd. Suits betzveen States — (bb) Necessity for State to Be Pecuniarily Inter- ested. — See note 88. (dd) Nature and Object of Suit — ccc. Suits for Recovery of Debts and for Accounting. — See note 94. ee. Suits betzveen State and United States. — See note 6. ff. Suits betzveen Slates and Citizens of Other States or Aliens — (aa) Suits by State — aaa. General Rule. — See note 7. Colorado, etc., Min. Co. v. Turck, 150 U. S. 138, 37 L. Ed. 1030, 14 S. Ct. 35; Ten- nessee V. Union, etc.. Bank, 153 U. S. 454, 38 L. Ed. 511, 14 S. Ct. 654; Spencer v. Duplan Silk Co., 191 U. S. 526, 48 L. Ed. 287, 24 S. Ct. 174; Devine v. Los Angeles, 202 U. S. 313, 333, 50 L. Ed. 1046, 26 S. Ct. 652. 1008-83a. Interest of state — State elect- ing to become party. — Oklahoma z\ Atchi- son, etc., R. Co.. 220 U. S. 277, 55 L. Ed. 465, 469, 31 S. Ct. 434. "In Oklahoma v. Atchison, etc., R. Co., 220 U. S. 277, 55 L. Ed. 465, 31 S. Ct. 434, it was held that a state could not invoke the original jurisdiction of the court, by suit on its behalf, where the primary pur- pose of the suit was to pfotect its citi- zens generally, against the violation of its laws by the corporations or persons sued; that the above words, 'those in which a state shall be party,' were not to be so interpreted as to embrace suits of that kind." Oklahoma v. Gulf, etc., R. Co., 220 U. S. 290, 55 L. Ed. 469, 31 S. Ct. 437. ''Under a contrary view that jurisdic- tion could be invoked by a state, bring- ing an original suit in this court against foreign corporations and citizens of other states, whenever the state thought such corporations and citizens of other states were acting in violation of its laws to the injury of its people generally or in the aggregate; although an injury in viola- tion of law, to the property or rights of particular persons through the action of foreign corporations or citizens of states, could be reached, without the interven- tion of the state, by suits instituted by the persons directly or immediately injured." Oklahoma z: Atchison, etc., R. Co., 220 U. S. 277, 55 L. Ed. 465, 469, 31 S. Ct. 434. Suit to enjoin enforcement railroad rates. — The state of Oklahoma has no such interest in its corporate capacity as enables it to invoke the original juris- diction of the federal supreme court by a suit to enjoin a foreign railway company from charging more than certain specified rates on domestic shipments of lime, ce- ment, plaster, brick, stone, and crude and refined oil; the state not being engaged, in its governmental capacity, in the sale or transportation of such commodities, and having no property interest in them. Oklahoma v. Atchison, etc., R. Co., 220 U. S. 277, 55 L. Ed. 465, 31 S. Ct. 434. 1009-88. Sufficiency of interest of state. — The commonwealth of Virginia has a sufficient interest to enable it to maintain a suit in the federal supreme court against the state of West Virginia to determine the amount due the former state by the latter as the equitable proportion of the public debt of the original state of Vir- ginia, which was assumed by West Vir- ginia at the time of its creation as a state, although, • by reason of certain transac- tions with her creditors, Virginia may have been discharged from all liability as to West Virginia's share, other than to turn over the proceeds of the suit. Vir- ginia V. West Virginia, 220 U. S. 1, 55 L. Ed. 353, 31 S._ Ct. 330. 1011-94. Suits for recovery of debts and for accounting. — The determination of the just and equitable proportion of the pub- lic debt of the original state of Virginia which was assumed by West Virginia at the time of its creation as a state is within the original jurisdiction of the federal su- preme court, although, by Const. W. Va. 1861, art. 8, § 8, it is provided that the legislature shall ascertain the proportion as soon as may be practicable. Virginia V. West Virginia, 220 U. S. 1, 55 L. Ed. 353, 31 S. Ct. 330. 1014-6. Suits between state and United States.— Louisiana v. Garfield, 211 U. S. 70, 53 L. Ed. 92, 29 S. Ct. 31. 1014-7. Suits between states and citizens of other states or aliens. — Oklahoma t'. Gulf, etc.. R. Co., 220 U. S. 290, 55 L. Ed. 469, 31 S. Ct. 437. 420 Vol. I\'. COURTS. 1016-1025 ddd. Jurisdiction as Dependent on Nature of Relief Sought — (ccc) Actions to Enforce Penal Laws of State. — See note 17. (bb) Suits against State. — See note 22. gg. Suits betzi'een State, and Its Citizens. — See note 23. 2. Procedure — a. In Exercise of Original Jurisdiction — (2) Mode of Pro- ceeding. — See note 37. (6) Pleading — (a) In General. — And the same rule applies in a suit between t\v^o sovereign states, to determine the amount due to the plaintiff by the defend- ant as its equitable proportion of the plaintiff's public debt, which was assumed by defendant at the time of separation.'*^'' P. Court of Claims — 2. Jurisdiction — e. Xature and Extent of Jurisdiction — (1; Under Goieral Statute — (c) Actions for Torts. — See note 67. 1016-17. Action to enforce penal laws. — "The words 'in which a state shall be party,' literally construed, would embrace original suits of a civil nature brought by a state in this court to enforce a judgment rendered for a violation of its penal or criminal laws. But it has been adjudged, upon full consideration, that that result was inadmissible under the constitution. This will appear from an examination of the opinion and judgment in Wisconsin V. Pelican Ins. Co., 127 U. S. 265. 293, 32 L. Ed. 239, 8 S. Ct. 1370." Oklahoma v. Gulf, etc., R. Co., 220 U. S. 290, 55 L. Ed. 469. 31 S. Ct. 431. The federal supreme court can not take original jurisdiction of a suit by a state against persons or corporations of other states, where such suit, though in the form of a civil action, is, in its essential character, one to enforce by injunction the penal or criminal legislation of the state against traffic in intoxicating liquo'-s. Oklahoma v. Gulf, etc., R. Co., 220 U. S. 290, 55 L. Ed. 469, 31 S. Ct. 437. A state may not invoke the original jurisdiction of the federal supreme court by suit on its behalf against persons or corporations of other states, where the primary purpose of the suit is to protect its citizens generallj'' against the violation of its laws by the corporations or persons sued. Oklahoma z: Gulf, etc.. R. Co., 220 U. S. 290. 55 L. Ed. 469, 31 S. Ct. 437. 1017-22. Suits against state. — Ex parte Young, 209 U. S. 123. 52 L. Ed. 714. 28 S. Ct. 441. See, also. Hunter v. Wood, 209 U. S. 205. 52 L. Ed. 747. 28 S. Ct. 472. 1017-23. Suit between state and its citi- zens. — The eleventh amendment applies to a suit brought against a state by one of its own citizens as well as to one brought by a citizen of another state. Ex parte Young. 209 U. S. 123. 52 L. Ed. 714. 28 S. Ct. 441. 1019-37. Departure from rules to pro- mote justice. — A suit between the com- monwealth of Virginia and the state of West Virginia, to determine the amount due to the former by the latter as the equitable proportion of the public debt of the original state of Virginia, which was assumed by West Virginia at the time of its creation as a state, is to be considered by the federal supreme court in the un- technical spirit proper for dealing with a quasi international controvers}\ Virginia V. West Virginia, 220 U. S. 1, 55 L. Ed. 353. 31 S. Ct. 330. "The case is to be considered in the un- technical spirit proper for dealing with a quasi international controversy, remem- bering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that can not be dealt with by congress or disposed of by the legislature of either state alone." Virginia v. West Virginia, 220 U. S. 1, 55 L. Ed. 353, 31 S. Ct. 330. citing Missouri z'. Illinois, etc.. Dist., 200 U. S. 496, 520. 50 L. Ed. 572. 26 S. Ct. 268; Kansas 7-. Colorado. 206 U. S. 46, 84. 51 L. Ed. 956, 27 S. Ct. 655. 1021-46a. Suit to apportion public debt between states. — Objections as to multi- fariousness, laches, and the like, except so far as they affect the merits, will not be considered bj^ the federal supreme court in a suit by the commonwealth of Virginia against the state of West Virginia to de- termine the amount due to the former by the latter as the equitable proportion of the public debt of Virginia which was as- sumed bj' West Virginia at the time of its creation as a state. Virginia t. West Virginia, 220 U. S. 1. 55 L. Ed. 353, 31 S. Ct. 330. 1025-67. Actions for torts. — "Manifestly, no action can be maintained under this statute unless the United States became bound b}^ implied contract to compensate the plaintiff for the value of the property destroA'ed, or unless the case — regarding it as an action to recover damages — be one 'not sounding in tort.' " Juragua Iron Co. 7'. United States, 212 U. S, 297. 53 L. Ed. 520. 29 S. Ct. 385. See post. "Civil War Claims." VII. F, 2, e, (1^ (d) ; "Propertv to Which Government Asserts No Title?' VII. F, 2. e. Cl), CO. aa. A claim against the United States for compensation for unlawful and unneces- sarj^ destruction of property during .the war under the order of the general com- 421 1026-1039 COURTS. Vol. IV. (d) Cknl War Glaims. — See note 70. (f) Claims for Property Taken for Public Use — aa. Property to Which Gov- ernment Asserts No Title.—S&e note 82. An implied contract to pay for the use of a patent, justiciable in the court of claims, arises out of its use by the United States with the patentee's consent, and with no claim of ownership on the part of the United States, and nothing to show any intention to dispute the patentee's title.83« (2) Under Special Statutes — (a) In General. — The extent of jurisdiction of the court of claims under a special act depends, of course, upon the wording of and construction given to that particular jurisdictional act.^^^ (f) Claims by Indian Tribes.— See note 37. But the Act of March 1, 1907, manding is one "sounding in tort" within the meaning of Act March 3, 1887, c. 359, 24 Stat. 505 (U. S. Comp. St. 1901, p. 752), excluding cases of that character from the jurisdiction of the court of claims. Judg- ment, 42 Ct. CI. 99, affirmed. Juragua Iron Co. V. United States, 212 U. S. 297, 53 L. Ed. 520, 29 S. Ct. 385. The United States is not suable in the court of claims upon a claim for the value of the use by the military authorities of a Spanish merchant vessel captured in the hart)or of Santiago, since, even under the mistaken assumption that the vessel was immune from capture because of the prior capitulation of Santiago, and the president's proclamation of July 13, 1898, with respect to the rights of private prop- erty, the claim would be one "sounding in tort" within the meaning of Tucker Act March 3, 1887, c. 359, 24 Stat. 505 (U. S. Comp. St. 1901, p. 752), excluding cases of that character from the jurisdiction of the court of claims. Herrera v. United States. 222 U. S. 558, 56 L. Ed. 316. 32 S. Ct. 179. 1026-70. Civil war claims. — Juragua Iron Co. z\ United States, 212 U. S. 297. 53 L. Ed. 520. 29 S. Ct. 385. "In the circumstances disclosed by the record, it can not reasonably be said that there was, in respect of the destruction of the property in question, any 'convention between the. parties,' any 'coming together of minds,' or any circumstances from which a contract could be implied." Jur- agua Iron Co. V. United States, 212 U. S. 297, 53 L. Ed. 520, 29 S. Ct. 385, citing Rus- sell V. United States, 182 U. S. 516, 530, 45 L. Ed. 1210, 21 S. Ct. 899; Harley v. United States, 198 U. S. 229, 234. 49 L. Ed. 1029, 25 S. Ct. G34. 1029-82. Property taken for public use — Government asserting no title. — Juragua Iron Co. z: United States, 212 U. S. 297, 53 L. Ed. 520, 29 S. Ct. 385. See, also, post, EMINENT DOMAIN. 1029-83a. Implied contract arising out of use of patent. — United States 7'. Societe .A.nonyme, etc., Cail, 224 U. S. 309, 56 L. Ed. 778, 32 S. Ct. 479. 1036-18a. Extent of jurisdiction.— The jurisdiction of the court of claims, under Act Feb. 25, 1905, c. 800, 33 Stat. 815, of a claim for the value of real property in the possession of the United States, is not confined to a determination of the exist- ence of title in the claimants' grantor when the United States took possession, but extends to the question whether such grantor ratified a prior deed from her hus- band's executor, under which the United States claims, where the statute confers jurisdiction to hear the claim, and, if the court finds from the evidence on file and to be "presented on either side" that the claimants "acquired a valid title to said real property, as claimed," to award them the market value at the time possession was taken, and, in addition, states that any defense may be pleaded by the United States as defendants. Hussey v. United States, 222 U. S. 88, 56 L. Ed. 106, 32 S. Ct. 33, affirming judgment in Crane v. Same, 44 Ct. CI. 324. Infringement cases — Act of June 25, 1910.— Anj' existing federal equity jurisdic- tion of a suit against an army officer, based upon his alleged infringement of certain patents for the benefit of the United States, from which suit, by stipulation, every claim based upon the prior use of infringing devices was withdrawn, as was also the prayer for preliminary injunction and accounting, leaving in issue only the right to a permanent injunction forbidding the making of, or causing t^o be made by the defendant, -guns or gun carriages em- bodying the inventions owned by com- plainant, was ousted by the provisions of the Act of June 25, 1910 (36 Stat, at L. 851, chap. 423), that whenever an invention described in, and covered by, a patent of the United States, "shall hereafter be used by the United States without license of the owner thereof, or lawful right to use the saine, such owner may recover rea- sonable compensation for such use by suit in the court of claims," the effect of which is to provide for the appropriation of a license to use the invention, the appropri- ation thus made being sanctioned by means of the compensation for which the statute provides. Crozier t'. Krupp, 224 U. S. 290, 56 L. Ed. 771, 32 S. Ct. 488. 1039-37. Claims by Indian tribes.— Con- gress in 1896 virtually restored Indian an- nuities forfeited for participation in the 422 Vol. IV. COURTS. 1040-1053 c. 2290, 34 Stat. 1055, authorizing the court of claims to adjudicate the claims of the Sac and Fox Indians, gives individual Indians a forum in which to assert such rights as they may possess.^ ^'^ 3. Procedure — c. Evidence — (1) Ordinary Rules of Evidence Govern. — See note 65. J. State Laws as Rules of Decision in Federal Courts — 1. Statutory Provisiox. — Status of Courts. — When administering state laws and deter- mining rights accruing under those laws, the jurisdiction of the federal court is an independent one, not subordinate to, but coordinate and concurrent with, the jurisdiction of the state courts. ^'^^ 2. Reason of Rule. — Decision as Rules of Property. — Where, before the rights of the parties accrued, certain rules relating to real estate have been so established by state decisions as to become rules of property and action in the state, those rules are accepted by the federal court as authoritative declarations of the law of the state. ^"^"^ 9. Right of Federal Court to Exercise Independent Judgment — a. In Absence of Decision by State Court — (1) In General. — See note 10. Sioux outbreak of 1862, and directed the federal supreme court to ascertain the amount due. Held, that it was the inten- tion of the Jurisdictional Act (Act June ■21, 1906, c. 3504, 34 Stat. 372) that the court shall examine "all payments or other provisions of every name and nature" made to the Indians since the treaty of 1851 (10 Stat. 949), and from the nature of the same and the circumstances under which they were made determine whether the}^ are properly chargeable against the unpaid annuities granted by this treaty. Sisseton and Wahpeton Bands of Indians V. United States, 42 Ct. CI. 416, judgment affirmed in United States v. Sissetcn, etc., Indians, 208 U. S. 561, 52 L. Ed. 621, 28 S. Ct. 352. 1040-41a. Claims of individual Indians. — Sac and Fox Indians z'. Sac and Fox In- dians. 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. 1046-65. Evidence and taking proof. — Ex parte affidavits forming exhibits in de- partmental reports printed as congres- sional documents were not made evidence in a suit in the court of claims, brought under Act March 1, 1907, c. 2290, 34 Stat. 1055, b}^ the provisions of that act that such reports shall be evidence, to be given such weight as the court may determine for them. Sac and Fox Indians z\ Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 552. 31 S. Ct. 473, affirming judgment (1910) 45 Ct. CI. 287. 1049-86a. Status of courts. — Kuhn v. Fairmont Coal Co., 215 U. S. 349, 54 L. Ed. 228, 30 S. Ct. 140. 1050-87a. Decisions as rules of property. — Kuhn z\ Fairmont Coal Co., 215 U. S. 349. 54 L. Ed. 228, 30 S. Ct. 140. 1053-10. Absence of state court decision — In general — State law not settled. — \\'here the law of the state has not been settled, it is not only the right, but the 'duty, of the federal court to exercise its own judgment, as it also always does when the case before it depends upon the doctrines of commercial law and general jurisprudence. Kuhn v- Fairmont Coal Co., 215 U. S. 349, 54 h. Ed. 228, 30 S. Ct. 140. "So, when contracts and transactions are entered into and rights have accrued under a particular state of the local de- cisions, or when there has been no deci- sion by the state court on the particular question involved, then the federal courts properly claim the right to give effect to their own judgment as to what is the law of the state applicable to the case, even where a different view has been ex- pressed by the state court after the rights of parties accrued. But even in such cases, for the sake of comity and to avoid confusion, the federal court should al- ways lean to an agreement with the state court if the question is balanced with doubt." Kuhn v. Fairmont Coal Co., 215 U. S. 349, 54 L. Ed. 228, 30 S. Ct. 140. The supreme court of the United States will assume that a refusal by a purchaser in possession of personal property to pay for it, to satisfy a mortgage lien on it, or release it, unless the seller will execute another contract to his detriment, which, if persisted in, both parties understand will lead to an immediate foreclosure and the ruin of the seller, amounts to undue influence within the meaning of a state statute permitting a contract to be set aside for such cause, until the supreme court of the state says otherwise. Judg- ment, Snyder v. Stribling (1907) 89 P. 222, 18 Okl. 168, affirmed. Snyder v. Rosen- baum, 215 U. S. 261, 54 L. Ed. 186, 30 S. Ct. 73. A decision of the highest state court that the grantor in a deed conveying the coal under a tract of land, with the right to enter upon and under said land, and to mine, excavate, and remove all of the coal, 423 1055-1068 COURTS. Vol. IV. (2) Effect of Subsequent Contrary Decision by State Court. — See note 14. 13. Upon What Questions or Matters State Laws and Decisions Govern — c. Particular Questions or Matters— (I) Actions — (b) Right of Actions Given 'by State Laivs—hh. Rights of Equitable Nature.— As to jurisdiction of federal courts to enforce rights of an equitable nature given by state statute, see post, Equity. (5) Attachment and Garnishment. — The view of a territorial supreme court, that an alias attachment is not authorized by the local statutes is very persuasive upon the federal supreme court in construing such statutes.'*^^ (7) Bills, Notes and Checks. — See note 46. (10) Courts — (b) Jurisdiction. — Jurisdiction of Federal Court. — In cases which concern the jurisdiction of the federal courts, notwithstanding the pro- visions of the so-called Conformity Act, neither the statutes of the state nor the decisions of its courts are conclusive upon the federal courts.^-'' (12) Construction of State Constitution or Lazvs — (a) In General. — See note 65. (b) Construction Considered as Part of Statuic. — See note 68. can not maintain an action for damages in tort, founded upon the failure of the grantee or his successors to leave suf- ficient support to the overlying or surface land, is not binding upon the federal courts in a similar action based on al- most identical facts and circumstances, the granting clause of the two deeds be- ing in fact identical, where such decision was handed down after the deed upon which the defendant relies was executed, and after the injury complained of was sustained, and the action begun, and where the point decided had not been previously adjudged by the state supreme court. Kuhn v. Fairmont Coal Co., 215 U. S. 349, 54 L. Ed. 228, 30 S. Ct. 140. 1055-14. Subsequent contrary construc- tion. — A federal court will not follow a state decision construing a state statute in a suit involving rights which previously accrued and for the protection of which relief had previously been granted on a dififerent construction. Judgment (C. C.) Fleischmann Co. v. Murray, 161 F. 162; Wilson Distilling Co. v. Same, Id., af- firmed. (C. C. A.) Murray z\ Wilson Distilling Co., 164 F. 1, decree reversed 29 S. Ct. 458, Murray 7;. Wilson Distilling Co., 213 U. S. 151, 53 L. Ed. 742, 29 S. Ct. 458. 1062-44a. Attachment — View of terri- torial supreme court. — Crary ?'. Dye, 208 U. S. 515, 52 L. Ed. 595, 28 S. Ct. 360. See ante, APPEAL AND ERROR, p. 34. 1063-46. Bills, notes and checks. — See post, "Damages," VII, J, 13, c, (16). 1066-62a. Jurisdiction of federal court. — Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 54 L. Ed. 272, 30 S. Ct. 125. "The ultimate, determination of such questions of jurisdiction is for this court alone." Mechanical Appliance Co. v. Cas- tleman, 215 U. S. 437. 54 L. Ed. 272, 30 S. Ct. 125, citing Western Loan, etc., Co. V. Butte, etc., Min. Co., 210 U. S. 368, 369, 52 L. Ed. 1101, 28 S. Ct. 720; Mexican Cent. R. Co. v. Pinknev, 149 U. S. 194, 37 L. Ed. 699, 13 S. Ct. 859. 1066-65. Construction of state law. — The supreme court of the United States will accept the construction given to the Massachusetts statute by the state court. Boston Chamber of Commerce v. Boston, 217 U. S. 189, 54 L. Ed. 725, 30 S. Ct. 459, citing Maiorano v. Baltimore, etc., R. Co.. 213 U. S. 268, 272, 53 L. Ed. 792, 29 S. Ct. 424. The federal supreme court on writ of error to a state court will accept that court's construction of a state statute giv- ing a lien on vessels for injuries committed by them to persons or property, as in- cluding injuries to a bridge, caused by a foreign vessel engaged in interstate com- merce. Martin v. West, 222 U. S. 191, 56 L. Ed. 159, 32 S. Ct. 42. affirming judg- ment West V. Martin, 97 P. 1103, 51 Wash. 85. 21 L. R. A. (N. S.) 324. Whether the notice to a corporation to produce books and papers before a grand jury is broader than that provided for by Act Vt. Oct. 9, 1906, p. 79, No. 75, is a question of the construction of the stat- ute and of the notice, on which the deci- sion of the state court is final, and not re- viewable by the federal supreme court on writ of error. Tudgment, In re Consoli- dated Rendering Co. (Vt. 1907) 66 A. 790, affirmed. Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. Constitution or territorial statute. — The construction of a territorial statute by the local courts is of great, if not con- trolling, weight. Judgment (Ariz. 1906) 85 P. 245, affirmed. Lewis v. Herrera, 208 U. S. 309, 52 L. Ed. 506. 28 S. Ct. 412. See ante, APPEAL AND ERROR, p. 34; post. STATUTES. See ante, "Attach- ment and Garnishment," VII, J, 13, c, (5). 1068-68. The construction placed by the highest court of the state upon Laws N. Y. 1908, c. 429, enacted to safeguard 424 Vol. IV. COURTS. 1068-1077 (c) Consistency of Statute zmth State Constitution. — See note 69. (d) Construction of State Constitution — aa. In Generul.^See note 70. (f) Decision as to What Are Lazus of State — bb. Legality of Enactment. — See note 75. cc. Repeal. — See note 76. (14) Corporations — (b) Poivers. — See note 2. (c) Construction of Charter. — See note 3. natural mineral springs against waste and impairment, must be accepted by the federal courts in determining the validity of such statute under the federal constitu- tion. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. 337, affirming decree (C. C. 1909) 170 F. 1023. "That construction must be accepted by the courts of the United States, and be regarded by them as a part of the provision when they are called upon to determine whether it violates any right secured by the federal constitution." Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61. 55 L. Ed. 369, 31 S. Ct. 337, citing Weightman v. Clark, 103 U. S. 256, 260, 26 L. Ed. 392; Morley v. Lake Shore, etc., R. Co.. 146 U. S. 162. 166. 36 L. Ed. 925. 13 S. Ct. 54; Olsen v. Smith. 195 U. S. 332, 342, 49 L. Ed. 224, 25 S. Ct. 52. 1068-69. Consistency with constitution. —Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. 1069-70. Construction of state constitu- tion. — The interpretation of a state con- stitution and the conformity of an enact- ment of the state legislature to that constitution are questions solel}^ for the consideration of the state courts, whose decision thereon concludes the federal su- preme court. Judgment, In re City of Pittsburgh, 66 A. 348, 217 Pa. 227; Appeal of Hunter, Id., affirmed. Hunter f. Pitts- burgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. The policy, wisdom, justice, and fair- ness of a state statute is not subject to review or criticism by the federal supreme court. Judgment, In re City of Pitts- burgh, 66 A. 348, 217 Pa. 227; Appeal of Hunter, Id., affirmed. Hunter v. Pitts- burgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. 1070-75. Legality of enactment. — Fed- eral courts must follow the adjudications of the courts of a state upon the question as to whether a particular law of that state has been passed in such a manner as to become a valid law under the state constitution. Peters 7'. Broward, 222 U. S. 483, 56 L. Ed. 278, 32 S. Ct. 122, citing South Ottawa v. Perkins, 94 U. S. 260, 24 L. Ed. 154; Leeper v. Texas. 139 U. S. 462, 467, 35 L. Ed. 225, 11 S. Ct. 577; Board V. Coler & Co.. 189 U. S. 511, 47 L. Ed. 923, 23 S. Ct. 857. An independent judgment upon the question of the validity of a grant of lands by a state statute which the highest court of the state has held invalid be- cause the title of the act, as shown in the legislative journals, differing in this respect from the published session laws, was not broad enough to include such grant, can not be exercised by the federal courts, upon the theory that such decision was rendered after rights under such grant had arisen, where the state court, long before the statute was passed, had laid down the rule that, if the legislative journals should show that a law had not been validly enacted, this fact would be fatal. Peters v. Broward, 222 U. S. 483, 56 L. Ed. 278, 32 S. Ct. 122. 1070-76. Decisions as to repeal of state statute. — A decision of the highest state court that the Michigan Indeterminate Sentence Act (Pub. Acts 1903, No. 136), was not repealed as to those sentenced under it by Pub. Acts 1905, No. 184, will be followed by the federal supreme court on writ of error to the state court. Ugh- banks v. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. 1076-2. Corporations — Powers. — Rulings of the highest court of the state on ques- tions involving the powers of corpora- tions under the laws of that state are conclusive on the federal supreme court when reviewing the judgment of the state court. Judgment. Southern Illinois & M. Bridge "Co. v. Stone, 92 S. W. 475, 194 Mo. 175, affirmed. Stone v. Southern Illinois, etc.. Bridge Co., 206 U. S. 267. 51 L. Ed. 1057, 27 S. Ct. 615. It is for the state courts alone to decide whether the display of exterior advertise- ments upon automobile stages is ultra vires of a domestic corporation operat- ing stage routes in the streets of a city for the carriage of passengers and prop- erty for hire. Fifth Ave. Coach Co. :'. New York. 221 U. S. 467, 55 L. Ed. 815, 31 S. Ct. 709. 86 N. E. 824, 194 N. Y. 19, 21 L. R. A. (N. S.) 744, 16 A. & E. Ann. Cas. 695. which affirms 110 N. Y. S. 1037, which affirms (1908) 111 N. Y. S. 759. 1077-3. Construction of charter. — De- cisions of the highest court of the state of New York as to the construction of the charter of an insurance company ob- tained under a general law of the state are binding upon the federal courts. De- cree (1907) Brown v. Equitable Life As- 425 1079-1117 COURTS. Vol. IV. (15) Criminal Law. — The federal supreme court will follow the construction of an indeterminate sentence law by the highest court of the state, to the effect that where the maximum term of imprisonment for a crime has been fixed by statute a maximum term fixed by the court of a shorter period is simply void.^"^ (16) Damages. — See note 18. (17) Death by Wrongful Act. — So the construction of the statute as to who are included within its terms giving the right of action must be followed. ^^^ (27) Insurance — (a) Construction of Insurance Policy. — See note 70. (31) Limitation of Actions and Adverse Possession — (a) Effect of State Stat- ute on Proceedings in Federal Court — aa. In Absence of Limitations Provided by Act of Congress — (aa) In General. — See note 87. (32) Master and Servant. — See note 10. (36) Personalty — (b) Mortgages or Liens. — Or as to the validity of an un- recorded condition sale of goods delivered to bankrupts."' ^'^ (39) Real Estate — (b) Deeds — cc. Construction and Operation. — See note 64. (45) Taxation and Assessment — (a) Taxation — bb. Construction of State Lazi's as Binding Federal Courts — (aa) In General. — See note 13. sur. Societj' of United States, 151 F. 1, 81 C. C. A. 1, reversed. Equitable Life Assur. Soc. V. Brown, 213 U. S. 25, 53 L- Ed. 682, 29 S. Ct. 404. 1079-17a. Construction of indetermin- ate sentence law. — -Ughbanks v. Arm- strong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. See post, CRIMINAL LAW. 1079-18. Damages. — The decision of the highest court of a state upon the question whether or not the state statutes require claims for damages because of poor qual- ity of material for the purchase price of which a note was given to be set up in an action on the note, so as to be con- cluded by the judgment, is binding on the federal courts. Judgment, Kirven v. Virginia-Carolina Chemical Co., 58 S. E. 424, 77 S. C. 493, affirmed. Virginia-Car- olina Chemical Co. v. Kirven, 215 U. S. 252, 54 L. Ed. 179, 30 S. Ct. 78. 1079-19a. Death by wrongful act.— The -construction by the highest state court of a statute of that state creating a right of ac- tion for death in favor of the surviving relatives of the deceased as not extend- ing to such relatives as are nonresident aliens must be accepted by the federal supreme court on a writ of error to the state court. Judgment 65 A. 1077, 216 Pa. 402, 116 Am. St. Rep. 778, affirmed. Maiorano v. Baltimore, etc., R. Co., 213 U. S. 268, 53 L. Ed. 792, 29 S. Ct. 424. See post, DEATH BY WRONGFUL ACT. And see, also, ante, ADMIRALTY, p. ]0. 1088-70. Construction of insurance policy. — The meaning and construction of a policy of insurance issued by a New York company, and both executed and to be carried out in that state, as de- clared by the highest court of the state, is of most persuasive influence, even if not of binding force, in the federal courts, in the absence of any federal question arising in the case. Equitable Life Assur. Soc. z: Brown, 213 U. S. 25, 53 L. Ed. 682, 39 S. Ct. 404. 1092-87. Effect of state statute of limi- tation in federal courts. — A federal court of equity will apply, in a suit to quiet title as against the purchaser of notes for the purchase price of which a vendor's lien has attached, the rule of local law that, when a debt is barred by the statute of limitations, an action to foreclose a lien or mortgage given as security for the debt is also barred. Decree Mansur v. Dupree, 150 F. 329, 80 C. C. A. 213, re- versed. Dupree v. Mansur, 214 U. S. 161, 53 L. Ed. 950, 29 S. Ct. 548. See post, LIMITATION OF ACTIONS AND ADVERSE POSSESSION. 1096-10. Master and servant — Fellow- servants law. — The federal courts will, in cases tried in them, follow their own understanding of the common law, when no settled rule of property intervenes, in determining who are fellow servants, and will determine that question without sub- mitting it to the jury. Beutler v. Grand Trunk, etc., R. Co., 224 U. S. 85, 56 L. Ed. 679, 32 S. Ct. 402. See post, MASTER AND SERVANT. See ante, "In Gen- eral." VIII, J, 9. a, (1). 1104-41a. Validity of unrecorded con- ditional sale. — Whether a contract under which goods were delivered to bankrupts was a conditional sale, and valid without record, are questions on which a bank- ruptcy court follows local law. Judg- ment, In re E. M. Newton & Co., 153 F. 841, 83 C. C. A. 23; Swofford Bros. Dry Goods Co. V. Bryant, Id. (1907) affirmed. Bryant z: Swoflford Bros. Dry Goods Co., 214 U. S. 279, 53 L. Ed. 997, 29 S. Ct. 614. 1109-64. Deeds — Construction and op- eration. — See ante, "Reason of Rule," VII, J, 2; "In General," VII, J, 9, a. 1117-13. Construction of taxation stat- ute as binding federal court. — The con- struction by the highest state court of the 426 Vol. IV, COURTS. 1118-1127 (ee) Exemption fro)]i Taxation. — See note 19. (50) IVills — (c) Construction. — See note 45. (51) Liens and Priorities. — It will be presumed that the circuit court, in de- termining the validity of liens afiecting property in its possession, will consider the decisions of the courts of the state in which the property is situated with that respect which the decisions of the federal supreme court require.'* ^^ K. Forms and Modes of Proceeding — 3. Under Practice Conformity Act — a. I)i General. — See note 50. b. Origin and Purpose of Act. — See post, "Nature and Extent of Conformity Required," VII, K, 3, d. d. Nature and Extent of Conformity Required. — By the Practice Conformity Act it was not intended to require the adoption of the state practice where it would be inconsistent with the terms or defeat the purposes of the legislation of congress,^ ^^ but to secure on the law side of the federal courts the practice which tax imposed by Act Ky. March 28, 1906 (Acts 1906, p. 549 j, upon persons engaged in compounding, rectifying, adulterating, or blending distilled spirits, as being a license or occupation tax, and not a prop- erty tax, will be followed by the federal su- preme court. Brown-Forman Co. v. Com- monwealth, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578, affirming judgment, Brown- Foreman Co. z'. Commonwealth of Ken- tucky, 101 S. W. 321, 125 Ky. 402. 1118-19. Exemption from taxation. — The construction given by a state court to the immunity of railway companies from taxation, granted by the state con- stitution as extending to a special tax in aid of another railway company, is conclusive on the federal supreme court in determining, on writ of error to the state court, whether such constitutional provision impairs contract obligations. Arkansas, etc., R. Co. v. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56, affirming decree Louisiana & A. Ry. Co. -u. Shaw, 46 So. 994, 121 La. 997. The federal supreme court will not con- strue a state statute assessing leaseholds and making the tax a lien upon the fee as creating a lien on property exempted from taxation, and thereby violating the contract clause of the constitution when the state court has not so construed the statute and the taxing officers of the state disclaim an}- intention of so construing it or levying any tax on exempted prop- erty. Jetton z: University, 208 U. S. 489, 52 L. Ed. 584, 28 S. Ct. 375. The federal supreme court while not bound by the construction placed on a state statute by the state court, as to whether a contract was created thereby, and if so how it should be construed, gives to such construction respectful consideration, and unless plainly erroneous generally fol- lows it; a decision of the state court, however, that a leasehold interest in ex- empted propertj' can not, during the exemption, be taxed against the owner of the fee, is not authority to be followed by the federal supreme court, on the proposition that the leasehold interest can not be taxed without impairing the obligation of the contract of exemption against the lessee in his own name and against -his particular interest in the land. Jetton v. University, 208 U. S. 489, 52 L. Ed. 584, 28 S. Ct. 375. 1122-45. Construction of will. — See Kuhn V. Fairmont Coal Co., 215 U. S. 349, 54 L. Ed. 228, 30 S. • Ct. 140. See post, WILLS. No sufficient reason exists which will justify the refusal of a federal court to follow the decision of a state court that the sons of the testator took not mereh' a life estate, but a fee, subject to be de- feated only by their death without lineal descendants, under a will which, after providing that the testamentary trustees shall pay over a moiety to each son upon his attaining a specified age, states that "if either of my sons die without lineal descendants, the one surviving shall take his estate above bequeathed, and if the survivor die without lineal descend- ants, then" the estate shall go to the brothers and sisters of the testator, with a subsequent provision that nothing in the will shall be construed to deprive the sons of the power to dispose of their portions by will. Messenger v. Anderson. 225 U. S. 436, 56 L. Ed. 1152, 32 S. Ct. 739. 1122-45a. Liens and priorities. — Wabasii R. Co. c'. Adalbert College. 208 U. S. 38. 52 L. Ed. 379, 28 S. Ct. 182. 1124-50. Practice Conformity Act. — Boston, etc.. Railroad v. Cokey, 210 U. S. 155, 52 L. Ed. 1002, 28 S. Ct. 657. 1127-61a. Nature and extent of con- formity required. — Hills & Co. v. Hoover, 220 U. S. 329, 55 L. Ed. 485, 488, 31 S. Ct. 402, citing Luxton v. North River Bridge Co.. 147 U. S. 337, 338, 37 L. Ed. 194, 13 S. Ct. 356: Chapell v. United States, 160 U. S. 499, 512, 40 L. Ed. 510, 16 S. Ct. 397. "State statutes which defeat or encum- ber the administration of the law under federal statutes are not required to be followed in the federal courts." Hills & 427 1127-1159 COURTS. \o\. IV. prevails in like causes in the courts of the states. Its requirement is that such proceeding shall conform "as near as may be" to that prevailing in the state courts "in like cases. "^^'' g. Federal Jurisdiction Not Affected by State Practice — (1) In General. — See note 78. (3) State Statute Giving Special Appearanice Effect of General Appearance.— See note 80. j. With Respect to What Proceedings Conformity Is Required — (3) Appear- ance, Summons and Process — (b) Summons and Process. — The conformity re- quirement does not necessitate altering a rule of a federal circuit court as to the return day for process, adopted in conformity with a state practice then existing, so as to conform to a change in such practice made by subsequent state legisla- tion.'J^a (4) Form of Action. — See ante, "Nature and Extent of Conformity Re- quired," VII, K, 3, d. IX. Territorial Courts. C. Powers of Territorial Legislature. — See note 85. E. Jurisdiction — 1-. District Courts of Porto Rico. — See notes 3, 4. The Co. V. Hoover, 220 U. S. 329, 55 L. Ed. 485, 488, 31 S. Ct. 402, citing Mexican Cent. R. Co. f. Pinknev. 149 U. S. 194, 207, 37 L. Ed. 699, 13 S. Ct. 859. The conformity "as near as may be" to the state practice, enjoined upon the fed- eral courts by Rev. St., § 914 (U. S. Comp. St. 1901, p. 684), does not prevent a fed- eral court, under the broad powders con- ferred by section 716 . (page 580), from framing its process and writs so as to give full relief in one action by way of the forfeiture and penalties prescribed by section 4965 (page 3414), in case of the infringement of a copyright in engravings, although the state practice inay afford no form of action in which this double remedy may be enforced. Hills & Co. v. Hoover, 220 U. S. 329, 55 L. Ed. 485, 31 S. Ct. 402. 1127-61b. "Conformity" as near as may be — "In like cases." — Hills & Co. f. Hoover, 220 U. S. 329, 55 L- Ed. 485, 488, 31 S. Ct. 402. In fact, the language of the statute is itself an indication that the state prac- tice can not be at all tiines and under all circumstances complied with. It is enough if the federal courts, in adjudicat- ing the rights of parties, comply with the state practice "as near as may be." Hills & Co. V. Hoover, 220 U. S. 329, 55 L. Ed. 485, 488, 31 S. Ct. 402. "It follows that where the state statute, or practice, is not adequate to afford the relief which congress has provided in a given statute, resort must be had to the power of the federal court to adapt its practice and issue its writs and admin- ister its remedies so as to enforce the federal law." Hills & Co. v. Hoover. 220 U. S. 329, 55 L. Ed. 485, 31 S. Ct. 402. 1131-78. Federal jurisdiction not af- fected by state practice. — Western Loan, etc., Co. V. Butte, etc., Min. Co., 210 U. S. 368, 52 L. Ed. 1101, 28 S. Ct. 720. 1132-80. Effect of special appearance. — Western Loan, etc., Co. v. Butte, etc., Min. Co., 210 U. S. 368. 52 L. Ed. 1101, 28 S. Ct. 720. 1137-99a. Change in state practice. — Boston, etc., Railroad v. Gokey, 210 U. S. 155, 52 L. Ed. 1002, 28 S. Ct. 657, affirm- ing 149 F. 42, 79 C. C. A. 64. 1156-85. Power of territorial legisla- ture. — "Clearly, under these sections of the Organic Act the legislative assembly had express authority to legislate re- garding the jurisdiction and procedure of its courts. While the jurisdiction of the other courts might be changed, the proper interpretation of the statute prevents the legislative assembly from passing an act in any wise affecting the jurisdiction of the supreme court or the district courts." Ponce V. Roman Catholic Apostolic Church, 210 U. S. 296, 52 L. Ed. 1068, 1073. 28 S. Ct. 737. The power of the legislative assembly of Porto Rico to confer, by Act March 10, 1904, original jurisdiction upon the supreme court of Porto Rico for the trial and adjudication of questions between the Roman Catholic Church and the peo- ple or any municipality, affecting prop- ert}' rights, was embraced in the express authority conferred by Eoraker Act April 12, 1900, c. 191. §§ 8, 15, 33, 31 Stat. 77, to legislate regarding the jurisdiction and procedure of the Porto Rican courts. Municipality of Ponce v. Roman Catholic Apostolic Church, 210 U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. 1159-3. Jurisdiction same as circuit courts.— The Eoraker Act of 1900 (31 Stat, at L. 77, chap. 191), "gave to the district court for Porto Rico the juris- diction of the United States district 428 Vol. IV COURTS. 1159-1161 jurisdiction of such court extends to all controversies where both parties or ei- ther of them are citizens or subjects of a foreign state.'*'' A Spanish corporation is no longer a foreign citizen. Its field of opera- tion being limited to Porto Rico, the ratified treaty of peace extended to and in- cluded it.-**^ The district of Porto Rico embraces authority to entertain and dispose of all actions, whether real or personal, necessarily incidental to the accomplishment of the powers granted over estates.^'^ G. Effect of Admission of Territory as State — 2. Transfer of Pending Causes on Admission — a. Xecessity for Cause to Be Pending. — See note 9. courts, and added to that the jurisdiction of cases cognizable in circuit courts of the United States." Cuebas Y Arredondo V. Cuebas Y Arredondo, 223 U. S. 376, 56 L. Ed. 476, 32 S. Ct. 277. The jurisdiction of the district court of the United States for Porto Rico which, under the Act of March 2, 1901 (31 Stat. at L. 953, chap. 812), § 3, extends to con- troversies where the parties or either of them are citizens of the United States, or citizens or subjects of a foreign state, does not embrace a suit to foreclose a mortgage in which one of the three de- fendants is a citizen of the United States, while the other two are citizens of Porto Rico, as is also the claimant. Cuebas Y Arredondo v. Cuebas Y Arredondo, 223 U. S. 376, 56 L. Ed. 476, 32 S. Ct. 277. A mere reference in a bill in equity to the provisions of an order of the military governor of Porto Rico does not present a controversy arising under the laws of the United States, of which the federal district court for Porto Rico would have jurisdiction without regard to the citizen- ship of the parties, even if such order be treated as a law of the United States, where the bill does not call the attention of the court to a controversy arising under such order, in such a wSy as to invoke the court's action thereon. Fraenkl V. Cerecedo Hermanos, 216 U. S. 295, 54 L. Ed. 486, 30 S. Ct. 322. 1159-4. Suits between aliens. — Martinez V. La Ass'n, etc., de Ponce, 213 U. S. 20, 53 L. Ed. 679, 29 S- Ct. 327. 1159-4a. One or both parties foreigners. — Martinez :■. La Ass'n, etc., de Ponce, 213 U. S. 20, 53 L. Ed. 679, 29 S. Ct. 327. 1159-4b. Spanish corporation. — A cor- poration created by a decree of the Span- ish crown for charitable purposes, and limited in its field of operations to Porto Rico, does not continue, after the ratifica- tion of the treaty of peace between the United States and Spain, to be a citizen or subject of Spain, within the meaning of Act March a, 1901, c. 812, § 3, 31 Stat. ■953, extending the jurisdiction of the dis- trict court of the United States for Porto Rico to controversies where the parties or either of them are citizens or subjects •of a foreign state. Martinez v. La Asso- ciation, etc., de Ponce, 213 U. S. 20, 53 L. Ed. 679, 29 S. Ct. 327. A charitable corporation created by de- cree of the Spanish crown to operate in Porto Rico is not a citizen of the United States within the meaning of Act March 2, 1901, c. 812, § 3, 31 Stat. 953, extending the jurisdiction of the district court for Porto Rico to controversies where the parties or either of them are citizens of the United States, but, since the enact- ment of Act April 12, 1900, c. 191, 31 Stat. 77, establishing a civil government for Porto Rico, is, if a citizen of any country, a citizen of Porto Rico. Mar- tinez zi. La Association, etc., de Ponce, 213 U. S. 20, 53 L. Ed. 679, 29 S. Ct. 327. 1159-4C. District court of Porto Rico. — Garzot V. Rubio, 209 U. S. 283, 52 L. Ed. 794, 28 S. Ct. 548. The Porto Rican courts, as an incident of their general and probate authority and their power over all personal and real actions concerning decedents' estates, have jurisdiction to determine whether a decedent's estate has been closed by a family settlement which is attacked as fraudulent, to determine whether the property transferred to the widow by such settlement still remains a part of the estate, and to liquidate and settle the community existing between the husband and wife. Garzot v. Rubio, 209 U. S. 283, 52 L. Ed. 794, 28 S. Ct. 548. The district court of the United States for the District of Porto Rico has no jurisdiction of a bill which seeks to ad- minister decedents' estates which are open in a local court and subject to the power and authority of such court, because such bill also seeks to liquidate a community existing between husband and wife, to an- nul for fraud a family settlement of the estates, and to set aside, as simulated and fraudulent, sales made in virtue of the title apparently vested by such settle- ment, where the relief sought in this re- gard is merely ancillary to the prayer for the liquidation and settlement of the es- tates. Garzot z: Rubio, 209 U. S. 283, 52 L. Ed. 794, 28 S. Ct. 548. 1161-9. Necessity for cause to be pend- ing. — A homicide cause, the venue of which had been changed conformably to 429 1169-1171 COURTS. Vol. IV. XII. Exclusive, Concurrent and Conflicting Jurisdiction. A. Exclusive or Concurrent Jurisdiction — 1. As be^tween State and Federai, Courts — b. Suits betzvcen Citizens of Different States. — See note 52. c. Suits Arising under Constitution, Lazus or Treaties. — The rights arising under the federal employer's liability act may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is ade- quate to the occasion. ^•^'^ g. Suits in Admiralty. — See ante, Admiralty, p. 10. 4. Comity between Courts of Concurrent Jurisdiction. — See ante, "Duty to Decide Questions," VI, A. B. Conflict between Courts of Concurrent Jurisdiction — 1. Rutuntion OF Jurisdiction by Court First Acquiring It — a. In General. — See note 60. A Act June 28, 1898, c. 517, § 29, 30 Stat. 511, because of the Indian citizenship of the accused, from the United States court in the Indian territory to the Federal district court at Paris, Texas, was not pending in the United States court in the Indian territory, within the meaning of the provisions of the Oklahoma Enab- ling Act (Act June 16, 1906, c. 3335, § 20, 34 Stat. 277), as amended by Act March 4, 1907, c. 2911, § 3, 34 Stat. 1287, for the transfer to the Oklahoma courts of all cases pending in the United States courts of Oklahoma and Indian territories, not transferred to the United States circuit or district courts in the state of Okla- homa. Hendrix v. United States, 219 U. 5. 79, 55 L. Ed. 102, 31 S. Ct. 193. 1169-52. Suits between citizens of dif- ferent states. — The federal circuit court for the District of Nevada and the Cal- ifornia state courts have concurrent juris- diction to determine the relative rights of parties claiming, the one in Nevada and the other in California, to be entitled to appropriate, as against each other, the waters of an interstate stream. (1910) Rickey Land, etc., Co. v. Miller, 218 U. S. 258, 54 L. Ed. 1032, 31 S. Ct. 11, affirming decrees (1907) 152 F. 11, 22, 81 C. C. A. 207, 218. t'The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction, for both the state and fed- eral courts have certain concurrent juris- diction over such controversies, and when they arise between citizens of dif- ferent states the federal jurisdiction may be invoked, and the cause carried to judgment, notwithstanding a state court may also have taken jurisdiction of the same case." McClellan v. Carland, 217 U. S. 268, 54 L. Ed. 762, 767, 30 S. Ct. 501. 1169-53a. Suit arising under federal Employer's Liability Act. — Second Em- ployers' Liability cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. The enforcement of rights under Em- ployer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1909, p. 1171), regulating the liability of interstate railway carriers for the death or injury of their employees while en- gaged in interstate commerce, can not be regarded as impliedly restricted to the federal courts, in view of the concurrent jurisdiction provision of Judiciary Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508),- and of the amendment made by Act April 5, 1910, c. 143, 36 Stat. 291, to the original employers' liability act, which, instead of granting jurisdiction to the state courts, presup- poses that they already possess it. (1912) Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, re- versing judgment (1909) 73 A. 762, 82 Conn. 373. Jurisdiction of an action to enforce the rights arising under Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. Supp. 1909, p. 1171), regulating the liability of interstate railway carriers for the death or injury of their employees while engaged in interstate commerce, may not be declined by the courts of a state whose ordinary jurisdiction as pre- scribed by local laws is adequate to the occasion, on the theory that such statute is not in harmony with the policy of the state, or that the exercise of such juris- diction will be attended by inconvenience and confusion because of the different standards of right established by the con- gressional act and those recognized by the laws of the state. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169, reversing judgment (1909) 73 A. 762, 82 Conn. 373. 1171-60. Retention of jurisdiction. —Murphy v. Hofman Co., 211 U. S. 562, 53 L. Ed. 327, 29 S. Ct. 154; Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. The federal circuit court for the Dis- trict of Nevada, and the California state courts, having concurrent jurisdiction to determine the relative rights of parties claiming, the one in Nevada and the other in California, to be entitled to appropri- ate as against each other the waters of an interstate stream, whichever court first 430 Vol. I\^ COURTS. 1171-1173 federal court, in which is first raised the question of the validity, under the federal constitution, of a state statute, has a right to decide that question to the exclu- sion of the state courts, and may enjoin criminal proceedings subsequently com- menced under it in the state court until its duty is performed.*^*^'' b. Necessity for Identity of Causes. — See note 61. c. Property in Custody of Court — (1) General Rule. — See note 62. For the purpose of avoiding injustice which otherwise might result, a court during the continuance of its possession has, as incident thereto and as ancillary to the suit in which the possession was acquired, jurisdiction to hear and determine all ques- tions respecting the title, the possession or the control of the property.^-'' (2) Mode of Procuring Custody— (h) Seizure under Execution. — See post, Executions. (c) Seizure under Attachment. — See ante. Attachment and Garnishment, p. 156. (d) Appointment of Receiver. — As to appointment of receiver by state or federal courts, as drawing to the court making the appointment the right to de- cide all questions afifecting the receivership, see post. Receivers. d. A p plication of Rules as hetzveen State and Federal Courts — (1) In Gen- eral. — See note 70. acquires jurisdiction is entitled to pro- ceed to final determination without inter- ference from the other. (1910) Rickey- Land, etc., Co. V. Miller, 218 U. S. 2.58, 54 L. Ed. 1032, 31 S. Ct. 11, affirming de- crees (1907) 152 F. 11, 22, 81 C. C. A. 207, 218. 1171-60a. Federal question — Constitu- tionality of statute. — Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. 1172-61. Identity of causes. — The pend- ency in a state court of a suit in the na- ture of quo warranto, seeking a determi- nation as to the persons who were the true and lawful members of the board of publication of the Cumberland church after the alleged union with the Presby- terian church, is not bar to a suit in the federal courts to enforce the alleged rights of the members of the United church to control the said board, and to have the benefit of the board's property in its denominational work, regardless of the personnel of the board. Helm v. Zarecor, 222 U. S. 32, 56 L. Ed. 77, 78, 32 S. Ct. 10. 1172-62. Property in custody of court. — Murphy v. Hofman Co., 211 U. S. 563, 53 L. Ed. 327, 29 S. Ct. 154; Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. "When a court of competent jurisdic- tion has, by appropriate proceedings, taken property into its possession through its officers, the property is withdrawn from the jurisdiction of all other courts." Wa- bash R. Co. V. Adelbert College, 208 U. S. 38, 54, 52 L. Ed. 379, 28 S. Ct. 182. "The latter courts, though of concurrent jurisdiction, are without power to render any judgment which invades or disturbs the possession of the property while it is in the custody of the court which has seized it." Wabash R. Co. v. Adelbert College, 208 U. S. 38, 54, 52 L. Ed. 379, 28 S. Ct. 182. "In the courts of the United States this incidental and ancillary jurisdiction ex- ists, although in the subordinate suit there is no jurisdiction arising out of diversity of citizenship or the nature of the contro- versy." Wabash R. Co. v. Adelbert Col- lege, 208 U. S. 38, 54, 52 L. Ed. 379, 28 S. Ct. 182. 1172-62a. Right to determine title pos- session and control. — Wabash R. Co. v. Adelbert College, 208 U. S. 38, 54, 52 L. Ed. 379, 28 S. Ct. 182. 1173-70. Conflict between state and fed- eral court. — Murphy v. Hofman Co., 211 U. S. 562, 53 L. Ed. 327, 29 S. Ct. 154. "This rule has been applied by this court in many cases, some of which are cited, sometimes in favor of the jurisdic- tion of the courts of the states and some- times in favor of the jurisdiction of the courts of the United States, but always, it is believed, impartially and with a spirit of respect for the just authority of the states of the Union." Wabash R. Co. v. Adelbert College, 208 U. S. 38, 54, 53 L. Ed. 379, 28 S. Ct. 182, citing Hagan v. Lu- cas, 10 Pet. 400, 9 L. Ed. 470; Williams v. Benedict, 8 How. 107, 12 L. Ed. 1007; Wis- wall V. Sampson. 14 How. 52, 14 L. Ed. 322; Peale v. Phipps, 14 How. 367, 368, 14 L. Ed. 459; Pulliam v. Osborne, 17 How. 470, 15 L. Ed. 154; Taylor v. Carryl, 20 How. 583, 15 L. Ed. 1028; Freeman v. Howe. 24 How. 450, 16 L. Ed. 749; Buck c'. Colbath, 3 Wall. 334, 18 L. Ed. 257; Yon- ley V. Lavender, 21 Wall. 276, 22 L. Ed. 536; People's Bank v. Calhoun, 102 U. S. 256, 56 L. Ed. 101; Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672; Krippendorf v. Hyde, 110 U. S. 276. 25 L. Ed. 145, 4 S. Ct. 27; Pacific Railroad v. Missouri Pac. R. Co., Ill U. S. 505. 28 L. Ed. 498, 4 S. Ct. 583; Covell v. Hevman, 111 U. S. 176, 28 L. Ed. 390, 4 S. Ct. 355; Heidritter v. EHz- 431 1174-1176 COURTS. Vol. IV. (2) Property in Custody of Federal Court. — See note 72. (3) Property in Custody of State Court. — See note 74. (4) Conflict betzveen federal and Probate Courts. — See note 76. (5) Bankruptcy Proceedings.— See ante, Bankruptcy, p. 168. abeth Oil-Cloth Co., 112 U. S. 294, 28 L. Ed. 728, 5 S. Ct. 135; Gunibel v. Pitkin, 124 U. S. 13], 31 L. Ed. 374, 8 S. Ct. 379; John- son V. Christian, 125 U. S. .642, 31 L. Ed. 820, 8 S. Ct. 989; Morgan's, etc.. Steamship Co. V. Texas Cent. R. Co., 137 U. S. 171, 34 L. Ed. 625; Porter v. Sabin, 149 U. S. 473, 37 L. Ed. 815. "Those principles are of general appli- cation and not peculiar to the relations of the courts of the United States to the courts of the states; they are, however, of especial importance with respect to the re- lations of those courts, which exercise in- dependent jurisdiction in the same terri- tory, often over the same property, per- sons, and controversies." Wabash R. Co. V. Adelbert College, 208 U. S. 38, 54. 52 L. Ed. 379, 28 S. Ct. 182. "They are not based upon any supposed superiority of one court over the others, but serve to prevent a conflict over the possession of property, which would be unseemly and subversive of justice." Wa- bash R. Co. V. Adelbert College, 208 U. S. 38, 54, 52 L. Ed. 379. 28 S. Ct. 182. 1174-72. Property in custody of federal court. — To adjudge that certain railroad equipment bonds are a lien upon the rail- road property is beyond the power of a state court, where that court, by reasori of the possession of the res by a federal court, is without power to decree a sale of the property to satisfy the lien, and the declaration of the lien is sought only as an essential part of the order of sale. Wabash R. Co. v. Adelbert College, 208 U. S. 38, 52 L. Ed. 379, 28 S. Ct. 182, denied. S. C, 208 U. S. 609, 52 L- Ed. 642. 28 S. Ct. 425. 1175-74. Property in custody of state court. — Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230, modifying 158 Fed. 705. 1176-76. Conflict between federal and probate court. — A suit within the original jurisdiction of a federal circuit court, to have the complainants adjudicated to be the heirs at law and next of kin of a dece- dent, can not be stayed by that court to await the commencement and prosecution to final determination of a suit to be brought in a state court, on behalf of the state, to determine an escheat of the es- tate. McClellan v. Carland, 217 U. S. 268, 54 L. Ed. 762, 30 S. Ct. 501. A federal court of chancery has jurisdic- tion, where the proper diversity of citizen- ship exists, to determine the interest of an heir in an alleged lapsed legacy and the consequent increase in the residuary es- tate, although the bill also asks other relief which can not be granted because it would interfere with the ordinary settlement of the estate in the state probate court. Waterman v. Canal-Louisiana Bank, etc., Co., 215 U. S. 33, 54 L. Ed. 80, 30 S. Ct. 10. "While the court could make no decree which would interfere with the possession of the probate court, it had jurisdiction to entertain the bill and to render a judgment binding upon the parties." Waterman v. Canal-Louisiana Bank, etc., Co., 215 U. S. 33, 54 L. Ed. 80, 30 S. Ct. 10. "The right of the circuit court to main- tain such actions, notwithstanding the legislation of the state creating probate courts, has been so recently before this court as to require no further considera- tion now. Waterman v. Canal-Louisiana Bank, etc., Co., 215 U. S. 33, 54 L. Ed. 80, 30 S. Ct. 10. In that case, following pre- vious decisions of this court, it was held that the chancery jurisdiction of the fed- eral courts to entertain suits between citizens of different states to determine interests in estates, and to have the same fixed and declared, having existed from the beginning of the federal government, and created by the grant of equity juris- diction to such courts as it existed in the chancery courts of England, could not be impaired by subsequent state legislation creating courts of probate. The action was therefore within the jurisdiction of the circuit court of the United States." McClellan r. Carland, 217 U. S. 268, 54 L. Ed. 762, 30 S. Ct. 501. The jurisdiction of a federal circuit court of a controversy between citizens of dif- ferent states, presented by a bill which seeks to declare and foreclose an attor- ney's lien upon certain interests in the dis- tributive shares of the property of a de- cedent within the district, is not defeated because the settlement of the estate is pending in a state probate court, where no interference with that court is sought or decreed, and rights between the parties arising from their transactions and con- tracts are adjudged and are decreed to be redressed only when the probate court shall have finishecj its functions. Decree, Coram v. IngersoU (1906), 148 Fed. 169, 78 C. C. A. 303, reversed. IngersoU v. Co- ram. 211 U. S. 335, 53 L. Ed. 208, 29 S. Ct. 92. "In Byers v. McAuley, 149 U. S. 608, 37 L. Ed. 867, the rule was thus tersely stated by Mr. Justice Brewer, delivering the opinion of the court: 'A citizen of another state may establish a debt against the es- tate. Yonley v. Lavender, 21 Wall. 276, 22 L. Ed. 536; Hess i'. Reynolds, 113 U. S. 73, 38 L. Ed. 927, 5 S. Ct. 377. But the debt thus established must take its place 432 Vol. V. CREDITORS. 1177-21 (6) In Criminal Cases. — As to conflicting and concurrent jurisdiction be- tween state courts or between state and federal courts, between federal and territorial courts or between federal and territorial courts and courts of the Indian tribes, in criminal cases, see post. Criminal Law. As to habeas corpus from federal to state courts, see post, Habeas Corpus. 2. Termination of Proceeding in Court First xAcquiring Jurisdiction. — When the property passes out of the actual possession of the United States courts, in conformity with their decrees, into the hands of the purchasers under the decrees, the exclusive jurisdiction of the United States courts comes to an end.''*'' But the court may part with the possession of the property only condi- tionally, and preserve complete control over it, and full jurisdiction over the claims which might be against it."^*" C. Conflict between Civil and Military Courts. — See post, Military Law. COURTS-MARTIAL,— See post, Military Law. COVENANT, ACTION OF.— See the title Covenant, Action oe, vol. 5, p. 1, and references there given. COVENANTS. — See the title Covenants, vol. 5, p. 5, and references there given. COVERTURE.— See post. Husband and Wife. CREDIT. — See ante. Banks and Banking, p. 184: post, Set-Off, Recoup- ment and Counterclaim. As to full faith and credit clause, see post, Foreign- Judgments, Records and Judicial Proceedings. CREDITORS.— See note 1. and share of the estate as administered by the probate court; and it can not be en- forced by process directly against the property of the decedent. Yonley z'. Lav- ender, supra. In like manner, a distrib- utee, citizen of another state, may estab- lish his right to share in the estate, and enforce such adjudication against his ad- ministrator personally, or his sureties (Payne v. Hook, 7 Wall. 425. 19 L. Ed. 260); or against any other parties subject to liability (Borer v. Chapman. 119 U. S. 587, 30 L. Ed. 532, 7 S. Ct. 342), or in any other way which does not disturb the pos- session of the property by the state court.' " Waterman v. Canal-Louisiana Bank, etc., Co., 215 U. S. 33, 54 L. Ed. 80, 30 S. Ct. 10. 1177-78a. When exclusive control ceases. — Wabash R. Co. r. Adelbert Col- lege, 208 U. S. 38, 46, 52 L. Ed. 379, 28 S. Ct. 182. As to the termination of custody of property in hands of receiver, see post, RECEIVERS. 1177-78b. Parting with possession condi- tionally.— Wabash R. Co. z'. Adelbert Col- lege. 208 U. S. 38, 53, 52 L Ed. 379, 28 S. Ct. 182. The exclusive jurisdiction of a federal circuit court arising out of the possession of the res in a suit to foreclose a railroad mortgage may be so continued, after the delivery of the property to the purchaser tinder the foreclosure decree and the dis- charge of the receiver, by reserving in such decree jurisdiction over the property and claims in respect to it, and the right to take it again' into possession and exer- 12 U S Enc— 28 433 cise again the power of sale, as to pre\ent a state court from thereafter decreeing a sale of the property to satisfy the lien of certain equipment bonds in a suit begun before the property was taken into posses- sion of the federal court. Decree (Sup. 1906), 78 N. E. 1141, 74 Ohio St. 483. re- versed. Wabash R. Co. v. Adelbert Col- lege, 208 U. S. 38. 52 L. Ed. 379, 28 S. Ct. 182. rehearing denied. S. C, 208 U. S. 609, 52 L. Ed. 642, 28 S. Ct. 425. "The effect of reservations in a decree of foreclosure, which to say the least were no broader than those in this decree, was before the court in Julian v. Central Trust Co., 193 U. S. 93, 48 L. Ed. 629. The res- ervations in that case are stated on page 110, and of them the court said, p. Ill: 'It is obvious that by this decree of sale and confirmation it was the intention and pur- pose of the federal court to retain juris- diction over the cause so far as was necessary to determine all aliens and de- mands to be paid by the purchaser.' " Wa- bash R. Co. z: Adelbert College, 208 U. S. 38, 56, 52 L. Ed. 379, 28 S. Ct. 182. 21-1. Bankruptcy. — Within the terms of the bankrupt law, a creditor is defined to include any one who owns a demand or claim provable in bankruptcy. Richard- son c'. Shaw, 209 U. S. 365. 52 L. Ed. 835, 28 S. Ct. 512. See ante. BAX'KRUPTCY, p. 168. Chattel mortgages. — As to the meaning of creditors as used in the statute requir- ing recordation of chattel mortgages, see ante, CH.\TTEL MORTGAGES, p. 230. CRIMINAL LAW. Vol. V. CREDITORS' SUITS.— See the title Creditors' Suits, vol. 5, p. 22, and ref- erences there given. CRIMES.— See post, Criminal Law. CRIMINAL CONSPIRACY.— See ante. Conspiracy, p. 256. CRIMINAL LAW. I. Definitions and Terminology, 435. III. Power to Define and Prevent Crime, and to Ordain Its Punishment, 435. A. Power of Courts and Legislature Respectively, 435. 2. Power to Punish Separate Parts of Transaction, 435. B Power of the States, 436. 1. In General, 436. 4. Concurrent Power of Different States over Rivers, etc., 436. IV. Existence and Enactment of Criminal Law, 436. C. Adoption of Law of State for Place within Exclusive Jurisdiction of United States, 436. V. Definition, Nature, Elements and Classification of Offenses and De- fenses, 438. B. Elements of Offenses, 438. 1. Prohibition by Law Essential, 438. 3. Legal Capacity, 438. e. Corporations, 438. 4. Intent, 439. 6. Motive, 439. 11. Demand, 439. 12. Relation to Similar Transactions in Time and Place, 439. C. Classification of Offenses, 439. 2. Felonies and Misdemeanors, 439. b. Misdemeanors, 439. D. Facts Relieving from Criminal Responsibility or Defenses, 440. 5. Ignorance, Alistake and Accident, 440. 11. Turning States' or United States' Evidence, 440. 15. Acting for Another for Hire, 440. VI. Jurisdiction, 440. D. Jurisdiction as Determined by Locality of Oft'ense, 440. 3. Crimes Committed in Places within Exclusive Jurisdiction of United States, 440. c. Oft'enses in Forts, Arsenals and Like Places, 440. 4. Offenses on Navigable Waters, 441. b. Under the Federal Statutes, 441. (1) Offenses on the High Seas, or in Any River, Haven, Bay, etc., 441. (b) Out of Jurisdiction of Any Particular State, 441. aa. In General, 441. (c) Within the Limits of Any Particular State, 442. aa. United States Courts, 442. (aa) In General, 442. 9. Conspiracy against United States, 442. E. Granting, Limiting and Redistributing Jurisdiction, 442. 1. Crimes Previously Committed, 442. F. Exclusive, Concurrent and Conflicting Jurisdiction, 443. 1. General Rules and Principles Applicable, 443. 434 Vol. V. CRIMINAL LAW. 51 a. Exclusive and Concurrent Jurisdiction, 443. 5. Crimes in Territories, 443. H. Divestit^ire and Loss of Jurisdiction, 443. Vni. Prosecution, 444. D. Limitations, 444. 2. When Statute Begins to Run, 444. 3. How Availed of, 444. a. By Special Plea or by Evidence under General Issue, 444. E. Transfer of Accused to Other Federal District, 444. ^I. Arraignment and Plea, 449. L Arraignment, 449. a. What Constitutes, 449. c. Stating on the Record, 450. 2. Plea, 450. a. In General, 450. b. Necessity and Waiver, 450. c. Particular Pleas, 450. (5) Special Pleas in Bar, 450. (a) In General, 450. (b) Pleading Over after Issue Found against Accused, 450. d. Time and Order, 45L O. Copy of Indictment, List of Jurors and of the Witnesses. 451. OYz. List of Witnesses Who Appeared before Grand jurv, 451. P. Trial, 451. 5. Requisites of \'alid Trial, 451. c. Observance of Rights of Accused, 451. (2) Waiver of Rights, 451. 7. Province and Duties of Court and Jury, 451. a. Question of Law and Fact, 451. (3) Questions for the Jury, 451. 8. Evidence, 452. d. Admissibility and Weight, 452. (13) Testimony of Accused at Preliminarv Examination, 452. (14) Prima Facie Evidence, 452. e. Proof of Elements of Offense, 452. (2) Intent, 452. (3) Alotive, 452. f. Testimony of Accused, 452. CROSS REFERENCES. See the title Criminal Law, vol. 5, p. 43, and references there given. In addition, see ante, Conspir-\cy, p. 256; post, Forge:ry and Couxterfsit- ixg; Indians; Intoxicating Liquors; Police Power. I. Definitions and Terminology. Malum in Se and Malum Prohibita. — See post, "Intent," V, B, 4. in. Power to Define and Prevent Crime, and to Ordain Its Punishment. A. Power of Courts and Legislature Respectively — 2. Power to Pun- ish Separate Parts of Transaction.— See note 16. 51-16. Power to punish separate parts punish not onlj' a completed act, but also acts of transaction. — Flemister v. United which attempt to bring about the pro- States, 207 U. S. 372, 52 L. Ed. 252, 28 S. hibited result." Waters-Pierce Oil Co, v. Ct. 129. Texas. 212 U. S. 86, 53 L- Ed. 417, 29 S. "It is not uncommon in criminal law to Ct. 220. 435 52-58 CRIMINAL LAW. Vol. V. B. Power of the States — 1. In Ge:ne;rai,. — The legislature may enjoin, per- mit, and punish ; they may declare new crimes and establish rules of conduct for all citizens in future cases. ^'^'^ ' 4. Concurrent Power of Different States over Rivers, etc. — Concurrent criminal jurisdiction of different states over rivers is familiar to the state legis- lature and means the jurisdiction of two powers over the same place. It extends to civil as well as criminal matters, and is broadly a grant of jurisdiction to each of the states. 1'^^ Where an act is malum in se, prohibited and punishable by the laws of both states, the one first acquiring jurisdiction of the person may prose- cute the offense, and its judgment is a finality in both states, so that one convicted or acquitted in the courts of the one state can not be prosecuted for the same of- fense in the courts of the other. Doubtless the same rule would apply if the act were prohibited by each state separately. ^^"^ But one state can not punish crim- inally an act authorized by and done within the limits of the other state.^^*; IV. Existence and Enactment of Criminal Law. C. Adoption of Law of State for Place within Exclusive Jurisdiction of United States.— Congress by § 5391, Rev. Stat. (U. S. Comp. Stat. 1901 p. 3651) has adopted the penal code of the states in respect to oft'enses committed in forts, dock yards, navy yards and other places ceded to the United States, where the offense is not prohibited, or the punishment thereof is not specially provided for by any law of the United States.'*'^^ The operation of this act was 52-17a. Nielsen v. Oregon, 212 U. S. 315, 53 L. Ed. 528. 29 S. Cl. 383. 52-19a. Concurrent powers of different states.— Nielsen v. Oregon, 212 U. S. 315, 53 L. Ed. 528, 29 S. Ct. 383. See. also, post, JURISDICTION. "One purpose, perhaps the primary pur- pose, in the grant of concurrent jurisdic- tion, was to avoid any nice question as to whether a criininal act sought to be prose- cuted was committed on one side or the other of the exact boundary in the chan- nel, that boundary sometimes changing by reason of the shifting of the channel." Nielsen v. Oregon, 212 U. S. 315, 53 L. Ed. 528, 29 S. Ct. 383. 52-19b. Nielsen v. Oregon, 212 U. S. 315, 53 L. Ed. 528, 29 S. Ct. 383. 52-19C. Power to punish act authorized by other state. — The state of Oregon can not, by virtue of its concurrent jurisdic- tion, under the Act of Congress of Feb- ruary 14, 1859 (11 Stat, at L. 383, chap. 33), over the Columbia river, make crimi- nal the operation of a purse net in that river within the territorial limits of the state of Washington, under authority and license from that state. This is not a prosecution for an act malum in se but for one simply malum prohibitum. Niel- sen V. Oregon, 212 U. S. 315, 53 L. Ed. 528, 29 S. Ct. 383. . "For an act done within the territorial limits of the state of Washington, under authority and license from that state, one can not be prosecuted and punished by the state of Oregon." Nielsen v. Oregon, 212 U. S. 315, 53 L. Ed. 528, 29 S. Ct. 383. 58-47a. Adoption of law of state for places within exclusive jurisdiction of United States. — United States v. Press Pub. Co.. 219 U. S. 1. 55 L. Ed. 65, 31 S. Ct. 212; Western Union Tel. Co. v. Chiles, 214 U. S. 274, 53 L. Efl. 994, 29 S. Ct. 613. The third section of the .A.ct of March, 1825, "came under consideration in United States V. Paul, 6 Pet. 139, 8 L. Ed. 348, and it was held that its provisions referred only to the laws of the states existing at the time of the passage of the act; that is, those which were in force on March 3, 1825." United States v. Press Pub. Co., 219 U. S. 1, 55 L. Ed. 65, 31 S. Ct. 212; Franklin v. United States, 216 U. S. 559, 54 L. Ed. 615, 30 S. Ct. 434. "It is undoubted, as pointed out in Franklin v. United States, 216 U. S. 559, 54 L. Ed. 615, 30 S. Ct. 434 * * *, that the forerunner of the Act of 1898 was the Act of March 3, 1825 (chap. 65, 4 Stat, at L. 115). since the Act of 1898 is virtually a repetition of the Act of 1825, except as to provisions plainly inserted merely for the purpose of bringing under the sway of the act United States reservations which, on account of the restrictive terms of the .\ct of 1825, were not embraced within the sphere of its operations." United States V. Press Pub. Co., 219 U. S. 1. 55 L. Ed. 65, 31 S. Ct. 212. The efifect of the Act of July 7, 1898 (30 Stat, at L. 717, § 2, chap. 576, U. S. Comp. Stat. 1901, p. 3652). "as pointed out in Franklin v. United States, 216 U. S. 559, 569, 54 L. Ed. 615, 30 S. Ct. 434, was to incorporate the criminal laws of the several states, in force on July 1, 1898, into the statute, and to make such crimi- nal laws, to the extent of such incorpora- tion, laws of the United States." United States c'. Press Pub. Co., 219 U. S. 1, 55 L. Ed. 65, 31 S. Ct. 212. 436 Vol. V. CRIMINAL LAU 58 first limited to places ceded to the United States prior to tl:e enactment of the Act of 1825;^'^'' the Act of April 5, 1866, extended its operation to any place ceded to the United States or which should thereafter be ceded i"*"^^ and the Act of July 7, 1898 (30 Stat, at L. 717, § 2, chap. 576, U. S. Comp. Stat. 1901, p. 3652) further extended it to embrace reservations which had been carved out of the public domain."*"^" Crimes Punishable and Extent of Punishment.^— This act exclusively relates to offenses committed on United States reservations, etc., which are not provided for by any law of the United States, and as to such offenses the state law, when they are by that law defined and punished, is adopted and made appli- cable. That is to say, while the statute leaves no doubt where acts are done on reservations which are expressly prohibited and punished as crimes by a law of the United States, that law is dominant and controlling, yet, on the other hand, where no law of the United States has expressly provided for the punishment of offenses committed on reservations, all acts done on such reservations which are made criminal by the laws of the several states are left to be punished under the applicable state statutes.'*'^ Where the state laws afford adequate punishment for the offense, without resorting to the federal courts, the plain purpose is that there shall be but a single prosecution and conviction.^" ^ 58-47b. In United States v. Paul, 6 Pet. 139, 141, 8 L. Ed. 348, "in considering the words 'whereof is ceded,' in the first sec- tion of the Act of March, 1835, it was held that those words limited the operation of the act to places which had been ceded to the United States prior to the enactment of the Act of 1825." United States v. Press Pub. Co., 219 U. S. 1, 55 L. Ed. 65, 31 S. Ct. 212. 58-47C. "By the second section of the Act of April 5, 1866 (chap. 24, 14 Stat, at L. 13, U. S. Comp. Stat. 1901, p. 3651), congress substantially re-enacted the third section of the Act of 1825, changing, however, its phraseology so as to cause its provisions to apply not only, as did the Act of 1825, to a place ceded to the United States, but to 'any place which has been or shall hereafter be ceded.' As thus adopted, the act passed into the Revised Statutes as § 5391 (U. S. Comp. Stat. 1901, 'p. 3651), and continued in force until the passage of the Act of 1898." United States V. Press Pub. Co., 219 U. S. 1, 55 L. Ed. 65, 31 S. Ct. 212. 58-47d. Act of July 7, 1898.— The Act 1898 in efifect re-enacting § 5391, U. S. Rev. Stat. (U. S. Comp. Stat. 1901, p. 3651), "makes no substantial change con- cerning the fundamental scope and pur- pose of the prior statute, since it simply enlarged the extent of its operation by causing the statute not only to embrace reservations which had been ceded to the United States, but those which had been carved out of the public domain." United States V. Press Pub. Co., 219 U. S. 1, 55 L. Ed. 65, 31 S. Ct. 212; Frankiin ly. United States, 216 U. S. 559, 54 L. Ed. 615, 30 S. Ct. 434. 58-47e. Crimes punishable and extent of punishment. — United States v. Press Pul). Co., 219 U. S. 1, 55 E. Ed. 65, 31 S. Ct. Punishment in the federal courts as an ofifense against the United States, but only in the way and to the extent that such ofifense would have been punishable if the territory embraced by the government reservation where the crime was com- mitted had remained subject to the juris- diction of the state, is what was intended by Act July 7, 1898, c. 576, § 2, 30 Stat. 717 (U. S. Comp. St. 1901, p. 3652), adopt- ing such punishment for offenses com- mitted in places under the exclusive juris- diction and control of the United States as the laws of the state in which such places are situated now provide for a like offense, the punishment therefor not being otherwise provided for by any law of the United States. United States v. Press Pub. Co., 219 U. S. 1, 55 L. Ed. 65, 31 S. Ct. 212. 58-47f. Where state law affords ade- quate punishment. — The circulation in the government reservation at West Point and in the postoffice building in New York City of copies of a newspaper containing a criminal libel printed and primarily pub- lished in such city can not be punished in the federal courts under Act July 7, 1898, c. 576, § 2, 30 Stat. 717 (U. S. Comp. 1901, p. 3652), providing that offenses com- mitted in places under the exclusive ju- risdiction and control of the United States, when not expressly made criminal by any law of the United States, shall be pun- ished in accordance with the laws of the state in which such places are situated, since the state laws afford adequate pun- ishment for the ofifense, without resorting to the federal courts, and the plain pur- pose is that there shall be but a single prosecution and conviction for a criminal 437 59-60 CRIMINAL LAW. Vol. V. V. Definition, Nature, Elements and Classification of Offenses and Defenses. B. Elements of Offenses — 1. Prohibition by Law Essential. — See note 53. 3. Legal Capacity — e. Corporations. — Some of the earlier writers on com- mon law held the law to be that a corporation could not commit a crime.^'"' The modern authority, universally, so far as known, is the other way.^^'' It is true that there are some crimes which, in their nature, can not be committed by corporations. But there is a large class of ofifenses wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes there is no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them. If it were not so, many offenses might go unpunished and acts be committed in violation of law where, as in the present case, the statute re- quires all persons, corporate or private, to refrain from certain practices, for- bidden in the interest of public policy. ^^'^ Rebating under the Federal statute is one of that class of oft'enses in which the corporation may be held responsible for and charged with the knowl- edge and purpose of its agents within the authority conferred upon them.^^"^ libel. United States v. Press Pub. Co., 219. U. S. 1, 55 L. Ed. 65, 31 S. Ct. 212. "We do not now intimate that the rule which in this case has controlled our de- cision would be applicable to a case where an indictment was found in a court of the United States for a crime which was wholly committed on a reservation, disconnected with acts committed within the jurisdiction of the state, and where the prosecution for such crime in the courts of the United States, instead of be- ing in conflict with the applicable state of law, was in all respects in harmon> therewith." United States v. Press Pub. Co., 219 U. S. 1. 55 L. Ed. 65, 31 S. Ct. 212. 59-53. Violation of regulation of depart- ment. — Where an act of congress fixes the penalty for a violation of reasonable rules to be promulgated by an executive officer, as for instance the secretary of agricul- ture, a violation of such rules is made a crime, not by the secretary, but by con- gress. United States v. Grimand, 220 U. S. 506. 55 L. Ed. 563, 31 S. Ct. 480. See, also, Haas v. Henkel. 216 U. S. 462, 480, 54 L. Ed. 569, 30 S. Ct. 249. See ante, CONSTITUTIONAL LAW, p. 264. 60-58a. Corporation. — "It is said to have been held bj' Lord Chief Justice Holt (Anonymous. 12 Mod. -559) that 'a cor- poration is not indictable, although the particular members of it are.' In Black- stone's Commentaries, chap. 18, § 12, we find it stated: 'A corporation can not commit treason, or felony, or other crime in its corporate capacity, though its members may, in their distinct individual capacities.' " New York Cent., etc., R. Co. V. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304. 60-58b. Modern authority. — "In con- sidering the subject, Bishop's New Crimi- nal Law, § 417, devotes a chapter to the capacity of corporations to commit the crime, and states the law to be: 'Since a corporation acts by its officers and agents, their purposes, motives, and in- tent are just as much those of the cor- poration as are the things done. If, for example, the invisible, intangible essence or air which we term a corporation can level mountains, fill up valleys, lay down iron tracks, and run railroad cars on them, it can intend to do it, and can act therein as well viciously as virtuously.' Without citing the state cases holding the same view, we may note Telegram Newspaper Co. V. Com., 172 Mass. 294, 44 L. R. A. 159, 70 Am. St. Rep. 280, 52 N. E. 445, in which it was held that a corporation was subject to punishment for criminal con- tempt; and the court, speaking by Mr. Justice Field, said: 'We think that a cor- poration may be liable criminally for cer- tain offenses of which a specific intent may be a necessary element. There is no more difficulty in imputing to a corporation a specific intent in criminal proceedings than in civil. A corporation can not be arrested and imprisoned in either civil or criminal proceedings, but its property may be taken either as compensation for a private wrong or as punishment for a public wrong.' It is held in England that corporations may be criminally prosecuted for acts of misfeasance as well as non- misfeasance. R. V. Great North of Eng- land R. Co., 9 Q. B. 315." New York Cent., etc., R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304. 60-580. New York Cent., etc., R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304. 60-58d. Rebating. — "We see no valid objection in law, and every reason in pub- lic policy, why the corporation, which 438 Vol. V. CRIMINAL LAW. 63-66 4. Intknt. — See post, "QJuestions for the Jury," VIII, P, 7, a., (3) ; "Intent," VIII, P, 8, e, (2). Where Act Prohibited and Punished by Statute. — See note 69. 6. Motive.— See post, "Intent," VIII, P, 8, e, (2). 11. Demand. — In the civil courts constructive demands may be and are recog- nized, but not so in a criminal court, in the prosecution for an offense having as one of its statutory ingredients a refusal to pay on demand. A demand there means actual demand. ^"^^ 12. Relation to Similar Transactions in Time and Place. — In larceny, if the goods stolen at one time belonged to several persons, the offense is single; and, on conviction for working on Sunday, there is only one breach of the stat- ute, the penalty for w^hich can not be multiplied by the number of items of work done on the day of rest. But this does not mean that if the thief should, at a different time, steal property from the same place, he could not be punished for the new transaction, nor that because a man had been convicted for working on one Sunday, he could not be convicted and punished for subsecjuently working on a different Sunday. For every penal statute must have relation to time and place, and corporations whose operations are conducted over a large territory, by many agents, may commit offenses at the same time in different places, or in the same place at different times. '**^'' C. Classification of Offenses — 2. Fe:lonies and Misde^meanors — b. Mis- demeanors. — See note 91. profits by the transaction, and can only act through its agents and officers, shall be held punishable by fine because of the knowledge and intent of its agents to whom it has entrusted authority to act in the subject matter of making and fixing rates of transportation, and whose knowl- edge and purposes may well be attributed to the corporation for which the agents act. While the law should have regard to the rights of all, and to those of cor- porations no less than to those of in- dividuals, it can not shut its eyes to the fact that the great majority of business transactions in modern times are con- ducted through these bodies, and particu- larly that interstate commerce is almost entirely in their hands, and to give them immunity from all punishment because of the old and exploded doctrine that a cor- poration can not commit a crime would virtually take away the only means of eflFectually controlling the subject matter and correcting the abuses aimed at." New York Cent., etc., R. Co. v. United States, 212 U. S. 481, 53 Li. Ed. 613, 29 S. Ct. 304. "Applying the principle governing civil liability, we go only a step farther in holding that the Act of the agent, while exercising the authority delegated to him to make the rates for transportation, may be controlled, in the interest of public policy, by imputing his act to his em- ployer and imposing penalties upon the corporation for which he is acting in the premises." New York Cent., etc., R. Co. z: United States. 212 U. S. 481, 53 L. Ed. 613. 29 S. Ct. 304. 63-69. Where an act is prohibited and punishable by statute. — The elimination of intent by a state police statute as an element of an offense, is not contrary to the requirements of due process of law. The legislature may by its fiat make an act otherwise innocent a crime, and pun- ishable as such. To hold otherwise would destroy the well-recognized distinction be- tween mala in se and mala prohibita. Shevlin-Carpenter Co. v. Minnesota, 218 U. 8. 57, 54 L. Ed. 930, 30 S. Ct. 663. 64-80a. Demand. — Shoener v. Pennsyl- vania, 207 U. S. 188, 52 h. Ed. 163, 28 S. Ct. 110. 64-80b. Relation to similar transactions in time and place. — Baltimore, etc., R. Co. V. United States, 220 U. S. 94, 55 L. Ed. 384, 31 S. Ct. 3G8. 66-91. Misdemeanor. — The term "mis- demeanor" has been generally understood to mean the lower grade of criminal of- fense as distinguished from a felony. It is true that the term has often been used in the statutes of the United States with- out strict regard to its common-law mean- ing, and sometimes to describe offenses of a high grade, which have been declared in the statutes to be misdemeanors. In the statutes of the States the term has generally been defined as embracing crimes not punishable by death or im- prisonment in the penitentiary; but at all times a misdemeanor has been a crime. The new penal code of the United States "which goes into effect on January 1, 1910, (§ 335, c. 321, 35 Stat. 1088), provides that all offenses which may be punished by death, or imprisonment for a term ex- ceeding one year, shall be termed felo- nies; all other offenses shall be termed misdemeanors. United States v. Steven- 439 67-76 CRIMINAL LAW. Vol. V. D. Facts Relieving from Criminal Responsibility or Defenses — 5. Ignorance^ Mistake and Accident. — See note 1. 11. Turning State;s' or United States' Evidence. — Information or Evi- dence. — A shield against successful prosecution, available to the accused as a defense, and not immunity from the prosecution itself, is what was secured by Act Cong. Feb. 25, 1903, c. 755, 2>2 Stat. 904 (U. S. Comp. St. Supp. 1909, p. 1142), as amended by Act Cong. June 30, 1906, c. 3920, 34 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1168), providing that no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence in any pro- ceeding, suit, or prosecution under the Sherman anti-trust and interstate com- merce acts.*^^ 15. Acting for Another for Hire. — One can not escape the consequences of his criminal acts on the ground that he performed them for hire, and had no other interest in the results to be obtained. i*^*^ VI. Jurisdiction. D. Jurisdiction as Determined by Locality of Offense — 3. Crimes Com- mitted IN Places within Exclusive Jurisdiction of United States — c. Offenses in Forts, Arsenals, and Like Places. — The act of congress of April 30, 1790, now Rev. Stat. U. S., § 5339 (U. S. Comp. Stat. 1901, p. 3627), extends to land acquired for a postoffice and courthouse.^ ^^ Proof That Scene of Crime with Exclusive Federal Jurisdiction. — It must appear that the scene of the crime was within exclusive federal jurisdic- tion.-* 2" son, 215 U. S. 190, 199, 54 L. Ed. 153, 30 S. Ct. 35. The immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213, was amended by the act of February 20, 1907, c. 1134, 34 Stat. 898. The original act made it unlawful to assist or encourage the importation or migration of certain aliens into the United States. The amended act declares that such assistance, etc., shall be a misde- meanor. It is not to be presumed that this change is meaningless, and that Con- gress had no purpose in making it. Nor can any purpose be perceived in making the change except to manifest the inten- tion of Congress to make it clear that the acts denounced should constitute a crime which would carry with it the right of the Government to prosecute as for a crime. United States v. Stevenson, 215 U. S. 190, 198, 54 L. Ed. 153, 30 S. Ct. 35. 67-1. Ignorance of law. — ''Innocence can not be asserted of an action which violates existing law, and ignorance of the law will not excuse." Shevlin-Carpenter Co. V. Minnesota, 218 U. S. 57, 54 L. Ed. 930, 30 S. Ct. 663. 68-7a. Turning United States evidence. — Heike t'. United States, 217 U. S. 423, 54 L. Ed. 821, 30 S. Ct. 539. 69-lOa. Acting for hire. — Hyde z'. United States, 35 App. D. C. 451, writ of cer- tiorari granted. Hyde z'. United States, 218 U. S. 681, 54 L. Ed. 1207, 31 S. Ct. 228. 76-42a. Postoffice, etc.— Battle z'. United States, 209 U. S. 36, 52 L. Ed. 670. 28 S. Ct. 422, affirmJng United States r. Rules, (C. C. 1907), 154 Fed. 540. Land acquired for postoffice and court- house. — A murder committed upon land bought by the United States in the city of Macon, Ga., on which it is building a postoffice and courthouse, and over which the state has ceded jurisdiction, is made an ofifense against the United States, jus- tifiable in the federal courts, by Rev. vSt. U. S., § 5339 (U. S. Comp. St. 1901, p. 3627), making it a capital ofifense to com- mit murder within any fort, arsenal, dock- yard, or in any other place or district of country under the exclusive jurisdiction of the United States. Judgment, United States V. Battle (C. C. 1907), 154 F. 540, afifirmed. Battle z\ United States, 209 U. S. 36, 52 L. Ed, 670, 28 S. Ct. 422. 76-42b. Proof that scene of crime within exclusive federal jurisdiction of. — The evidence is sufficient to sustain the find- ing of the jury that the scene of a homicide was within the exclusive federal ju- risdiction, where the deeds and condemna- tion proceedings assented to by state leg- islation and authorized by congress, under which the United States claimed title to the premises as a military reservation, were put in evidence, together with of- ficial maps in the engineer's department, made from original surveys under the au- thority of the war department, and a book showing titles to such reservation, com- plied under the same authority, even if 440 Vol. V CRIMIXAL LAW. 79 4. Offenses ox Xavigable Waters — b. Under the Federal Statutes — (1) Offenses on the High Seas, or in Any River, Haven, Bay, etc. — (b) Out of Juris- diction of Any Particular State — aa. In General. — Under the eighth section of the Act of 1790, ch. 9, "for the punishment of certain crimes against the United- States, " the courts of the Union have cognizance of certain offenses committed on the high seas, or in any river, river haven, basin or bay, etc., out of the juris- diction of any particular state. It is not the offense committed, but the bay, etc., in which it is committed, that must be out of the jurisdiction of the state.^'^* The meaning of the word "'state," as used in the eighth section of the Act of 1790, and the subsequent Act of 1825. as well as used in § 5339, Rev. Stat., must be determined from its own context. The word "state," as there used, has been uniformly held as referring only to th.e territorial jurisdiction of one of the United States, and not to any other government or political community .^-^"^ Un- der this act crimes committed within the territorial limits of the Dominion of Canada, ^^'' and in the harbor of Honolulu in the territory of Hawaii,^-*'' have been evidence of the de facto exercise of ex- clusive jurisdiction was not enough. Holt V. United States, 218 U. S. 245, 54 L. Ed. ]021, 31 S. Ct. 2, aflfirming judgment in United States z: Holt (C. C. 1909), 168 F. 141. 79-53a. Out of jurisdiction of any par- ticular state. — W'vnne f. United States, 217 U. S. 2.34. 54 L. Ed. 748, 30 S. Ct. 447. 79-54a. "State" defined. — Wynne v. United States. 217 U. S. 234. 54 U Ed. 748, 30 S. Ct. 447. "In United States v. Furlong, 5 Wheat. 184, 200, 5 L. Ed. 64. one of the questions certified was whether the words, 'out of the jurisdiction of any particular state,' in the 8th section of the Act of congress of the 30th of April, 1790, chap. 9 (1 Stat, at L. 113. U. S. Comp. Stat. 1901, p. 3643), * * * must be construed to mean out of the jurisdiction of any particular state of the United States. To this the court said: 'We think it obvious that "out of any par- ticular state" must be construed to mean 'out of any one of the United States.' By examining the context it \Yill be seen that 'particular state,' is uniformly used in contradistinction to United States." Wynne v. United States, 217 U. S. 234, 54 U Ed. 748. 30 S. Ct. 447. "Thus, in United States v. Ross, 1 Gall. 626, Fed. Cas. No. 16,196, Mr. Justice Story said, in reference to the words in § 4 of the Act of 1825, above referred to, that 'the additional words of the act, "in any river, haven, basin, or bay out of the jurisdiction of any particular state." refer to such places without any of the United States, and not without foreign states, as will be very clear on examining the pro- vision as to the place of trial, in the close of the same section.' " Wynne t'. United States, 217 U. S. 234. 54 U Ed. 748, 30 S. Ct. 447. 79-54b. Dominion of Canada. — "In United Staies f. Rodcer^. 150 U. S. 249. 265, 37 L. Ed. 1071. 14 S. Ct. 109, * * * an offense committed on the Detroit river. on a vessel belonging to a citizen of the United States, was held cognizable by the district court of the United States for the eastern district of Michigan, although it appeared that the offense had been com- mitted within the territorial limits of the Dominion of Canada, and therefore not within the jurisdiction of any particular state of the United States. See, also, St. Clair z\ United States. 154 U. S. 134. 144, 38 U Ed. 936, 14 S. Ct. 1002, and Ander- son f. United States, 170 U. S. 481, 489, 42 U Ed. 1116. 18 S. Ct. 689." Wynne v. United States, 217 U. S. 234. 54 L. Ed. 748, 30 S. Ct. 447. 79-54C. Hawaii. — A murder committed on board a ship lying in the harbor ot Honolulu is cognizable in the district court (5f the United States for the terri- tory of Hawaii, under Rev. Stat., § 5339 (U. S. Comp. Stat. 1901. p. 3627), as com- mitted in a haven or arm of the sea within the admiralty and maritime jurisdiction of the United States, and "out of the ju- risdiction of any particular state." Wynne z: United States, 217 U. S. 234. 54 U Ed. 748. 30 S. Ct. 447. There is nothing in the Hawaiian Or- ganic Act (Act April 30, 1900, c. 339, 31 Stat. 141), which expressly or impliedly deprives the federal courts of their ju- risdiction under Rev. St., § 5339 (U. S. Comp. St. 1901, p. 3627), to punish a mur- der committed on board a ship lying in the harbor of Honolulu. Wynne v. United States, 217 U. S. 234, 54 L. 'Ed. 748. 30 S. Ct. 447. "That there existed an organized po- litical community in the Hawaiian Islands, exercising political, civil, and penal juris- diction throughout what now constitutes the territor}^ of Flawaii, including juris- diction over the bay or haven in question, when that territory v.'as acquired under the joint resolution of congress of July 7. 1898 (30 Stat, at L. 750). did not pre- vent the operation of § 5339, Rev. Stat. That 'political community' did not con- 441 80-85 CRIMINAL LAW. Vol. V. held to be without the jurisdiction of any state and justifiable by the federal courts. (c) Within the Limits of Any Particular State — aa. United States Courts — (aa) In General. — The jurisdiction of the courts of the United States is excluded where the offense is committed within the territorial limits of one of the states of the Union. '^■'^ 9. Conspiracy against United States. — Under Rev. St. U. S., § 5440 (U. S. Comp. St. 1901, p. 3676), providing that, if one or more of the persons con- spiring against the United States do any act to effect the object of the conspiracy, all parties to such conspiracy shall be liable, an indictment for a conspiracy against the United States will lie in the jurisdiction where an act in furtherance of it has been committed, although the conspiracy was not actually entered into in that jurisdiction.'^ ^^ E. Granting, Limiting and Redistributing Jurisdiction — 1. Crimes Pre- viously Committed. — See note 7S>. ■stitute one of the states of the United States; and if the other jurisdictional facts existed, § 5339 came at once into operation." Wynne v. United States, 217 U. S. 234, 54 L. Ed. 748, 30 S. Ct. 447. "It was within the power of congress to confer upon its courts exclusive juris- diction over all offenses committed within the territor}% whether on land or water. This it did not elect to exercise. It pro- \-ided for the establishment of a district court of the United States, with all of the powers and jurisdiction of a district court and of a circuit court of the United States. It provided also for the organi- zation of local courts with the jurisdiction conferred by the existing laws of Hawaii •upon its local courts except as such laws were in conflict with the act itself'or the constitution and laws of the United States. If it be true, as claimed, that the territorial courts exercise jurisdiction over homicides in the harbor of Honolulu, under and by virtue of the laws of Hawaii thus continued in force, it only establishes that there may be concurrent jurisdiction in respect of certain crimes when com- mitted in certain places." Wynne v. United States, 217 U. S. 234, 54 L. Ed. 748, 30 S. Ct. 447. 80-57a. Within state limits. — Wynne v. United States, 217 U. S. 234, 54 L. Ed. 748, 30 S. Ct. 447. The indictment in United States v. Bevans, 3 Wheat. 336, 388, 4 L. Ed. 404, "was for a murder done on board a war vessel of the United States while she lay at anchor a m.ile or more from the shores of the bay constituting the harbor of Bos- ton, in the state of Massachusetts. The "bay was wholly within the territorial ju- risdiction of the state of Massachusetts, and the court said that it was not ma- terial whether the courts of that state had cognizance of the offense or not. 'To "bring the offense,' said the court, 'within the jurisdiction of the courts of the Union, it must have been committed in a river, etc., out of the jurisdiction of any state. It is not the offense committed, but the bay in which it is committed, which must be out of the jurisdiction of the state. If, then, it should be true that Massachusetts can take no cognizance of the offense, yet, unless the place itself be out of her jurisdiction, congress had not given cognizance of that offense to its courts. If there be a common jurisdic- tion, the crime can not be punished in the courts of the Union.' " Wynne v. United States, 217 U. S. 234, 54 L. Ed. 748, 30 S. Ct. 447. 83-71a. Conspiracy against United States,— Hyde v. United States, 35 App. D. C. 451, writ of certiorari granted. Hyde V. United States, 218 U. S. 681, 54 L. Ed. 1207, 31 S. Ct. 228. See ante, CON- SPIRACY, p. 256. 85-78. Creating new state.— As the func- tion and jurisdiction of territorial courts Would naturally terminate upon the ter- ritory's becoming a state, some provision for the transfer of pending criminal busi- ness and jurisdiction arising under the laws of the United States to courts of the United States when they should come into existence is necessary. It is compe- tent for congress to provide, as it did in the 14th section of Enabling Act, for the admittance of the state of Oklahoma, for the transfer of jurisdiction in respect of all crimes against the United States, for the act must be read as applying to crimes under the general criminal law of the United States, to the federal courts pro- vided by the same act. Pickett z'. United States. 216 U. S. 456, 54 L. Ed. 566, 30 S- Ct. 265. "If this could not be done, the change from a territorial condition to that of a state would operate as an automatic amnesty for crimes committed against the general law of the United States within district^^ exclusively under its jurisdiction, and not within the jurisdiction of any state, for the courts of the state could not 442 Vol. V. CRIMINAL LAW. 86-88 F. Exclusive, Concurrent and Conflicting Jurisdiction — 1. Generai, HuivES AND Principles Applicable — a. Exclusive and Concurrent Jurisdic- tion. — There may be concurrent jurisdiction in respect of certain crimes when committed in certain places.^'"' 5. Crimes in Territories. — See ante, "Crimes Previously Committed," \'I, E, 1. See note 86. H. Divestiture and Loss of Jurisdiction. — See ante, "Crimes Previously Committed," VI, E, 1. Repeal of Statute Conferring Jurisdiction. — When the jurisdiction of a cause depends upon a statute, the repeal of the statute takes away the jurisdic- tion, and causes pending at the time fall, unless saved by provision of the statute. be empowered to prosecute crimes against the laws of another sovereignty. Martin r. Hunter, 1 Wheat. 304, 337, 4 L. Ed. 97. The power to punish was not lost if the crime was one of the character de- scribed, and the Enabling Act might well ■provide that such crime, committed either before or after the admission of the state, might be prosecuted in the courts of the United States when established within the new state. The subject is elaborately considered and decided by District Judge Marshall in United States v. Baum, 74 Fed. 43." Pickett r. United States. 216 U. S. 456. .54 L. Ed. 56R, 30 S. Ct. 265. Crimes committed between Enabling Act and admission of new state. — Crimes -and offenses committed before and after the admission of Oklahoma into the Union, and not those committed before and after the passage of Enabling Act Tune 16, 1906, c. 3335. 34 Stat. 267, must be deemed meant by the provision of ■•§ 14 of that act (34 Stat. 275 [U. S. Comp. St. Supp. 1909, p. 155]), for the transfer of jurisdiction in respect of all crimes against the United States to the federal courts therein provided, since otherwise there would be an indefinite period be- tween the date of the Enabling Act and the admission of the state, during which such crimes might go unpunished. Pick- •ett V. United States. 216 U. S. 456, 54 L. Ed. 566, 30 S. Ct. 265. The murder of one negro by another within the limits of the Osage Indian reservation subsequent to the Oklahoma Enabling Act of June 16, 1906 (34 Stat, at L. 267, chap. 3335), but prior to the ad- mission of that state into the Union, is justiciable, after such admission, in the district court of the United States for the western district of Oklahoma, under § 14 of that act, providing for the transfer of jurisdiction in respect of all crimes against the United States to the federal courts therein provided. Pickett r. United States, 216 U. S. 456, 54 L. Ed. 566, 30 S. Ct. 265. "The jurisdiction of the district court of the United States, exercised in respect to the indictment and trial of this plain- tiff in error, depends upon the provisions of the Enabling Act. Such a crime might 'have been prosecuted in the territorial court for the proper district of the terri- tory, sitting as a court of the United States, and administering the law of the United States in the exercise of its juris- diction conferred by congress. Ex parte Crow Dog, 109 U. S. 556, 27 L. Ed. 1030, 3 S. Ct. 396; Brown c-. United States, 77 C. C. A. 173, 146 Fed. 975." Pickett v. United States, 216 U. S. 456, 54 L. Ed 566, 30 _S. Ct. 265. Pending causes — Change of venue. A homicide cause, the venue of which had been changed conformably to the Act of June 28, 1898 (30 Stat, at L- 511, chap. 517), § 29, because of the Indian citizen- ship of the accused, from the United States court in the Indian territory to the federal district court at Paris, Texas, was not pending in the United States court in the Indian territory, within the meaning of the provisions of the Oklahoma En- abling Act of June 16, 1906 (34 Stat, at L. 267, chap. 3335), § 20, as amended by the Act of March 4, 1907 (34 Stat, at L. 1287, chap. 2911). for the transfer to the Okla- homa courts of all cases pending in the United States courts of Oklahoma and Indian territories, not transferred to the United States circuit or district courts in the state of Oklahoma. Hendrix v. United States. 219 U. S. 79, 55 L. Ed. 102, 31 S. Ct. 193. 86-80a. Exclusive and concurrent juris- diction. — Wynne f. United States. 217 U. S. 234, 54 L. Ed. 748, 30 S. Ct. 447. 88-86. Crime on Indian reservation within territory. — The murder of one ne- gro by another within the limits of In- dian reservation in a territorj' is committed within a place or district under the ex- clusiA'e jurisdiction of the United States, within the meanins: of U. S. Rev. Stat., § 5339, U. S. Comp. Stat. 1901, p. 3627, defining and punishing the crime of mur- der, as amended by the Act of January 15, 1897 (29 Stat, at L. 487. chap. 29, U. S. Comp. Stat. 1901. n. 3620^ and ex- tended by § 2145 to the Indian country, when not within the exceotions made by S 2146, which, by reason of the race of the accused and deceased, do not apply. Pick- ett V. United States. 216 U. S. 456, 54 L. Ed. 566, 30 S. Ct. 265. 443 95-105 CRIMINAL LAW. \'ol. V. If an act conferring jurisdiction is repealed without reservation as to pending; cases, they fall with it.^^'' Vin. Prosecution. D. Limitations — 2. When Statute; Begins to Run. — See note 48. 3. How Availed of — a. By Special Plea or by Evidence under General Issue. — Where an indictment charges a continuing conspiracy, which is ex- pressly alleged to have continued to the date of the filing of the indictment, such allegation must be denied under the general issue, and not by a special plea.-*^^ Plea in Bar Not Abatement. — The plea of the statute of limitations in criminal procedure has been universally classed as a plea in bar, and not in abate- ment.'*'^'' E. Transfer of Accused to Other Federal District. — If the offense be one which was committed in more than one district and cognizable in either under § 731, Rev. vStat., and the accused is indicted in each district, there must be an election as to where he shall be tried.^'*^ 95-24a. Repeal of statute conferring ju- risdiction. — Hendrix x'. United States. 219 U. S. 79, 55 L. Ed. 102. 31 S. Ct. 193. See. also, post, STATUTES. 100-48. Limitations. — "The general rule that time need not be proved as laid ao- plies to continuing offenses." United States 7'. Kissel. 218 U. S. 601, 54 L. Ed. 1168, 31 S. Ct. 124. "The mere continuance of the result of a crime does not continue the crime, United States z: Irvine, 98 U. S. 450, 25 L. Ed. 193." United States v. -Kissel, 218 U. S. 601. 54 L._ Ed. 1168, 31 S. Ct. 124. 100-49a. Continuous conspiracy — Denial under general issue. — United States v. Barber, 219 U. S. 72, 55 L. Ed. 99, 31 S. Ct. .209, following. United States v. Kis- sel, 218 U. S. 601. 54 L. Ed. 1168. 31 S. Ct. 124, so holding as to an indictment charging a continuing conspiracy to de- fraud the United States. 100-49b. Plea in bar not abatement. — United States :•. Barber, 219 U. S. 72, 55 L. Ed. 99, 31 S. Ct. 209, following United States v. Kissel, 218 U. S. 601, 54 L. Ed. 1168. 31 S. Ct. 124. "The plea of the statute of limitation does not question the validity of the in- dictment, but is directed to the merits of the case; and if found in favor of the de- fendant, the judgment is necessarily an acquittal of the defendant of the charge, and not a mere abatement of the action." United States v. Barber, 219 U. S. 72, 55 L. Ed. 99, 31 S. Ct. 209. 105-54a. Offense committed in more than one district. — Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569. 30 S. Ct. 249. "Primarily, this is the right and duty of the attorney general, or those acting by his authority. If the election require the arrest of the accused in a district other than that in which the trial is to be had. removal proceedings must, of course, be instituted. The duty of the commissioner is then limited to the determination of the single question of whether a prima facie case is made that the accused has committed an offense against the United States, indictable and triable m the dis- trict to which a removal is sought. There is no discretion reposed when such a case is made out." Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. "In Benson v. Henkel, 198 U. S. 1, 15, 49 L. Ed. 919. 25 S. Ct. 569, objection was made to a removal to the District of Co- lumbia upon the ground that the offense, if any, was committed in California, and that, under the constitution, the appellant was entitled to a trial in that jurisdiction. In dealing with that question, Mr. Justice Brown said: 'The objection does not ap- pear upon the face of the indictment, which charges the offense to have been committed within this district, but from the testimony of one of those clerks it seems that the money was received by him in certain letters mailed to him from San Francisco and received in Washington. Without intmiating whether the question of jurisdiction can be raised in this way, the case clearly falls within that of In re Palliser, 136 U. S. 257, 34 L. Ed. 514, 10 S. Ct. 1034, in which it was held that where an offense is begun by the mailing of a letter in one district and comoleted by the receipt of a letter in another dis- trict, the offender may be punished in the latter district, although it may be that he could also be punished in the former.' " Haas V. Henkel. 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. "In In re Palliser, 136 U. S. 257. 34 L. Ed. 514, 10 S. Ct. 1034, a removal from a New York district, the residence of Palliser, to a Connecticut district, was objected to because the offense had been committed in New York, and not Con- necticut. The court said: 'But there can be no doubt at all that, if any offense was committed in New York, the offense con- tinued to be committed when the letter reached the postmaster in Connecticut: and that, if no offense was committed in 444 Vol. V. CRIMINAL LAW. 105 Residence of Accused.— Whether the accused might have been indicted and tried in the district of his residence presents no obstacle to the legal right of re- moval. A person who has committed a crime against the United States in any judicial district has neither legal nor constitutional right to object to removal to that district for the trial. '^■^'^ Indictment in District of Residence and in Another for Same Offense. — A person indicted for the same ottense in two federal districts, one of which is the district where he resides, may — at least, with the consent of the court of the latter district — be removed, under Rev. St., § 1014 (U. S. Comp. St. 1901, p. 716), to the other district for the trial of the offense committed there. -^-^ - Interference with Jurisdiction of Other Courts. — The prosecution of proceedings for the removal to another federal district for trial of a person there charged with an offense against the United States is not an unlawful interference with the jurisdiction of a federal circuit court for another district, in which an order for the removal of the accused to answer for similar but distinct offenses has been stayed pending the determination of an appeal from such order to a circuit court of appeals. ■''■*'^ New York, an offense was committed in Connecticut; and that.- in either aspect, the district court of the United States for the district of Connecticut had jurisdic- tion of the charge against the petitioner. Whether he might have been indicted in New York is a question not presented b}' this appeal.'" Haas t'. Henkel, 216 U. S. 462, 54 I,. Ed. 569, 30 S. Ct. 249. 105-54b. Residence of accused. — Haas V. Henkel, 216 U. S. 462. 54 L. Ed. 569, 30 S. Ct. 219. distinguishing Hyde v. Shine, 199 U. S. 62. 50 L. Ed. 90, 25 S. Ct. .760. "There is no principle of constitutional law which entitles one to be tried in the place of his residence. The right secured by art. 3, § 2, and the sixth amendment of the constitution, is the right of trial in the district 'where the crime shall have been committed.' " Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569. 30 S. Ct. 249. In Burton v. United States. 202 U. S. 344, 387. 50 L. Ed. 1057, 26 S. Ct. 688. the court said that "the constitutional require- ment is that the crime shall be tried in the state or district where committed; not necessarily in the state or district where the party happened to be at the time." Price v. Henkel, 216 U. S. 488. 54 L. Ed. 581, 30 S. Ct. 257. Where the United States court for the district in which an offense was committed had jurisdiction over the accusation made in that district, and the case is triable there; the duty of the commissioner, as- suming a showing of probable cause, was to detain, and of the judge of the district to issue his warrant for the removal of the accused ''to the district where the trial is to be had." The case, on prin- ciple, must be the same if the offense be one which was committed in more than one district. Haas t'. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249, following Beavers r-. Haubert. 198 U. S. 77, 49 L. Ed. 950, 25 S. Ct. 573. 105-54C. Indictment in district of resi- dence and in another for same offense. — Price V. Henkel, 216 U. S. 488. 54 L. Ed. 581, 30 S. Ct. 257; Haas v. Henkel. 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. Denial of speedy trial. — Where indict- ments for an offense which was committed in more than one district are found in each district in one of which the defend- ant resides, the accused has a right to a speedy trial of the accusation in -the lat- ter district. If unreasonable delay should result from continuances due to an elec- tion to try the same accusations in the other district, a question might arise, call- ing for relief through habeas corpus. But such a possibility affords no legal reason for denying the right of removal. Haas V. Henkel. "2I6 U. ^S. 462, 54 L. Ed. 569, 30 S. Ct. 249. "The precise question has not been be- fore raised; but in principle the case is within In re Palliser, 136 U. S. 257, 267, 34 L. Ed. 514. 10 S. Ct. 1034: Hyde z'. Shine. 199 U. S. 62, 50 L. Ed. 90. 25 S. Ct. 760; and Benson v. Henkel, 198 U. S. 1, 15, 49 L. Ed. 919. 25 S. Ct. 569." Haas v. Hen- kel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. 105-54d. Interference with jurisdiction of other court. — Peckham :•. Henkel, 216 U. S. 483, 54 L. Ed. 579. 30 S. Ct. 255, af- firming 166 Fed. 627. "He will not be removed under or in pursuance of the original order of removal, execution of which had been stayed, but under an order made in an altogether dis- tinct and subsequent proceeding to answer distinct offenses." Peckham v. Henkel. 216 U. S. 483, 54 L. Ed. 579, 30 S. Ct. 255. "Finally, it is said that the jurisdiction of the court for the northern district of New York, having attached to the person of appellant, must be respected as exclu- 445 105 CRIMINAL LAW. Vol. V. That bail had been given by the accused for his appearance in the district of his residence for a different offense against the United States would not pre- vent removal, for in such a situation the sureties would be exonerated by act of the law.^-i'' The question of distance presents no obstacle to the legal right of re- moval. ^^^ Sufficiency of Indictment. — Where the indictment is not void on its face though it may be subjected to technical objections, it is sufficient for the purpose of a removal. ^■^^ sive until its jurisdiction is exhausted. The rule is one of comity only, and has a wide application in civil cases, but a limited one in criminal cases. See In re Johnson, 167 U. S. 120, 125, 42 L. Ed. 103, 17 S. Ct. 735, and Beavers v. Haubert, 198 U. S. 77, 84, 49 L. Ed. 950, 25 S. Ct. 573. But when, as here, the subsequent proceedings for the removal of appellant are to answer indict- ments later found for other and distinct offenses, the question is quite a different one, for the 'cases' are not the same. That they are 'cases' against the same offender is not of itself sufficient to constitute the second proceedings void as an unlawful interference with the jurisdiction of the circuit court for the northern district of New York. The present case differs upon this point from that of Beavers v. Hau- bert, in that the consent of the court of prior jurisdiction was not obtained as in that. In that case the court reserved the question as to 'whether the government had the right of election, without such consent,' to proceed in either of the two districts in w^hich indictments were pend- ing." Peckham v. Henkel, 216 U. S. 483, 54 L. Ed. 579, 30 S. Ct. 255. "But there is here no question of elect- ing whether to try in the northern district of New York or in the District of Colum- bia, but whether it would elect between the two removal proceedings, the object of each being to remove the appellant to the same place for trial. The institution of the second removal proceeding without the consent of the circuit court for the northern district of New York may very well be regarded as an election by the United States, the plaintiff in both cases to abandon the first complaint. But aside from this, and assuming, without decid- ing, that the removal proceedings were in disregard of the prior proceedings, and therefore erroneous, the jurisdiction of the commissioner was not affected. No con- stitutional right of the appellant was in- vaded. A petition for a writ of habeas corpus is not a writ of error. The error, if any, was a mere disregard of a rule of comity, which is not reversible in a pro- ceeding of this character." Peckham v. Henkel, 216 U. S. 483, 54 L. Ed. 579, 30 S. Ct. 255. 105-54e. Bail.— Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249, follow- ing Beavers v. Haubert, 198 U. S. 77, 49 L. Ed. 950. 25 S. Ct. 573; Peckham v. Henkel, 216 U. S. 483. 54 L. Ed. 579. 30 S. Ct. 255. See, also, ante, BAIL AND RECOGNI- ZANCE, p. 166. In Beavers v. Haubert, 198 U. S. 77, 49' L. Ed. 950, 25 S. Ct. 573, it was held that the fact that the accused was, at the time, under indictment in the district of his res- idence, and under bail for his appearance for a different offense against the United States, afforded no reason for denying a removal upon the election to try the one case before the trial of the other. Haas V. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. 105-54f. Distance. — In Hyde v. Shine (199 U. S. 62, 50 L. Ed. 90, 25 S. Ct. 760), the conspiracy charged was one triable in California, the residence of the accused, the demand was for removal from Cali- fornia to the District of Columbia, the question of distance was pressed and de- cided as presenting no obstacle to the legal right of removal. Haas v. Henkel, 316 U. S. 462. 54 L. Ed. 569. 30 S. Ct. 249. 105-54g. Sufficiency of allegation. — Al- legations charging a conspiracy by which an employee in the bureau of statistics in the department of agriculture was to give his coconspirators advance information of the official cotton crop reports, and a con- spiracy to bribe such einployee for the same purpose, sufficiently show^ for the purposes of a removal, under Rev. St.. § 1014 (U. S. Comp. St. 1901, p. 716), to the District of Columbia for trial, the com- mission within the district of offenses against the United States. Price v. Hen- kel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257; Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. "It is enough to hold, as we do, that the indictinents sufficiently charge an offense committed within the District of Colum- bia to require that the appellant shall be removed to that district for trial. Ben- son V. Henkel, 198 U. S. 1, 49 L. Ed. 919, 25 S. Ct. 569." Haas v. Henkel. 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. One good count in an indictment under whicli a trial might be had in the federal district to which a removal under U. S. Rev. Stat., § 1014, U. S. Comp. Stat. 1901, p. 716, is sought, is enough to support an order for such removal in a habeas cor- pus proceeding. Price v. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257. 446 Vol. V. CRIMINAL LAW. 105 Evidence and Showing of Probable Cause. — There must be some com- petent evidence to show that an offense has been committed over which the court in the other district had jurisdiction, and that the defendant is the individual named in the charge, and that there is probable cause for believing him guilty of the offense charged. ^^^ A prima facie case for the removal is made by the intro- duction of the indictments returned against him in the court of another district. Aluch efficacy is attributed to a certified copy of an indictment found in a compe- tent court of another district, when put in evidence in a removal proceeding;^'' but the evidence of probable cause afforded by the indictment is not conclusive. For this reason it has been held that the refusal of a commissioner to hear e\ i- dence offered for the purpose of showing that no offense had been committed,, triable in the district to which removal was sought, would be a denial of right se- cured under the constitution. ^^^ The introduction of copies of indictments for similar offenses found in the district in which the accused resides can not destroy the evidential effect of the indictments found in the district to which he is to be removed even when there is other evidence that no crime was committed in the latter district. ^^"^ The indictment found in the district in which the accused re- i05-o4h. Evidence and showing of prob- able cause. — Harlan z\ McGourin, 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. '"This was the construction of § 1014, in Greene v. Henkel, 183 U. S. 249, 261, 46 L. Ed. 177, 22 S. Ct. 218. * * * In the case of Hyde v. Shine, 199 U. S. 62, 50 L. Ed. 90, 25 S. Ct. 760, the justice was but de- claring the rule already recognized and enforced under § 1014, Rev. Stat." Harlan V. McGourin, 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. 105-541. Price v. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257, following Bry- ant V. United States, 167 U. S. 104, 42 L. Ed. 94, 17 S. Ct. 744; Greene v. Henkel, 183 U. S. 249, 46 L. Ed. 177, 22 S. Ct. 218; Hyde v. Shine, 199 U. S. 62, 50 L. Ed. 90, 25 S. Ct. 760, and Beavers v. Henkel, 194 U. S. 73, 48 L. Ed. 882, 24 S. Ct. 605. And see Harlan v. jNlcGourin, 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. ■'Haas was arrested upon a warrant duly sworn out, charging him with offenses against the United States, committed within the District of Columbia. Copies of the indictments duly returned by a grand jury were put in evidence. That made a prima facie case, requiring deten- tion until an order of removal could be applied for and issued." Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. 105-54J. Price v. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257, approving Tinsley v. Treat, 205 U. S. 20, 51 L. Ed. 689, 27 S. Ct. 430. 105-54k. Introduction of copies. — A finding of probable cause for the removal to the District of Columbia of a person there charged with an offense against the United States will not be disturbed on habeas corpus as being wholly without any evidence to support it, where certified copies of indictments for conspiring against the United States, found in the District of Columbia, were produced be- fore the commissioner, although copies of indictments found by the federal court of the district where the accused resides, laying the locus of the conspiracy in that district, were also offered in evidence,, together with testimony tending to show that the accused had not been in the Dis- trict of Columbia at any of the times when the conspiracy was said to have been formed. Price v. Henkel, 216 U. S- 488, 54 L. Ed. 581, 30 S. Ct. 257. "But It can not be conceded that the introduction of copies of the New Yoik indictments operated to destroy the ev.- aential effect ol the indictments found in the District of Columbia, even as to the identical counts. In the case of Haas v. Henkel (,216 L. S. 462, 54 L,. Ed. 569, 30 S. Ct. 240), we held that such evidence did not so conclusively destroy the evi- dence afforded by copies of the District ot Coluinbia indictments as to leave no testimony upon which the commissioner might, upon the whole case, decide that there was proof of probable cause." Price V. Henkel, 216 U. S. 488, 54 L,. Ed. 581, 30 S. Ct. 257. "But in this case there was no closing of the door to evidence otfered to show a want of probable cause. Copies of the New Vork indictments against appellant for many of the same oftenses were re- ceived in evidence, as tending to show that the conspiring, if any there was, had been done in New York, and not in the District of Columbia. Some evidence tending that Price was not in the Dis- trict of Columbia at the time when the conspiracies are charged to have been formed was also introduced. There was also some evidence offered, questioning the identity of the appellant with the person accused by the District of Colum- bia indictments. The probative weight of certified copies of the New York in- dictments is necessarily limited to such 447 105 CRIMINAL LAW. Vol. V. sides, together with evidence tending to prove that he had not been in the other district, only made an issue which the commissioner had jurisdiction to decide and when the proceedings before him show that he had such evidence upon which he might base his decision, that decision is not open for review upon a petition for a writ of habeas corpus. ^^' Rebutting- Prima Facie Case. — The prima facie case for the removal, under Rev. St., § 1014 ( U. S. Comp. St. 1901, p. 716), to another federal district for trial, of a person there charged with an offense against the United States, which is made by the production of certified copies of indictments for conspiracy against the United States, found by the court of that district, is not overcome by the introduction of copies of indictments found by a court of the district where the accused resides, which lay the locus of the conspiracy in that district. "-^^ Question for Commissioner. — If the commissioner receives evidence on behalf of the accused, it is for him to say whether, upon the whole testimony, there was proof of probable cause."'**" Habeas Corpus to Test Validity of Removal Proceedings — Conformity to State Practice. — The requirement that the usual mode of process adopted in the state shall be pursued refers to the proceedings for the arrest and exami- nation of the accused before the commissioner, but it has no bearing upon the counts as are identical in the two sets of indictments. This would leave counts five and seven of indictment No. 26,088 unaffected as evidence of probable cause, and justified the order of commitment, although there might be conclusive evi- dence that the ofifense charged in the other counts had not been committed in the District of Columbia, as charged. Horner v. United States, 143 U. S. 207, 36 L. Ed. 126, 12 S. Ct. 407." Price v. Henkel, 216 U. S. 488, 54 L. Ed. 581, ?,Q S. Ct. 257. 105-541. "The commissioner had before him competent evidence in the certified copies of the District of Columbia in- dictments upon which he might base a conclusion of probable cause. At most, the New York indictments, together with the evidence tending to prove that appel- lant had not been in the District of Col- umbia at any of the times when the conspiracy was said to have been formed, only made an issue which the commis- sioner had jurisdiction to decide." Price V. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257, following In re Cortes, 136 U. S. 330, 34 L. Ed. 464, 10 S. Ct. 1031; Bryant v. United States, 167 U. S. 104, 42 L. Ed. 94, 17 S. Ct. 744; Greene v. Henkel, 183 U. S. 249, 261, 46 L. Ed. 177, 22 S. Ct. 218; Hyde v. Shine, 199 U. S. 62, 84, 50 L. Ed. 90, 25 S. Ct. 760. 105-54m. Rebutting prima facie case. —Haas V. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249, affirming 166 Fed. 621. In Price v. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257, the court said: "The evidence, independent of that af- forded by the New York indictments, relied upon to show that appellant was not in the District of Columbia when the conspiracy is charged to have been formed, has been examined. It can not be said to be at all conclusive. First, it leaves out of consideration the fact that the indictments may be sustained by evi- dence of a conspiracy formed at dates before the finding of the indictment, other than those named, if not barred by the statute of limitations. Ledbetter v. United States, 170 U. S. 606, 612, 42 L. Ed. 1162, 18 S. Ct. 774. Second, it does not exclude the possibility that the con- spiracy may have been formed in the District of Columbia without appellant I)eing physically present when the con- spiracy was formed. In re Palliser, 136 U. S. 257, 265, 34 L. Ed. 514, 10 S. Ct. 1034; Burton v. United States, 202 U. S. 344, 387, 50 L. Ed. 1057, 26 S. Ct. 688; United States V. Thayer, 209 U. S. 39, 43, 52 L. Ed. 673, 28 S. Ct. 426. * * * Upon the whole case, we are satisfied that there is not shown that entire absence of evi- dence which, upon an appeal like this, would require us to hold that the decision that there was probable cause was void as not based upon any evidence." 105-54n. Question for commissioners. —Price V. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257, following In re Cortes, 136 U. S. 330, 34 L. Ed. 464, 10 S. Ct. 1031; and Bryant v. United States, 167 U. S. 104, 42 L. Ed. 94, 17 S. Ct. 744. In Price v. Henkel, 216 U. S. 488. 54 L. Ed. 581, 30 S. Ct. 257, the commis- sioner received evidence on behalf of the accused and upon such evidence found the existence of probable cause and com- mitted the defendants, and, upon applica- tion to the district judge for the warrant of removal, he reviewed his action, but did not pass upon the weight of the evi- dence. 448 Vol. V. CRIMINAL LAW 105-106 subsequent independent proceeding before the circuit court upon habeas cor- pus.^^° Scope of Review. — On habeas corpus to test the validity of proceedings to remove to another federal district a person there charged with an otTense against United States, matter in abatement and substantive defenses are not open;^^? and error, if any, in prosecuting such proceedings wliile similar proceedings were pending in a federal circuit court for another district can not be corrected.^-^i Exclusion of evidence to show that no offense had been committed triable in the district to which removal was sought is reviewable on habeas corpus.^^"" Sufficiency of Evidence. — It is well settled that, upon habeas corpus in the federal courts to review proceedings for removal of an accused to the district of trial, the court will not weigh the evidence, although, if there is an entire lack of evidence to support the accusation, the court may order his discharge."'*^ Denial of Speedy Trial. — The right to a speedy trial of an accusation for the same offense found in the district in which the accused resides affords no le- gal reason for denying the right of removal; but if unreasonable delay should re- sult from continuances due to the election to try the same accusation in another district, a case might arise calling for relief through habeas corpus. ^^' M. Arraignment and Plea — 1. Arraignme:nt — a. What Constitutes. — See note 60 105-54O. Habeas corpus to test validity, etc.— Price v. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257. 105-54p. Matters in abatement and sub- stantive defenses are not open on habeas corpus to test the validity of proceedings, under U. S. Rev. Stat., § 1014, U. S. Comp. Stat. 1901, p. 716, to remove to another federal district for trial a person there charged with an offense against the United States. Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569, 30 S. Ct. 249. See, generally, post, HABEAS CORPUS. 105-54q. Similar proceeding pending in circuit court for another district. — The error, if any, in prosecuting proceedings for the removal to another federal dis- trict for trial of a person there charged with an offense against the United States, while similar proceedings in a federal circuit court for another district are pending, can not be corrected on a writ of habeas corpus. Peckham v. Henkel, 216 U. S. 483, 54 L. Ed. 579, 30 S. Ct. 255. 105-54r. Exclusion of evidence. — In Tinsley v. Treat, 205 U. S. 20, 51 L. Ed. 689, 27 S. Ct. 430, "it was held that while an indictment constitutes prima facie evidence of the offense, when the defend- ant offered to show that no offense had been committed triable on the district to which removal was sought, the exclusion of such evidence was not mere error, but a denial of a right secured under the federal constitution to be tried in the state and district where the alleged of- fense was committed, and therefore re- viewable under habeas corpus proceed- ings." Harlan v. McGourin, 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. 105-54S. Sufficiency. — Price v. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 12 U S Enc— 29 449 257. following Hyde v. Shine, 199 U. S. 62, 84, 50 L. Ed. 90, 25 S. Ct. 760. The case of Hyde v. Shine, 199 U. S. 62, 84, 50 L. Ed. 90, 25 S. Ct. 760, was a proceeding in habeas corpus to attack the validity of an order made under § 1014, of the Rev. Stat., of the United States (U. S. Comp. Stat. 1901, p. 716), for the removal of the petitioner from the state of California to the District of Columbia for trial upon an indictment found in the district. In that case it was contended that, inasmuch as § 1014 requires proceedings for the removal of persons from one district to another to be agreeable to the usual mode of proc- ess against defendants in such state, and as in the state of California, where the prisoner was arrested, the supreme court had held that the question of probable cause of the prisoner's guilt might be considered upon the writ of habeas cor- pus, it necessarily followed that such should be the course of procedure in the federal courts. In answer to this con- tention, the above quoted rule was laid down. "In so stating, the learned judge, speaking for the court, was but affirming the rule well established under § 1014, that there must be some testimony before the com- missioner to support the accusation in order to lay the basis for an order of removal, otherwise the accused could be discharged upon habeas corpus, although the court would not weigh the evidence where the record shows that some evi- dence was taken." Harlan v. McGourin, 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. 105-54t. Denial of speedy trial. — Haas c-'. Henkel. 216 U. S. 462, 54 L. Ed. ^.Q9, 30 S. Ct. 249. 106-60. Arraignment and plea. — "Ac- cording to Sir Matthews Hale, the ar- 107-109 CRIMINAL LAW. Vol. V. c. Stating on the Record. — See note 63. 2. Plea— a. In General.— See ante, "Arraignment," VIII, M, 1. See note 64. b. Necessity and Waiver. — See note 65. c. Particular Pleas— (5) Special Pleas in Bar— (a) In General. — The desig- nation of pleas in bar as a plea in abatement does not change tlieir essential nature.'' ^^ (b) Pleading Over after Issue Found against Accused. — It is a rule in criminal law in favorem vitse, in capital cases, that when a special plea in bar is found against the prisoner, either upon issue tried by a jury or upon a point of law de- cided by the court, he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general is- sue "not guilty.'"^'''' raignment consists of three parts, one of which, after the prisoner has been called to the bar, and informed of the charge against him, is, the 'demanding of him whether he be guilty; and if he pleads not guilty, the clerk joins issue with him, cul, prist, and enters the prisoner's plea; then he demands how he will be tried; the common answer is, by God and the country, and thereupon the clerk enters po. se, and prays to God to send him a good deliverance.' 2 Hale, P. C. 219. So in Blackstone: 'To arraign is nothing else but to call the person to the bar of the court to answer the matter charged upon him in the indictment.' 'After which, after the indictment is read to the ac- cused, it is to be demanded of him whether he is guilty of the crime whereof he stands indicted, or not guilty.' 4 Bl. Com. 322, 323 to 341." Johnson v. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. In Grain v. United States, 162 U. S. 625, 40 L. Ed. 1097, 16 S. Ct. 952, the arraignment was considered as distinct from the plea, and consisted of formally calling the accused to the bar for the purpose of a trial. 107-63. Chitty says: "The proper mode of stating the arraignment on the record is in this form: 'And being brought to the bar here in his own proper person, he is committed to the marshal, etc. And being asked how he will acquit himself of the premises (in case of felony, and of "the high treason" in case of treason) 'above laid to his charge, saith,' etc. If this statement be omitted, it seems the record will be erroneous.' 1 Chitty, Grim. Law 419." Johnson v. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. The arraignment and plea are affirma- tively shown by the record, if such be the fair intendment of the words of the rec- ord. "And this is demonstrated by the case that is relied on against it; that is. Grain z-. United States, 162 U. S. 625, 40 L. Ed. 1097. 16 S. Ct. 952. In that case the record did not show, and we quote from the opinion, 'that the accused was ever formally arraigned, or that he plead, d to the indictment,' except as an inference from a statement in the bill of excep- tions that the jury were 'sworn and charged to try the issues joined.' " John- son 2J. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. "There is no explicit provision in the laws of the United States describing what shall constitute an arraignment. But so far as it is expressed it has a definite meaning." In § 1032, Rev. Stat. (U. S. Comp. Stat. 1901, p. 722), "the word 'ar- raignment' is used as comprehensively descriptive of what shall precede the plea. If it be so used in the law, it certainly can be used in the record as showing the performance of that which the law pre- scribes by it." Johnson v. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. The record sufficiently shows that the indictment was read to the accused, where, after reciting the presence of the attorney for the United States, the defendant in proper person and by his attorney, it adds that "thereupon the defendant, be- ing arraigned upon the indictment, pleads thereto not guilty, and for trial puts him- self upon the country, and the attorney of the United States doth the like." John- son V. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. 107-64. Plea. — A defendant, who has been indicted for crime and apprehended, has a right to raise an issue of law upon the indictment by demurrer, to plead in bar, or plead the general issue. Heike v. United States, 217 U. S. 423, 54 L. Ed. 821, 30 S. Ct. 539. 107-65. Necessity and waiver. — It was held in Grain z\ United States, 162 U. S. 625, 40 L. Ed. 1097, 16 S. Ct. 952, that a plea to the indictment was not a matter of form, but of substance, and should be shown by the record. Johnson v. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. See ante, "Stating on the Record." VIII, M, 1, c. 109-75a. Designation. — United States v. Barber, 219 U. S. 72, 55 L. Ed. 99, 31 S. Ct. 209. 109-77a. Pleading over. — Heike v. United States, 217 U. S. 423, 54 L. Ed. 450 \'ol. V. CRIMINAL LAW. 109-120 d. Time and Order. — Objections to the want of proper arrest and preliminary- examination of the accused before a magistrate, and to the lack of verification of the information by oath or affidavit, must be taken before pleading the general issue by some proper motion or plea in order to be available to the accused.''^'' 0. Copy of Indictment, List of Jurors and of the Witnesses. — See note 82 0|. List of Witnesses Who Appeared before Grand Jury. — Neither the sixth amendment to the federal constitution, nor U. S. Rev. Stat., § 829, U. S. Comp. Stat. 1901, p. 636, accords the right to the accused to be apprised of the names of the witnesses wdio appeared before the grand jury.'^-''^ P. Trial — 5. Requisites of Valid Trial — c. Observance of Rights of Ac- cused — (2) Waiver of Rights. — See note 99. 7. Province and Duties of Court axd Jury — a. Question of Laze and Fact — (3) Question for the Jury. — Intent. — See note 25. 821, 30 S. Ct. 539, following Rankin v. State, 11 Wall. 380, 20 L. Ed. 175. "At the common law, upon the failure of such plea in a case of misdemeanor, it was usual at once to sentence the defend- ant as upon conviction of guilt of the oflfense charged. In cases of felony it was usual to permit a plea of not guilty after judgment over." Heike v. United States, 217 U. S. 423, 54 L. Ed. 821, 30 S. Ct. 539. 109-77b. Time and order. — Dowell t . United States. 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590. Pleas in abatement in a criminal pros- ecution filed about four years after in- dictment found, which show a serious irregularity in the organization of the grand jury, are filed too late, and excep- tions thereto by the prosecution are properly sustained. Hyde v. United States, 35 App. D. C. 451, writ of cer- tiorari granted. Hyde v. Uni,ted States, 218 U. S. 681, 54 L. Ed. 1207, 31 S. Ct. 228. See the title ABATEMENT, REVIVAL AND SURVIVAL, p. 1. 110-82. Copy of indictment, list of ju- rors and witnesses. — "Both the constitu- tion and the law are careful to direct that information be given to the accused of the charge against him. By § 1033 it is provided that when any person is in- dicted for any capital offense, if it be treason, three days before the trial, and if it be any other capital offense, two days before the trial, a copy of the in- dictment and list of jurors and witnesses shall be delivered to him. And this can be insisted on. Logan :■. United States, 144 U. S. 263, 36 L. Ed. 429, 12 S. Ct. 617; Hickory v. United States, 151 U. S. 303, 38 L. Ed. 170, 14 S. Ct. 334. We may presume that the law was complied with in the present case and that Johnson was given a copy of the indictment as well as having had it read to him, which we think the record sufficiently shows." John- son V. United States, 225 U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. 113-93a. List of witnesses. — Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. 113-99. Waiver of rights. — "When there is no constitutional or statutory man- date, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy." Mullan V. United States, 212 U. S. ,516. 53 L. Ed. 632, 29 S. Ct. 330. 120-25. Intent. — "Where intent is an essential ingredient of a crime, it is set- tled that such intent may be charged in general terms, and that the existence of the intent becomes, therefore, a question to be detennined by the jury upon a con- sideration of all the facts and circum- stances of the case. Evans z'. United States, 153 U. S. 584, 594, 38 L. Ed. 830, 14 S. Ct. 934." United States v. Corbett, 215 U. S. 233, 54 L. Ed. 173, 30 S. Ct. 81. "It is, of course, to be conceded that where the facts charged to have been done with criminal intent are of such a nature that, on the face of the indict- ment, it must result as a matter of law that the criminal intent could not, under any possible circumstances, have existed, the charge of such intent, in general terms, would raise no issue of fact proper to go to a jury." United States v. Cor- bett, 215 U. S. 233, 54 L. Ed. 173, 30 S. Ct. 81. "If a man carries on an act, or any person does anything which, upon its face, is apparently unlawful, and he does it in a furtive and secret manner, showing that his intention while he does the act is to do it in such a way as to conceal it, the jury may draw the inference from that fact, if they see fit; they are not obliged to, but they may if they see fit — that the intention with which the act was done was to perform an illegal or a crim- inal act." New York Cent., etc., R. Co. V. United States. 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304. 451 126-129 CRIMINAL LAW. Vol. y. 8. Evidence— d. Admissibility and JVeight—{l3) Testimony of Accused at Preliminary Examination. — Testimony of an accused, voluntarily given at the .preliminary hearing, is not rendered inadmissible at the trial by U. S. Rev. Stat., § 860, U. S. Comp. Stat. 1901, p. 661, providing that no pleading nor any discov- ery or evidence obtained from a party by means of a judicial proceeding shall be used in evidence against him in a criminal proceeding.-^'^^ (14) Prima Facie Evidence. — Prima facie evidence is sufficient evidence to outweigh the presumption of innocence and if not met by opposing^ evidence to support a verdict of guilty. It is such as, in judgment of law, is sufficient to es- tablish the fact; and if not rebutted, remains sufficient for the purpose.^'^'^ e. Proof of Elements of Offense— (2) Intent.— See ante, "Questions for Jury." Mil, P, 7, a, (3). See note 51. Testimony of Accused. — See note 52. (3) Motive.— See ante, "Intent." VIII. P, 8, e, (2). f. Testimony of Accused. — Impeachment and Cross-Examination. — As- suming the position of a witness, the accused is entitled to all rights and protec- tion, and is subject to all criticisms and burdens; and may be fully cross-exam- ined as to the testimonv voluntarily given.*"^!^ 126-46a. Testimony at preliminary ex- amination. — Powers c'. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. "We are of the opinion that it was not essential to the admissibility of his testi- mony that he should first have been warned that what he said might be used against him." Powers v. United States, 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. "In Wilson v. United States, 162 U. S. 613, 40 L. Ed. 1090, 16 S. Ct. 895, Wilson was charged with murder. Before a United States commissioner, upon a pre- liminary hearing, he made a statement which was admitted at the trial. He had no counsel, was not warned or told of his right to refuse to testify, but there was testimony tending to show that the statement was voluntary. At page 623 this court said: 'And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but, on the contrary, if the confession was voluntary, it is sufficient, though it appear that he was not so warned. Joy, Confessions, 45, 48. and cases cited. . . . He, Wilson, did not testify that he did not know that he had a right to refuse to answer the questions, or that, if he had known it, he would not have answered. . . . He did not have the aid of counsel, and he was not warned that the statement might be used against him, or advised that he need not answer. These were matters which went to the weight or credibility of what he said of an incriminating character; but as he was not confessing guilt, but the contrary, we think that, under all the circumstances disclosed, they were not of themselves sufficient to require his answers to be excluded on the ground of being involuntary as matter of law.' " Powers V. United States, 223 U. S. 303, 56 L. Ed. 448. 32 S. Ct. 281. See ante, COXFESSIOXS. p. 249. 126-46b. Prima facie evidence. — Bailey V. Alabama, 219 U. S. 219, 234, 55 L. Ed. 191, 31 Sup. C:. Rep. 145. 126-51. Acts showing intent or malice or motive. — Evidence of an attempt to acquire, and of the acquisition, by like unlawful methods, of state school lands, is admissible, on a trial for conspiring to suborn perjury in proceedings for the purchase of public land under the Tim- ber and Stone Act, as tending to estab- lish guilty intent, purpose, design, or knowledge on the part of the alleged con- spirators. Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 163. 127-52. Testimony of accused as to in- tent or mptive. — Accused should be al- lowed to testify as to his intent in abstracting certain correspondence from the files of a corporation, where the lirosecution claims that he did so for the purpose of suppressing or destroying evi- dence against him. Judgment (1907) 30 App. D. C. 1, reversed. Crawford v. United States, 212 U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260. 129-61a. Cross-examination. — Powers f. United States, 223 U. S. 303, 56 L. Ed. 448. 32 S. Ct. 281, following Reagan v. United States, 157 U. S. 301, 305, 39 L. Ed. 710, 15 S. Ct. 610. ''The rule is thus stated in Brown v. Walker, 161 U. S. 591, 597, 40 L. Ed. 819, 16 S. Ct. 644: 'Thus, if the witness him- self elects to waive his privilege, as he may doubtless do, since the privilege is for his protection, and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go and make a full disclosure. 1 Greenl. Ev., § 451; Dixon v. Vale, 1 Car. & P. 278; East v. Chapman, 2 Car. & P. 570. ?^Ioody & M. 46; State v. K— , 4 N. H. 452 Vol. V. CROSS BILLS. 135-138 CROSS BILLS. IV. Propriety and Necessity, 453. V. Filing of Cross Bill, 453. CROSS REFERENCES. See the title Cross Bills, vol. 5, p. 133, and references there given. IV. Propriety and Necessity. A cross bill may be maintained although the defendants seeking to file the same claim no affirmative relief against the complainants where a decree may be neces- sary to establish the rights of the various codefendants.'^'' V. Filing of Cross Bill. A court in granting leave to file a cross bill may prescribe the terms on which the same may be filed. 2-** 562; Low r. Mitchell. IS Me. 372; Coburn V. Odell, 30 N. H. 540; Norfolk v. Gaylord, 28 Conn. 309; Austin v. Prince, 1 Sim. 348; Com. V. Pratt, 126 Mass. 462; Chamber- lain V. Wilson, 12 Vt. 491, 36 Am. Dec. 356; Lockett V. State, 63 Ala. 5; People v. Fres- hour, 55 Cal. 375. So, under modern stat- utes permitting accused persons to take the stand in their own behalf, they may be subjected to cross-examination upon their statements. State v. Wentworth, 65 Me. 234, 20 Am. Reo. 688; State v. Wit- ham, 72 Me. 581; State v. Ober, 52 X. H. 462, 13 Am. Rep. 88; Com. v. Bonner, 97 Mass. 587; Com. v. Morgan, 107 Mass. 199; Com. v. ^lullen, 97 Alass. 545; Con- ners v. People, 50 X. Y. 240; People v. Casey, 72 X. Y. 393.' " Powers v. United States. 223 U. S. 303, 56 L. Ed. 448, 32 S. Ct. 281. One accused of illegal conduct with reference to the distillation of spirits, who had testified in chief that he was employed to beat apples near a still, with no interest in them, or in the product, or in the still, may be asked on cross-exam- ination whether he had not previously worked with his alleged employer at a dis- tillery and made brandy with him, as rel- evant to his claim that he was innocently occupied. Powers v. United States, 223 U. S. 303, 56 L. Ed. 448. 32 S. Ct. 281. 135-6a. Propriety and necessity. — Rickey Land, etc., Co. v. Miller, 218 U. S. 258. 54 L. Ed. 1032, 31 S. Ct. 11. Cross bills filed by some of the defend- ants in a suit brought in a federal circuit court to establish the relative rights of the parties as appropriators of the waters of the same stream are maintainable, al- though they may adinit the right of com- plainants, since a decree as between themselves and the other defendants may be necessary to prevent a decree for com- plainants from working injustice. Rickey Land, etc., Co. v. Miller, 218 U. S. 258, 54 L. Ed. 1032, 31 S. Ct. 11, affirming decree (1907) 152 F. 11, 22, 81 C. C. A. 207, 218. "It is urged that the cross bills on which the bill and injunction in the sec- ond case were based were not maintain- able because not in aid of the defenses to the original suit of Miller and Lux. But it might very well be, as was shown by the argument for the respondents, that even if they admitted the right of Miller and Lux still a decree as between them- selves and other defendants would be necessary in order to prevent a decree for Miller and Lux from working injustice. See further, Ames Realty Co. z\ Big In- dian Mining Co., 146 Fed. Rep. 166. The cross bills being maintainable the juris- diction in respect of them follows that over the principal bill.' Rickey Land, etc., Co. r. Miller, 218 U. S. 258, 263, 54 L. Ed. 1032, 31 S. Ct. 11. 138-24a. Filing cross bill — Terms. — "Permission to file a cross bill which seeks to suspend the operation of a de- cree for the discharge of the trustee in a voting trust agreement, and the transfer of the stock to the new trustee, is prop- erly refused defendants who assert claims to the stock antagonistic to the holders of the trust certificates, unless thej' apply .for an injunction and give security, espe- cially where there are some shares of stock held by the trustee to which such defend- ants assert no claim." Moore Printing, etc.. Co. V. National Sav.. etc., Co., 218 U. S. 422, 54 L. Ed. 1093, 31 S. Ct. 64. "But it is said that the trial court erred in refusing to receive the cross bill ex- cept upon the terms prescribed in the de- cree, which were, as we have seen, that they apply for an injunction and give a bond, as provided l)y equity rule 42 of the court. In the motion for permission to file the cross bill, orders were asked that 453 151-152 CROSSINGS. CROSS-EXAMINATION.— See post, Witnesses. \'ol. V. CROSSINGS. in. Contributory Negligence of Traveler, 454. A. General Principles, 454. B. Duty to Stop, Look and Listen, 454. IV. Actions for Injuries at Crossings, 454. B. Province of Court and Jury, 454. CROSS REFERENCES. See the title Crossings, vol. 5, p. 148, and references there given. In addition, see ante, Carriers, p. 216; post. Railroads. As to the constitu- tionality of a state regulation as to the manner in which trains shall approach and give notice of their approach to dangerous crossings, see ante. Constitutional Law, p. 264. III. Contributory Negligence of Traveler. A. General Principles. — See note 12. B. Duty to Stop, Look and Listen. — See note 14. IV. Actions for Injuries at Crossings. B. Province of Court and Jury. — See note 20. would have suspended the operation of the decree and transfer of the stock cer- tificates. And it will further be observed that the stock was not to be transferred by the decree to those whose title appel- lants were seeking to divest, but to a re- sponsible trust company, and that there were shares of stock held by the trust companj^ in which Others had an interest which, it is not contended, is subject to a trust in favor of appellants. The purpose of the cross bill was, therefore, to prevent the use of property under a claim of title to it which would take time to determine, and it was not inequitable in the court to require security of the appellants, the se- curity which was required of other liti- gants who sought the same kind of re- lief." Moore Printing, etc., Co. v. Na- tional Sav., etc., Co., 218 U. S. 422, 430, 54 L. Ed. 1093, 31 S. Ct. 64. The trustee in a voting trust agreement, charged with the duty of holding and vot- ing the corporate stock deposited with it, and with collecting and paying over the dividends to the holders of the triist cer- tificates, which files a bill seeking, in ac- cordance with the trust agreement, to be permitted to resign, and to be discharged from all liability upon transferring the stock to the new trustee chosen by the holders of the trust certificates, is entitled to judgment on the pleadings which grants the relief sought unless those defendants not consenting, but asserting in their an- swers claims to the stock antagonistic to their codefendants, the holders of the trust certificates, shall comply with the terms on which the court will permit the filing of a cross bill. Moore Printing, etc.. Co. V. National Sav., etc., Co., 218 U. S. 422, 54 L. Ed. 1093, 31 S. Ct. 64, affirming decree (1908), 31 App. D. C. 452. 151-12. General principles. — Flannelly :'. Delaware, etc., Co.. 225 U. S. 597, 56 L. Ed. 1221, 32 S. Ct. 783. 151-14. Duty to stop, look and listen. — Flannelly v. Delaware, etc., Co., 225 U. S. 597, 56 L. Ed. 1221, 32 S. Ct. 783. 152-20. Province of court and jury. — A person attempting to drive across the tracks at a highway crossing without awaiting the further movements of a freight train which, after passing between her and the passenger tracks, had come to a full stop some 150 feet beyond the crossing, partly obstructing her view, is not, as a matter of law, guilty of such con- tributory negligence as will bar a recov- ery for the damages resulting from a col- lision with a rapidly moving passenger train not giving the usual warning signal, especially where it was the rear wheel of the wagon which was struck, and the un- expected behavior of the horse delayed her forward progress. Flannelly v. Dela- ware, etc., Co., 225 U. S. 597, 56 L. Ed. 1221, 32 S. Ct. 783. See, also, post, NEG- LIGENCE. 454 Vol. V. DAMAGES. 154-197 CRUEL AND UNUSUAL PUNISHMENT.— See ante, Constitutional Law, p. 264. CUBA. — See Cuba, vol. 5, p. 153, and references there given. In addition, • see post, International Law; United States. CUBAN LAW. — See post, Foreign Laws. CUMULATIVE EVIDENCE.— See post, New Trials. CURRENT.— See note 1. CURTESY. — See the title Curtesy, vol. 5, p. 155, and references there given. CUSTODIA LEGIS.— See ante, Courts, p. 398. CUSTODY OF PRISONER.— See post. Habeas Corpus. CUSTOM DUTIES.— See post, Revenue Laws. CUSTOM LAWS.— See post. Revenue Laws. CUSTOMS. — See post, Judicial Notice; Usages and Customs. CUTTING TIMBER ON PUBLIC LANDS.— See post, Mines and Min- erals ; Public Lands. DAMAGES. III. Measure and Elements of Damages, 455. A. Pleasure of Damages, 455. 1. Unliquidated Damages, 455. a. Compensation as Determining. 455. (1) Rule Stated and Applied, 455. ,/ (b) Application of Rule in Actions for Breach of Con- tract, 455. bb. Specific Contracts, 455. (ee) Contracts for Sale of Realty, 455. V. Proceedings to Recover Damages, 455. F. Assessment of Damages, 455. CROSS REFERENCES. See the title Damages, vol. 5, p. 157, and references there given. III. Measure and Elements of Damages. A. Measure of Damages — 1. Unliquidated Damages — a. Compensation as Determining — (1) Rule Stated and Applied — (b) Application of Rule in Ac- tions for Breach of Contract — bb. Specific Contracts — (ee) Contracts for Sale of Realty. — See note 58. V. Proceedings to Recover Damages. F. Assessment of Damages. — In General. — See note S7. 154-1. Current yearly pay. — Congress, 171-58. Breach of contract for sale of in using the words, "current yearly pay,'' land. — The difference between the pur- as the basis of the computation of the chase price and the market value at the longevity pay provided for by the Act of time of executing a contract for the sale May 13, 1908, must be deemed to have of real property is the measure of dam- adopted its construction of those words ages in an action by the vendee against as used in § 1262, Revised Statutes, giving the vendor, founded on the latter's re- a ten per cent longevity increase on "cur- fusal to perform. Harten v. Lofifler, 213 rent yearly pay," which it declared, by the U. S. 397, 53 L. Ed. 568, 29 S. Ct. 351. Act of June 30, 1882, should he computed 197-57. Function of jury to determine on the yearly pay of the grade. Plummer amount where not fixed by rule of law. — V. United States, 224 U. S. 137, 56 L. Ed. Modification of a requested instruction as 697, 32 S. Ct. 467. See ante, ARMY AND to damages in an action by a father for NAVY, p. 150. death of his minor children by adding that 455 199-200 DEATH BY WRONGFUL ACT. Vol. V. DAMNUM ABSQUE INJURIA.— See ante, Actions, p. 7. DAMS. — See post, Navigable Waters; Waters and Watercourses. DATE. — See ante, Army and Navy, p. 150; Bills, Notes and Checks, p. 204. DAY'S WORK.— See post, Labor. DEALER.— See note 3. DEALING IN FUTURES.— See post. Jurisdiction. DEATH. — See ante. Abatement, Revival and Survival, p. 1 ; Appeal and Error, p. 34; post. Death by Wrongful Act; Partnership. DEATH BY WRONGFUL ACT. CROSS REFERENCES. See the title Death by Wrongful Act, vol. 5, p. 200, and references there given. In addition, see ante. Appeal and Error, p. 34; Conflict oe Laws, p. 250; Constitutional Law, p. 264; post, Impairment oe Obligation of Contracts; Jurisdiction. As to bringing suit in a court of admiralty for death by wrongful act on the high seas, see ante, Admiralty, p. 10. As to right of a nonresident to remove an action for wrongful death from a state to a federal court, see post. Removal OF Causes. As to liability of a master for death of servant, see post, Master and Servant. As to right of an alien to bring an action for death by wrongful act, see ante, Aliens, p. 18; post. Treaties. As to employers' liability act of 1908, see post. Master and Servant. Under Maritime Law. — In the absence of statute the maritime law of this country, at least, gives no right of action for the death of a human being on the high seas or on waters navigable from the seas, caused by negligence.^* "the amount of damages can not be fixed by the evidence, but must be the result of your own judgment," can not be regarded as open to the objection that the jurors were thereby informed that they pos- sessed the power capriciously to fix the amount of the damages, when read in con- nection with prior instructions to the ef- fect that the measure of damages was the net value to the father of the services of his children during their minority, espe- cially where the trial court is not asked to remove the supposed ambiguity. Judg- ment (1907) 89 P. 212, 18 Okl. 107, af- firmed. Waters-Pierce Oil Co. v. Des- elms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. 199-3. Wholesale dealers include cor- porations. — In the .Act of May 9, 1902, re- quiring wholesale dealers in Olemargarine to keep certain books and make cer- tain returns, the words "wholesale deal- ers," embrace corporations. United States V. Union Supply Co., 215 U. S. 50, 54, 54 L. Ed. 87, 30 S. Ct. 15. See post, PO- LICE POWER. Sale of articles by manufacturers. — Merchants and dealers who sell patented things in the usual course of business are exempted from the operation of Kirby's (Ark.) Dig., §§ 513-516, requiring a nego- tiable instrument taken in payment for patented article to show on its face for what it was given or be void. The man- ufacturer of the patented article who sells it in the usual course of business in his store or factory would probably come within the exception. He may be none the less a dealer, selling in the usual course of his business, because he is also a manufacturer of the article dealt in. Ozan Lumber Co. v. Union County Nat. Bank, 207 U. S. 251, 52 L. Ed. 195, 28 S. Ct. 89. Secnnte, BILLS. NOTES AND CHECKS, p. 204; PATENTS. 200-3a. It was settled in The Harris- burg. 119 U. S. 199, 30 L. Ed. 358, 7 S. Ct. 140, that no damages can be recovered in admiralty for the death of a human being on the high seas, or on the waters navi- gable from the seas, caused by negligence, in the absence of an act of congress or a statute of a state, giving the right of ac- tion therefor. As said in Butler v. Bos- ton, etc., Steamship Co., 130 U. S. 527, 555, 32 L. Ed. 1017, 9 S. Ct. 612, the maritime law of this country, at least, gives no such right. La Bourgogne, 210 U. S. 95. 52 L. Ed. 973, 28 S. Ct. 664. 456 Vol. V. DEBT, THE ACTION OF. 203-206 DEATH DUTY.— See post. Succession Taxes. DE BONIS NON. — See post, Executors and Administrators. DEBT.— See note 1. DEBT, THE ACTION OF. II. Nature of Action, 457. III. Right to Maintain Action, 457. A. General Rule, 457. E. Recovery of Taxes or Duties, 458. H. Fines, Forfeitures and Penalties, 458. Trial — Direction of Verdict, 458. CROSS REFERENCES. See the title Debt, the Action of, vol. 5, p. 205, and references there given. II. Nature of Action. An action of debt is in the nature of a civil action.-'' III. Right to Maintain Action. A. General Rule. — See note 3. Vi 203-1. Taxes. — "A tax may or may not be a debt under a particular statute, ac- cording to the sense in which the word is found to be used. But whether the government may recover a personal judg- ment for a tax depends upon the ex si- ence of the duty to pay, for *^he enforce- ment of which another remedy has not been made exclusive. Whether an ac- tion of debt is maintainable depends not upon the question who is the piamtirt or in what manner the obligation was in- curred, but it lies whenever there is due a simi either certain or readily reduced to cer- tainty." United States v. Chamberlin, 219 U. S. 250, 55 L. Ed. 204, 31 S. Ct. 155. See post, REVENUE LAWS; TAXA- TION. "The legal tender acts expressly pro- vided that the notes should be receiva- ble for national taxes, and the context for- bade the conclusion that Congress in- tended to include state taxes under the term debts, and there was hence no con- flict with the statute of Oregon which re- quired the taxes due the state to be col- lected in coin." United States v. Cham- berlin, 219 U. S. 250, 55 L. Ed. 204, 31 S. Ct. 155. 206-2a. Nature of action. — Hepner v. United States, 213 U. S. 103, 53 L. Ed. 720, 29 S. Ct. 474. "In Jacobs v. United States, 1 Brock, 520, 525, Fed. Cas. No. 7,157, the ques- tion arose whether the United States could maintain an action of debt to re- cover the specific sum which an act of congress (1 Stat, at E. 76, chap. 20) pro- viding for additional revenue declared should be forfeited and paid by any per- son guilty of the ofifense of forcibly res- cuing or causing to be arrested, any spirits, etc., after the same had been seized by the collector. Chief Justice Marshall held that an action of that kind was a 'civil cause' within the meaning of the 9th section of the Judiciary Act .of 1789, defining the jurisdiction of the dis- trict courts of the United States. In Stearns z'. United States, 2 Paine, 300, Fed. Cas. No. 13,341, Mr. Justice Thomp- son in the circuit court of the United States for the district of Vermont, held that actions for penalties were civil ac- tions, both in form and in substance, cit- ing 3 Bl. Com. 158, and Atcheson v. Ev- eritt, 1 Cowp. 382, 391. In the latter case, which vvas an action of debt, based upon an English statute. Lord Mansfield said that a penal action 'is as much a civil action as an action for money had and received.'" Hepner v. United States, 213 U. S. 103, 53 L. Ed. 720, 29 S. Ct. 474. 206-3. Debt of record, specialty or sum certain. — Debt lies whenever a sum cer- tain is due to the plaintiff, or a sum which can readily be reduced to a certainty, a sum requiring no future valuation to set- tle its amount. "It is not necessarily founded upon contract. It is immaterial in what manner the obligation was in- curred, or by what it is evidenced, if the sum owing is capable of being definitely ascertained. The Act of 1823 fixes the amount of the liability at double the value of the goods received, concealed, or purchased, and the only party injured by the illegal acts which subject the per- petrators to the liability is the United States." Hepner v. United States, 213 U. 457 208-212 DECISION. Vol. V. E. Recovery of Taxes or Duties. — See notes 12, 14. H. Fines, Forfeitures and Penalties. — See note 15. V^. Trial — Direction of Verdict. It has been held that on the trial of an action of debt the court may direct a verdict where the evidence warrants it.^^a DEBTOR AND CREDITOR.— See note 1. DEBTS. — See ante, Attachment and Garnishment, p. 156; Bankruptcy, p. 168; post, Executions; Payment. As to debts of the United States, see post, United States. As to the action of debt, see ante. Debt, the Action of, p. 457. DEBTS OF DECEDENTS.— See post. Executors and Administrators. DECEDENTS. — See post. Descent and Distribution; Executors and Administrators. DECEIT.— See post, Fraud and Deceit. DECISION, — See ante. Appeal and Error, p. 34; Courts, p. 398; post. Judg- ments and Decrees. As to finality, see ante. Appeal and Error, p. 34; post. Judgments and Decrees. As to rule of stare decisis, see post. Stare Decisis. S. 103, 53 L. Ed. 720, 29 S. Ct. 474. "Whether an action of debt is main- tainable depends not upon the question who is the plaintiff or in what manner the obligation was incurred, but it lies whenever there is due a sum either cer- tain or readily reduced to certainty." United States v. Chamberlin, 219 U. S. 250, 262, 55 L. Ed. 204, 31 S. Ct. 155. 208-12. Duties — Recovery of custom duties by crown. — "At common law, cus- toms duties were recoverable by the crown by an information in debt or an exchequer information in the nature of a bill in equity for discovery and account. These informations rested upon the gen- eral principle 'that in the given case the common law or the statute creates a debt, charge, or duty in the party personally to pay the duties immediately upon the importation; and that, therefore, the ordi- nary remedies lie for this, as for any other acknowledged debt due to the crown.' " United States v. Chamberlin, 219 U. S. 250, 258, 55 L. Ed. 204, 31 S. Ct. 155. 208-14. Taxes. — "A tax debt may or may not be a 'debt' under a particular statute, according to the sense in which the word is found to be used. But whether the government may recover a personal judgment for a tax depends upon the existence of the duty to pay, for the enforcement of which another remedy has not been made exclusive." United States V. Chamberlin, 219 U. S. 250, 262, 55 L. Ed. 204, 31 S. Ct. 155. See post, TAXATION. 208-15. Fines, forfeitures and penalties. — The penalty incurred under the Act of March 3, 1903 (32 Stat, at L. 1213, 1214, chap. 1012), §§ 4, 5, for inducing an alien to migrate to the United States for the purpose of performing labor there, may be recovered bv a civil action of debt brought by the United States. Hepner V. United States, 213 U. S. 103, 53 L. Ed. 720, 29 S. Ct. 474. See, also, ante, ALIENS, p. 18; post, PENALTIES AND FORFEITURES. 210-30a. Directing verdict. — Hepner v. United States, 213 U. S. 103, 53 L. Ed. 720, 29 S. Ct. 474. See post, VERDICT. The trial court may direct a verdict in favor of the government plaintiff in an action of debt to recover the penalty in- curred under the Act of March 3, 1903, §§ 4, 5, for inducing an alien to migrate to the United States for the purpose of performing labor there, where it appears, by undisputed testimony, that the defend- ant has committed the offense out of which the cause of action arises. Hep- ner V. United States, 213 U. S. 103, 53 L. Ed. 720, 29 S. Ct. 474. 212-1. Clerk of federal district court debtor as to surplus fees not a trustee. — The duty of a clerk of a federal dis- trict court to pay over to the United States the surplus fees and emoluments of his office which his half-yearly return or the audit thereof shows to exist over and above the compensation and allow- ances authorized by law to be retained by him is not governed by the federal statutes relating to the embezzlement of "public money" or "money or property of the United States;" but such fees and emoluments are received by the clerk, not as moneys or property belonging to the United States, but as the amount al- lowed to him for his compensation and office expenses under the statutes defin- ing his rights and duties, and with respect to the amount payable when the return is made, the clerk ns not trustee, but a debtor. United States v. Mason, 218 U. S. 517, 54 L. Ed. 1133, 31 S. Ct. 28. See ante, CLERKS OF COURT, p. 241. 458 Vol. V. DE FACTO CORPORATIONS. 221-226 DECLARATION. — See post, Declarations and Admissions. As to decla- ration of intention to become citizen, see post, Naturawzation. As to decla- ration in preemption of public land, see post, Public Lands. As to declarations in pleadings, see post. Pleading. DECLARATIONS AND ADMISSIONS. III. Oral Declarations and Admissions, 459. A. Admissibility, 459. 3. When Made by Privies, 459. d. Testators and Intestates, 459. 9y2. When ^lade by a Wife. 459. CROSS REFERENCES. See the title Declarations and Admissions, vol. 5, p. 214, and references there given. In addition, see post. Wills. III. Oral Declarations and Admissions. A. Admissibility — 3. When Made by Privies — d. Testators and Intestates. — Validity of Will. — As a general rule declarations made by a testator, either before or after the date of the alleged will, unless made near enough to the time of its execution to become a part of the res gestae, are not admissible as evidence in favor of or against the validity of the will.^^'^ Ignorance of Contents of Will. — Declarations of an illiterate testatrix prior and subsequent to the date of her will, as to how she intended to dispose, or had disposed, of her property, are properly held inadmissible to show that she was ignorant of its contents, where there was no evidence of testamentary inca- pacity at the date of the will, and nothing in the evidence excluded from which it could be inferred, and there was no evidence of fraud or undue influence.'*^^ 9y2. When Made by a Wife. — Statements made by a widow with reference to conversations with her husband are inadmissible to show that certain transac- tions on his part were in fraud of creditors, especially w^here she was not herself called as a witness.^^^ DECREES. — See post. Judgments and Decrees. DECREES PRO CONFESSO.— See post. Judgments and Decrees. DEDICATION.— See the title Dedication, vol. 5, p. 235, and references there given. DEEDS. — See the title Deeds, vol. 5, p. 245, and references there given. In addition, see ante. Acknowledgments, p. 7; post, Fraud and Deceit; Laches; Mortgages and Deeds of Trust; Public Lands; Rescission, Can- cellation AND Reformation ; Vendor and Pl'rchaser. See, also, post. De- scription. As to federal decisions as to deeds in conformity with decisions of the state courts, see ante. Courts, p. 398. DEEDS OF TRUST.— See post, Mortgages and Deeds of Trust. DE FACTO CORPORATIONS.— See ante. Corporations, p. 381. 221-38a. Declarations relating to valid- L. Ed. 783, 28 S. Ct. 561. ity of will. — Lipphard v. Humphrej^ 200 226-66a. Statements by widow as to U. S. 26-i. 52 L. Ed. 78.3, 28 S. Ct. 561. conversations with her husband.— Will v. 221-40a. Declarations inadmissible to Tornabells, 217 U. S. 47, 54 L. Ed. 660, show ignorance of contents of will. — 30 S. Ct. 424. Lipphard r. Humphrey, 209 U. S. 264, 52 459 285-286 DELAY. Vol. V. DE FACTO OFFICERS. II. Public Officers, 460. E. Liabilities to Rightful Incumbent of Compensation and Fees Received, 460. CROSS REFERENCES. See the title De Facto Officers, vol. 5, p. 283, and references there given. II. Public Officers. E. Liabilities to Rightful Incumbent of Compensation and Fees Re- ceived. — A de jure officer may recover from the de facto incumbent the fees and emoluments of the office received during incumbency .*^^ But the cost of ob- taining the emoluments of an office, which would have been entailed on any per- son who might have held the office, may be set off by an ousted de facto officer in an action by the de jure officer for official earnings.^*^ DE FACTO SOVEREIGN.— See post, Internationai. Law. DEFALCATION. — See ante. Banks and Banking, p. 184; post, Embh;z- ZLKMENT. DEFAMATION.— See post, Libi^l and Slander. DEFAULT. — See ante. Bills, Notes and Checks, p. 204; Chattel Mort- gages, p. 230; post, Mortgages and Deeds of Trust; Principal and Surety. As to default judgment, see post, Judgments and Decrees. DEFAULT IN PLEADING.— See post. Pleading. DEFAULT JUDGMENTS-.- See post, Judgments and Decrees. DEFINITIONS. — See the particular words, phrases, and titles throughout this supplement. DEFRAUD.— See note 4a. DE JURE OFFICERS.— See post, Pup.lic Officers. DELAY. — See post, Estoppel; Laches; Limitation of Actions and Ad- v^ERSE Possession ; Patents ; Public Lands. As to hindering and delaying creditors, see post, Fraudulent and Voluntary Conveyances. 285-6a. Liabilities to rightful incum- United States Revised Statutes, § 5440, bent of compensation and fees received. making criminal conspiracies "to defraud — Sandoval v. Albright, 93 P. 717. af- the United States in any manner or for firmed. Albright v. Sandoval, 216 U. S. any purpose." The contention that the 331, 54 L. Ed. 502, 30 S. _Ct. 318. word "defraud" must be confined to its 285-6b. Cost of obtaining emoluments common-law significance, and hence can may be set off. — Albright r. Sandoval, 216 not embrace the acts charged, is without U. S. 331, 54 L. Ed. 502, 30 S. Ct. 318. merit, even if it be conceded for the sake 286-4a. Defrauding creditors. — Con- of argument that the word has a com- gress, in enacting § 67e, of the Bankrupt mon-law meaning, and that that meaning Act of July 1, 1898, and using the terms, would be implied if t,he word stood alone "to hinder, delay or defraud creditors," in the statute. United States v. Keitel, intended to adopt them in their well- 211 U. S. 370, 53 L. Ed. 230, 29 S. Ct. known meaning as being aimed at con- 12:!. See ante, CONSPIRACY, p. 256. veyances intended to defraud. Coder v. Postal laws. — In § 5480, of the Revised Arts, 213 U. S. 223, 242, 53 L. Ed. 772, 29 Statutes, prohibiting the use of mails for S. Ct. 436. See post, FRAUDULENT "any scheme or artifice to defraud," a AND VOLUNTARY CONVEYANCES. scheme to defraud by means of false pre- A conspiracy to obtain title to coal lands tenses is "a scheme or artifice to defraud" of the United States, in clear violation within the plain meaning and purpose of of the prohibition of the coal-land laws this section. United States v. Stever, 222 against making more than one entry, U. S. 167, 56 L. Ed. 145, 32 S. Ct. 51. ' See is embraced by the provisions of the post, POSTAL LAWS. 460 Vol. A\ DEMURRERS. 292-303 DELAYING CREDITORS.— See post, Fraudulent and Voluxtary Cox- VEYAXCES. DELEGATION. — See ante, Coxstitutioxae Law, p. 264; post, Master and Servaxt ; Prixcipai, axd Agext. DELINQUENTS.— See post, Taxation. DELIVERY.— See ante, Biles, Notes and Checks, p. 204; Deeds, p. 459. As to delivery by carriers, see ante. Carriers, p. 216; post, Ships and Ship- ping; Telegraphs axd TelEphoxEs. As to delivery of land patents, see post, Public Laxds. DEMAND. — See the title Demaxd, vol. 5, p. 287, and references there given. DEMURRER TO THE EVIDENCE. VI. Judgment «,nd Review, 461. CROSS REFERENCES. See the title Demurrer to the Evidence, vol. 5, p. 289, and references there given. VI. Judgment and Review. Waiver of Error. — Any supposed error committed by the trial court in over- ruling a demurrer to the evidence is waived where the defendant thereafter pro- ceeds to introduce testimony in its own behalf. ^"'^ DEMURRERS. V. When Properly Interposed, 461. F. Failure to State Cause of Action or Defense. 461. 1. Civil Suit, 461. b. To Plea or Answer, 461. (2) To Answer, 461. (b) Under Code Practice, 461. X. Operation and Effect, 462. A. As Admission, 462. XII. Hearing and Determination, 462. C. Judgment on Demurrer. 462. 5. Appeal and Error, 462. CROSS REFERENCES. See the title Demurrers, vol. 5, p. 293, and references there given. V. When Properly Interposed. F. Failure to State Cause of Action or Defense — 1. Civil Suit — b. To Plea or Ansiver — (2) To Ansiver — (b) Under Code Practice. — General aver- ments in an amended answer, which amounts to no more than mere conclusions, are not sufficient as against a demurrer.^^^ 292-24a. Waive of error. — McCabe, 303-56a. To answer under code prac- etc, Constr. Co. v. Wilson, 209 U. S. 275, tice.— Southern R. Co. v. King. 217 U. 52 L. Ed. 788, 28 S. Ct. 558. S. 524, 5-4 L. Ed. 868, 30 S. Ct. 594. See, generally, post, PLEADING. 461 309-334 DBSCBNDANTS. Vol. V. X. Operation and Effect. A, As Admission. — See notes 94, 95. The correctness of an opinion set forth in a pleading is not admitted by a demurrer.2^ XII. Hearing and Datermination. C. Judgment on Demurrer — 5. Appeai, and Error. — See ante, Appeai, and Error, p. 34. Judgment Sustaining Demurrer. — The issues raised by a plea will be pre- sumed to have been waived or abandoned at the trial, where, after a demurrer to such plea had been sustained without exception taken, defendant went to trial upon the merits without objection, and introduced evidence upon other issues, and no evidence was offered or introduced on either side relating to the matters .set out in such plea.^^* 18; Chinese Exclusion Acts, DENIAL. — See post. Pleading. DEPORTATION.— See ante, Aliens, p. p. 232. DEPOSIT. — See ante. Banks and Banking, p. 184. DEPOSITIONS. — See the title Depositions, vol. 5. p. 321, and references there given. DEPOSITOR. — See ante, Banks and Banking, p. 184. DEPOSITOR'S GUARANTY.— See ante, Banks and Banking, p. 184. DEPRECIATED CURRENCY.,— See post. Payment. DEPUTIES. — See post. Mines and Minerals; Public Ofeicers; United States DESCENDANTS.— See note 4a. 309-94. Operation as admission. — Con- tinental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 486, 29 S. Ct. 280; Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 53 L. Ed. 682, 29 S. Ct. 404. 310-95. Legal conclusions. — Equitable Life Assur. Soc. v. Brown, 213 U. S. 2.5, 53 L. Ed. 682, 29 S. Ct. 404. 312-2a. Correctness of opinion. — Equi- table Life Assur. Soc. v. Brown, 213 U. S. 25, 53 L. Ed. 682, 29 S. Ct. 404. Example. — "As, for instance, in regard to the probable effect in the future of the continued control of the defendant by the interests existing therein up to 1906. Hence, any construction placed by com- plainant upon the character of the de- fendant and the insurance policy issued by the defendant to the complainant is not admitted, nor is the allegation of the ownership of the surplus by the policy holders, as alleged by the complainant, nor any opinion which is expressed in the bill as to the ability of the defendant to continue business; nor is any other opinion as to future happenings admitted by the demurrer." Equitable Life As- sur. Soc. V. Brown, 213 U. S. 25, 53 L. Ed. 682, 29 S. Ct. 404. 319-50a. Judgment sustaining demurrer. — German Alliance Ins. Co. v. Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246. "Under these circumstances, we are not required to consider the questions raised by thut plea. On this record we may fairly assume that the defendant at the trial waived or abandoned the issues raised bv the plea." German Alliance Ins. Co. 'v. Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246, citing Garrard v. Rey- nolds, 4 How. 123, 126, 11 L. Ed. 903; Weed T. Crane, 154 U. S. 570, 19 L. Ed. 712, 14 S. Ct. 1215. 334-4a. Use of descendants in a convey- ance. — No trust in favor of the then ex- isting members of the tribe and their de- scendants was created by letters patent which, following the language of the Choctaw treaty of Sept. 27. 1830, under the authority of which the patent was made, granted to the Choctaw nation a tract of land "in fee simple, to them and their descendants, to enure to them while they shall exist as a nation and live on it," but such grant was one to the na- tion only, limited in point of time to the corporate existence of the nation. Flem- ing V. McCurtain, 215 U. S. 56, 54 L. Ed. 88, 30 S. Ct. 16. See post, PUBLIC LANDS. 462 Vol. V. DEVICE. 344 DESCENT AND DISTRIBUTION. I. Definitions and General Consideration, 463. F. Liability of Estates to Payment of Debts, 463. VI. Agreements Made between Heirs to Settle Estates, 463. CROSS REFERENCES. See the title Descent and Distribution, vol. 5, p. 335, and references there given. I. Definitions and General Consideration. F. Liability of Estates to Payment of Debts. — See post. Executors and Administrators. VI. Agreements Made between Heirs to Settle Estates. Construction of Family Settlement. — One-half the net proceeds of the sale of real property in which a testator owned an undivided half interest, and not the entire net proceeds of the sale, is meant by the word "remainder," as used in an agreement for the division of the inheritance between the widow as usufructuary heiress and the heirs, who were also the owners of the other undivided half in- terest of the property, by which such property was to be sold, certain admitted debts or liabilities were to be deducted from the proceeds, and the remainder was to be turned over to the widow, to be used by her as usufructuary heiress."*''' DESCRIPTION.— See note la. DESERTION.— See post, Divorce and Alimony. DESERT LAND.— See post, Public Lands. DESTRUCTION.— See post, Due Process of Law; Police Power. DETINUE. — See the title Detinue, vol. 5, p. 345, and references there given. DEVIATION.— See note a. DEVICE. — The term device includes anything which is a plan or contrivance ; it need not be necessarily fraudulent.'' 344-47a. Construction of family settle- ment.— Calvo V. De Gutierrez, 208 U. S. 443, 52 L. Ed. 564, 28 S. Ct. 382. 344-la. Adequate description in con- veyances. — "The general rule in refer- ence to description in conveyances is thus stated by Jones on Real Property, § 323: 'The first requisite of an adequate descrip- tion is that the land shall be identified with reasonable certainty, but the degree of certainty required is always qualified by the application of the rule that that is certain which can be made certain. A deed will not be declared void for uncer- tainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evi- dence, what property it was intended to convey. The office of a description is not to identify the land, but to furnish the means of identification. The description will be liberally construed to afiford the basis of a valid grant. It is only when it remains a matter of conjecture what prop- erty was intended to be conveyed, after resorting to such extrinsic evidence as is admissible, that the deed will be held void for uncertainty in the description of par- cels.' " Ontario Land Co. v. Yordy, 212 U. S. 152, 157, 53 L. Ed. 449. 29 S. Ct. 278. 347-a. Deviation of ships. — "By the ad- miralty law, a departure from the regular course of a shipment when done under the usage of trade is no deviation. Host- etter v. Park, 137 U. S. 30, 40, 34 L. Ed. 568. So, also, in Constable v. National Steamship Co., 154 U. S. 51, 52, 38 L. Ed. 903, it was said: 'In the law maritime a deviation is defined as a "voluntary de- parture without necessity or any reason- able cause, from the regular and usual course of the ship insured." ' " Empire State Cattle Co. v. Atchison, etc., R. Co., 210 U. S. 1, 21, 52 L. Ed. 931, 28 S. Ct. 607. See post, SHIPS AND SHIPPING. Deviation by carriers. — See ante, CAR- RIERS, p. 216. 347-b. Device. — Armour Packing Co. V. United States, 209 U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428. Under the Elkins Act of Feb. 19, 1903, making it a criminal offense to grant or / 463 347 DISCOUNT. \'ol. V. DEVISE.— See post, W11.LS. DIFFERENT.— See note 5a. DILIGENCE. — See post, Negligence. DIPLOMATIC AND CONSULAR OFFICERS.— See references ante, under Ambassadors and Consuls. DIRECTING VERDICT.— See post, Verdict. DIRECTORS. — See post, Officers and Agents of Private Corporations. DIRECT TAX.— See post. Duties; Excise; Revenue Laws; Taxation. DISBURSING OFFICERS AND AGENTS.— See ante, Army and Navy, p. 150; post, Public Officers; United Staters. DISCONTINUANCE. — See post, Dismissal, Discontinuance and Nonsuit. DISCONTINUE.— See ante. Appeal and Error, p. 34; post, Dismissal, Dis- continuance AND Nonsuit. DISCOUNT.— See ante. Banks and Banking, p. 184. receive rebates in sessions in respect to transportation of property in interstate or foreign commerce, whereby any such property shall by any device whatever he- transported at less than carriers' published rate or discrimination be practiced, to sus- tain a conviction a device or contrivance, secret or fraudulent in its nature, is not essential. Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428. See post, INTERSTATE AND FOREIGN COMMERCE. 347-5a. Different compensation. — The Act of February 4, 188T, regulating com- merce declared it to be an unjust and un- lawful discrimination for carriers to charge, demand, collect or receive from any person or persons "a greater or less compensation" for any service rendered or to be rendered in the. transportation of passengers or property than was charged, demanded, collected or received from any other person or persons for doing him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circum- stances and conditions. But the Act of June 29, 1906, made a material addition to the words of the Act of 1887; for, it expressly prohibited any carrier, unless otherwise provided, to demand, collect or receive, "a greater or less or different compensation" for the transportation of persons or property, or for any service in connection therewith, than the rates, fares and charges specified in the tariff filed and in effect at the time. The words "or different," looking at the context, can- not be regarded as superfluous or meaning- less. The history of the acts relating to commerce shows that congress, when in- troducing into the Act of 1906 the word different, had in mind the purpose of cur- ing a defect in the law and of suppressing evil practices under it by prohibiting the car- rier from charging or receiving compen- sation except as indicated in its published tariff. Louisville, etc., R. Co. v. Mott- iey, 219 U. S. 467, 475. 55 L. Ed. 297, 31 S. Ct. 265. See ante, CARRIERS, p. 216; post, INTERSTATE AND FOREIGN COMMERCE. 464 Vol. V. DISHOXOR. 352-353 DISCOVERY. II. Bill of Discovery, 465. B. Jurisdiction and Right to ^Maintain, 465. 2. Right to ^Maintain, 465. a. Specific Instances, 465. (2) In Aid of Executions at Law, 465. (8) Prying into Nature of Adversary's Case, 465. CROSS REFERENCES. See the title Discovery, vol. 5, p. 350, and references there given. In addition, as to production of books and papers, see post. Productiox of Documents. II. Bill of Discovery. B. Jurisdiction and Rig-ht to Maintain — 2. Right to Maintain — a. Spe- cific Instances — (2 ) In Aid of Executions at Laze. — A court of equity does not lose its jurisdiction to entertain a bill for the discovery of evidence or to enjoin the trial at law until obtained, because the powers of the courts of law have been enlarged so as to make the equitable remedy unnecessary in some circumstances. ^^^ (8; Prying into Nature of Adversary's Case. — A bill of discovery can not be used merely for the purpose of enabling the plaintiff in such a bill to pry into the case of his adversary to learn its strength or weakness. ^'^^ DISCRETIONAL DUTIES.— See post, ^Iandamus. DISCRIMINATION. — See post. Foreign Corporations; Interstate and Foreign Commerce. DISCRIMINATION ON ACCOUNT OF COLOR.— See ante. Civil Rights, p. 236 ; post, TrRv. DISC SOUND RECORDS.— See post. Patents. DISFRANCHISEMENT.— See ante. Civil Rights, p. 236. DISHONOR.— See ante. Bills. Notes and Checks, p. 204. 352-lla. Carpenter r. Winn, 221 U. S. tolerated. The principal is stated by a 53.3. 539, 55 L. Ed. 8-12, 31 S. Ct. 683. great authority upon equity thus: "Nor 353-17a. Prying into nature of adver- has a party a right to any discovery ex- sary's case. — A discovery sought upon cept of fact and deeds and writings nec- suspicion, surmise or vague guesses is essary to his own title under which he called a "fishing bill," and will be dis- claims; for he is not at liberty to pry into missed. Story, Eq. PI., §§ 320-325. Such the title of the adverse party." Story, a bill must seek only evidence which is Eq. Juris., § 1490. Carpenter z\ Winn, material to the support of the complain- 221 U. S. 533. 540, 55 L. Ed. 842. 31 S. ant's own case, and prying into the na- Ct. 683. ture of his adversary's case will not be 12 U S Enc— 30 465 1 378 DISMISSAL, DISCONTINUANCE AND NONSUIT. Vol. V. DISMISSAL, DISCONTINUANCE AND NONSUIT. II. Dismissal and Nonsuit, 466. B. Involuntary, 466. 1. Dismissal, 466. a. When Proper, 466. (5) Want of Turisdiction, 466. (b) Since Act of 1875,466. bb. Mode of Raising Objection and N^ecessity There- for, 466. (ee) Dismissal by Court of Its Own Motion, 466. ddd. Parties Collusively ]^lade or Joined, 466. gg. Collusive Incorporation, 466. (15) Failure to Revive after Death of Defendant, 466. g. Dismissal without Prejudice, 467. (1) Bill for Injunction, 467. (2) Prosecution for Embezzlement without Prejudice to Civil Action, 467. V. Nolle Prosequi, 467. B. Effect, 467. CROSS REFERENCES. See the title Dismissal, Discontinuance and Nonsuit, vol. 5, p. 356, and references there given. In addition, see ante, Appeal and Error, p. 34; Autrefois, Acquit and Con- vict, p. 161; Courts, p. 398; post, Res Adjudicata. II. Dismissal and Nonsuit. B. Involuntary — 1. Dismissal — a. When Proper — (5) Want of Jurisdic- tion — (b) Since Act of i8/f, — bb. Mode of Raising Objection and Necessity Therefor — (ee) Dismissal by Court of Its Own Motion — ddd. Parties Collu- sively Made or Joined. — By § 5 the Act of 1875, where it appears to the satis- faction of the circuit court that the suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of that court or that the parties to that suit were improperly or collusively made or joined for the purpose of creating a case cognizable under that act, the circuit court is directed to pro- ceed no further therein, but to dismiss the suit on that ground. Where there is no claim that the averments in the bill are untrue, or that the debts named therein as owing to the complainants, do not in fact exist, or any question as to the citi- zenship of the complainants, and no evidence of any fraud practiced for the pur- pose of thereby creating a case to give jurisdiction to the federal court, the fact that the parties preferred to take the subject matter of the litigation into the fed- eral courts, instead of proceeding in one of the courts of the state, is not wrong- ful, and not a ground of dismissal. So long as no improper act was done by which the jurisdiction of the Federal court attached, the motive for bringing the suit there is unimportant.^^^ gg. Collusive Incorporation. — See ante. Courts, p. 398. (15) Failure to Revive after Death of Defendant. — The bill in a foreclosure suit is properly dismissed where the complainant, after his claim to a final decree 378-81a. Parties collusively made or ship, 208 U. S. 90, 52 L. Ed. 403, 28 S. joined.— In re Metropolitan R. Receiver- Ct. 219. See ante, COURTS, p. 398. 466 Vol. V. DISTRICT COURT. 385-393 nunc pro tunc has been rightfully denied, makes no effort to revive the cause, though the defendant has been dead for some years.''' g. Dismissal z^'ithout Prejudice — (1) Bill for Injunction. — The dismissal of a bill seeking to enjoin enforcement of legislative regulation of gas rates as confis- catory in advance of any actual experience of the practical result of such rates should be without prejudice.--^ (2) Prosecution for Embezzlement without Prejudice to Civil Action. — See post, Embezzlement. V. Nolle Prosequi. B. Effect. — Dismissal without Prejudice to Civil Suit. — The dismissal of a criminal prosecution in the Philippine Islands for embezzlement, without prej- udice to the right to institute a civil action, is not demanded because the restora- tion of the money found to be embezzled, or, in lieu thereof, the suft'ering of a subsidiary imprisonment for a term not exceeding one-third of the principal pen- alty, will not bar the creditor from a civil action to recover any sum which he may prove to be due in excess of the sum wrongfully converted.^^^ Employer's Liability Insurance. — See post. Master and Servant. DISSOLUTION. — See ante. Banks and Banking, p. 184; Corpor.ations, p. 381 ; post. Partnership. As to dissolution of injunctions, see post, In- junctions. DISSOLUTION OF TRUSTS.— See post, Monopoeies and Corporate Trusts. DISTANCE.— See ante. Boundaries, p. 206. DISTILLER'S BOND.— See post, EstoppEe. DISTRESS. — See post. Landlord and Tenant; Revenue Laws; Taxation. DISTRIBUTION. — See ante, Descent and Distribution, p. 463; post, Trusts and Trustees. DISTRICT AND PROSECUTING ATTORNEYS.— See the title District and Prosecuting Attorneys, vol. 5, p. 396, and references there given. DISTRICT COURT.— See ante. Admiralty, p. 10; Appeal and Error, p. 34; Courts, p. 398; post. Venue. 385-7a. Failure to revive.— Cuebas Y. S. 19, 53 L. Ed. 382, 29 S. Ct. 192, revers- Arredondo v. Cuebas Y Arredondo. 223 ing 157 Fed. 849. U. S. 376, 56 L. Ed. 476. 32 S. Ct. 277. 393-38a. Dismissal of civil suit without 389-22a. Dismissal without prejudice. — • prejudice. — Freeman v. United States, 217 Willcox v. Consolidated Gas. Co., 212 U. U. S. 539, 54 L. Ed. 874, 30 S. Ct. 592. 467 407-426 DIVORCE AND ALIMONY. Vol. V. DISTRICT OF COLUMBIA. CROSS REFERENCES. See the title District of Columbia, vol. 5, p. 404, and references there given. In addition, see ante, Appeal and Error, p. 34; Criminal Law, p. 435; post, Limitation of Actions and Adverse Possessions; Police Power; Res Adju- dicata; Sentence and Punishment; Special Assessments; Verdict; Work- ing Contracts. As to the adoption of the common law for the District of Columbia, see ante, Common Law, p. 345. As to jurisdiction of offenses, see ante, Criminal Law, p. 435. As to special assessments in the District of Columbia, see post. Special Assessments. Power of Congress. — See note 15, DIVERSE CITIZENSHIP.— See ante. Appeal and Error, p. 34; Courts, p. 398 ; post. Removal of Causes. DIVESTITURE OF JURISDICTION.— See post, Removal of Causes. DIVISION OF OPINION.— See ante, Appeal and Error, p. 34. DIVISION OF TERRITORY.— See post. International Law. DIVORCE AND ALIMONY. VI. Effect of Divorce or Annulment of Marriage, 468. D. Foreign Divorces and Conflict of Laws, 468. 5. Property Rights, 468. c. Alimony, 468. VII. Pleading and Practice, 468. CROSS REFERENCES. See the title Divorce and Alimony, vol. 5, p. 412, and references there given. VI. Effect of Divorce or Annulment of Marriage. D. Foreign Divorces and Conflict of Laws — 5. Property Rights — c. Ali- vioiiy. — Enforcement. — See note 61. VII. Pleading and Practice. Condition of Opening Default. — The discretion of the court, under Code 407-15. Powers of congress. — Columbia faith and credit clause of the federal con- Heights, etc., Co. z'. Rudolph, 217 U. S. stitution, provided that no modification 547, 54 L. Ed. 877, 30 S. Ct. 581. of the decree was inade prior to the ma- 426-61. Enforcement. — Decrees of the turity of such installments, unless by the New York courts for the future payment law of the state in which the decree was of alimony are not subject to annulment rendered its enforcement is so completely or modification by those courts as to within the discretion of the courts of over-due and unsatisfied installments, so that state that they may annul or modify as to deprive such decrees of the protec- the decree, even as to over-due and un- tion, as to past-due and unpaid install- satisfied installments. Sistare tj. Sistare, ments, of the full faith and credit clause 218 U. S. 1, 54 L. Ed. 905, 30 S. Ct. 682, re- of the federal constitution. Sistare v. versing judgment (1907), 66 A. 772, 80 Sistare, 218 U. S. 1, 54 L. Ed. 905, 30 S. Conn. 1, 125 A'm. St. Rep. 102; Barber v. Ct. 682. Barber, 21 How. 582, 16 L. Ed. 226, fol- A decree for the future payment of ali- lowed in Lynde v. Lynde, 181 U. S. 183, mony is, as to installments past due and 45 L. Ed. 810, distinguished, unpaid, within the protection of the full 468 Vol. V. DOCUMENTARY BVIDBNCB. 428-437 Civ. Proc. St. Okl. 1893, § 3984, to permit a defaulting defendant to answer "upon such terms as may be just," is not abused by making it a condition of granting such permission in a suit for divorce that defendant comply with an or- der theretofore made, directing him to pay temporary alimony and attorney's fees, wh.ich was reasonable in itself, and reasonable in relation to the means and obligations of defendant to plaintiff.*^'^'' DOCKET. — See ante, Appkal and Error, p. 34; post, Judgme;nts and De- crees. DOCUMENTARY EVIDENCE. II. Rules Applicable to Specific Documents, 469. A. Official Public Documents, 469. 1. Admissibility, 469. d^. Condemnation Proceedings, 469. e. Records and Documents of the Executive Departments of the United States Government, 469. (4) Records and Documents of the War Department, 469. 1. Maps, Plats and Surveys, 470. 2. Necessity and 3*1 ode of Proving, 470. e. Copy of Certificate of Enrollment of a Vessel, 470. C. Private Documents, 470. 1. Admissibility, 470. a. Deeds, 470. ( 1 ) For What Purposes Deeds Are Admissible, 470. ( a ) To Prove Ownership or Title, 470. c. Written Contracts and Documents Explanatory Thereof, 470. (4^) Agreement Admissible to Explain Untrue Statements Made by a Testator, 470. f. Letters, 470. (6) Letters of the Agent or Attorney of a Party, 470. o. Entries and Memoranda of a Private Character, 470. (4) Entries in Books of Account, 470. CROSS REFERENCES. See the title Documentary Evidence, vol. 5, p. 431, and references there given. In addition, see ante, Affidavits, p. 16 ; Best and Secondary Evidence, p. 202; post, Judgments and Decrees; Judicial Notice; Records; Wills. II. Rules Applicable to Specific Documents. A. Official Public Documents — 1. Admissibility — d>^. Condemnation Proceedings.- — Condemnation proceedings under which the United States claims title to 3 military reservation, the scene of a crime, is admissible in evidence to show that the reservation was within the exclusive jurisdiction of the L'nited States. "'' e. Records and Documents of the Bxeciitive Departments of the United States Government — (4) Records and Documents of the War Department. — Book Showing Titles to Military Reservation. — A book compiled under the author- 428-67a. Condition of opening default. 437-22a. Admissibility of condemnation — Bennett v. Bennett, 208 U. S. 505, 53 proceedings. — Holt v. United States, 218 L. Ed. 590, 28 S. Ct. .356. . U. S. 245, '54 L. Ed. 1021, 31 S. Ct. 2, af- firming 168 Fed. Rep. 141. 469 441-462 DOCUMENTARY EVIDBNCB. Vol. V. ity of the war department showing titles to a military reservation, the scene of a crime, is admissible in evidence to show that the reservation was within the ex- clusive jurisdiction of the United States.^^^ 1. Maps, Plats and Surveys. — See note 70. 2. Necessity and Mode of Proving— e. Copy of Certificate of Enrollment of a J'esseL— The genuineness of the authentication of a copy of a certificate of enrollment offered in evidence to establish the national character of a vessel on a prosecution for a crime committed on shipboard will be assumed, as will also the official character of the purported signer and the signing by him, or one au- thorized to sign for him, where there is no evidence casting suspicion upon the genuineness of the copy or of the seal, or the signature, and none which chal- lenges in any way the American character of the ship.^^^ 0. Private Documents — 1. Admissibility — a. Deeds — (1) For What Purposes Deeds Are Admissible— id.) To Prove Ozunership or Title. — The deeds under which the United States claims title to a military reservation, the scene of a crime, are admissible in evidence to show that such reservation was within the exclusive jurisdiction of the United States.^-'' c. Written Contracts and Documents Explanatory Thereof — (41/2) Agree- ment Admissible to Explain Untrue Statements Made by a Testator. — A written agreement between a testator and his wife, in which the latter relinquished all claim to her husband's property and all right to dower or alimony, and which concluded by stating that it was intended to restore to the parties the same con- tractual and property rights as they possessed before marriage, is admissible in evidence to explain the testator's untrue statements that he was a widower and had been divorced, which had been admitted in evidence as proof of his mental unsoundness.'*^^ f. Letters — ^"(6) Letters of the Agent or Attorney of a Party. — Letter of Counsel of Accused in a Criminal Case. — ^A letter written by counsel for the accused, with the latter's consent, and by his direction, in reply to a letter charg- ing him with having abstracted certain correspondence from the files of a cor- poration, should be admitted in evidence in a criminal case to explain the letter of accusation, already admitted in evidence without objection, for the purpose of showing a suppression or spoliation of evidence.^^^ o. Entries and Memoranda of a Private Character — (4) Entries in Books of Account. — See note 97. 441-44a. Book showing titles to mili- 1021, 31 S. Ct. 2, affirming 168 Fed. Rep. tary reservation. — Holt v. United States, 141. 218 U. S. 245, .54 L. Ed. 1021, 31 S. Ct. 2, 454-44a. Agreement admissible to ex- affirming 168 Fed. Rep. 141. plain untrue statements made by a testa- 444-70! Official maps made under au- tor. — Turner v. American, etc., Trust Co., thority of war department.— The official 213 U. S. 257, 53 L. Ed. 788, 29 S. Ct. maps in the engineers department, made 420. from original surveys under the author- 457-65a. Letter of agent or attorney of ity of the war department, are admissi- party. — Crawford v. United States, 212 ble in evidence to show that a military U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260. reservation, the scene of a crime, was 462-97. The possibility of forgery goes within the exclusive jurisdiction of the to the weight, but not to the competency, United States. Holt v. United States, 218 of a private account book kept by one ac- U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, cused of conspiring to defraud the United affirming 168 Fed. Rep. 141. States, which contains entries relating to 446-86a. Authentication of copy of cer- financial transactions between him and tificate of enrollment of a vessel. — his alleged accomplice in connection with Wynne v. United States. 217 U. S. 234, a contract between a corporation and the 54 L. Ed. 748, 30 S. Ct. 447. United States, where he offers such book 449-12a. Deeds admissible to show mil- in evidence to corroborate his testimony itary reservation within the exclusive on the issue whether he received money jurisdiction of the United States. — Holt back from such alleged accomplice for V. United States, 218 U. S. 245, 54 L. Ed. which he did not account to the corpora- 470 Vol. V. DOING BUSINESS. 471 DOCUMENTS. — As to what is included by the term documents in the bank- rupt law, see ante, Bankruptcy, p. 168. DOING BUSINESS.— See note 1. tion, but concealed from it, and testifies that such book is in the same condition as when he received it back from the president of the corporation, with the latter's check marks, indicating approval of the items. Judgment (1907) 30 App. D. C. 1, reversed. Crawford v. United States, 212 U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260. 471-1. Corporation tax act. — Under the corporation tax act the tax is imposed upon doing business in a corporate or quasi corporate capacity; that is, with the facility or advantage of corporate orga zation. Flint f. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342; Eliot V. Freeman, 230 U. S. 178, 55 L. Ed. 424, 31 S. Ct. 360. See post, EXCISE; REV- ENUE LAWS. Lease of property. — Corporations organ- ized for the purpose of doing business, and actually engaged in such activities as leasing property, collecting rents, manag- ing ofiice buildings, making investments of profits, or leasing ore lands and col- lecting royalties, managing wharves, di- viding profits, and in some cases invest- ing the surplus, are engaged in business within the meaning of the Act of August 5, 1909, § 38, imposing an excise upon the doing or carrying of business in a corpo- rate or quasi corporate capacity, and in the capacity necessary to make such or- ganization subject to the law. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. A corporation owning and leasing taxi- cabs and collecting rents therefrom is en- gaged in business within the meaning of the Act of August 5, 1909, § 38, imposing an exercise upon the doing or carrying on of business in a corporate or quasi cor- porate capacity. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Control and use of property without derivation of benefits. — Real estate trusts created by deed for the purchasing, im- proving, holding, or selling lands and buildings for the benefit of the sharehold- ers, which do not derive any benefit from, and are not organized under, any statute of the state, and which, by their terms, end with lives in being and twenty years thereafter, are not subject to the excise imposed by the act of August 5, 1909 (36 Stat, at L. 11, 112-117, chap. 6, U. S. Comp. Stat. Supp. 1909, pp. 659, 844-849) § 38, upon the doing of business by cor- porations, joint stock companies, or as- sociations "now or hereafter organized under the laws of the United States or of any state or territory." Eliot z'. Freeman, 220 U. S. 178, 55 L. Ed. 424. 31 S. Ct. 360. A corporation organized for the pur- pose of owning and renting an office build- ing, but which has wholly parted with the control and management of the property, and by the terms of a reorganization has disqualified itself from any activity in re- spect to it, its sole authorijtj being to hold the title subject to a lease for 130 years, and to receive and distribute the rentals which may accrue under the terms of the lease, or the proceeds of any sale of the land, if it shall be sold, is not doing busi- ness within the meaning of the Act of August 5, 1909 (36 Stat, at L. 11, 112-117, chap. 6, U. S. Comp. Stat. Supp. 1909, pp. 659, 844-849),_ § 38, imposing an excise upon the doing or the carrying on of business in a corporate or quasi corporate capacity. Zonne v. Minneapolis Syndi- cate, 220 U. S. 187, 55 L. Ed. 428, 31 S. Ct. 361. Solicitation of students for a corre- spondence school. — A foreign corporation conducting a correspondence school whose business involves the solicitation of students in Kansas by local agents, who are also to collect and forward to the home ofiice the tuition fees, and the systematic intercourse by correspondence between the company and its scholars and agents, wherever situated, and the trans- portation of the needful books, apparatus, and papers, is doing business within the state, within the meaning of Kan. Gen. Stat. 1901, § 1283, which prohibits the maintaining of an action in the Kansas courts by any corporation doing business in the state which has not filed with the secretary of state the statement of its condition, provided for by that section. Its transactions in Kansas, by means of which it secured applications for numerous persons for scholarships were not single or casual transactions, such as might be deemed incidental to its general business as a foreign corporation, but were parts of Its regular business continuously con- ducted in many states, for the benefit of its correspondence schools. International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481. Oil stored for distribution. — Where oil was not in movement through a state, hut had reached the destination of its first shipment, and was held there, not in necessary delay or accommodation to the means of transportation, but for the busi- ness purposes and profit of the company, and for the purpose of distribution, to fulfill orders already received; required storage there, the maintenance of the means of storage, of putting it in and taking it from storage; the company was doing business in the state. General Oil 471 487-494 DRAINS AND SBIVERS. Vol. V. DOMESTIC RELATIONS. — See post, Husband and Wife; Master and Servant; Parent and Child. DOMICILE. — See the title Domicile, vol. 5, p. 473, and references there given. In addition, see Courts, ante, p. 39'8; post, Foreign Judgments, Rec- ords AND Judicial Proceedings. As to domicile of a ship, see post, Ships and Shipping. DOMINION. — See post. International Law. DOUBLE INSURANCE.— See note 1. DOUBLE TAXATION.— See post, Taxation. DOWER. — See the title DowER, vol. 5, p. 487, and references there given. DRAFT. — See ante. Bills, Notes and Checks, p. 204. DRAINAGE. — See post. Drains and SewERS. As to reclamation of swamp and overflowed lands, see post, Public Lands. DRAINS AND SEWERS. CROSS REFERENCES. See the title Drains and Sewers, vol. 5, p. 492, and references there given. As to special assessments for the construction of drains and sewers, see post, Special Assessments. Constitutionality of Statutes. — A statute providing for the construction of drains is not rendered unconstitutional because the method provided for enforc- ing the statute against nonresidents is different from that against residents.'*^ Co. V. Grain, 209 U. S. 211, 230, 52 L. Ed. 754, 28 S. Ct. 475. Matters concerning insurance. — The receipt by a foreign insurance company at its home office of premiums upon poh- cies theretofore issued, together with four isolated acts extending over a period of three years, consisting in rewriting an existing policy, sending a check in pay- ment of a policy, to be delivered upon re- ceipt of certain unpaid assessments, and two adjustments within the state of claims which have accrued, do not con- stitute doing business within the state after the company's asserted withdrav^'al therefrom in good faith, so as to preclude it from revoking its designation of the state insurance commissioner as its agent to receive service of process. Hunter v. Mutual, etc., Ins. Co., 218 U. S. 573, 54 L. Ed. 1155, 31 S. Ct. 127. See post, FOR- EIGN CORPORATIONS. 487-1. Double insurance is insurance of the same interest. Allemannia Fire Ins. Go. V. Firemen's Ins. Co., 209 U. S. 326, 52 L. Ed. 815, 28 S. Ct. 544. See post, INSURANCE. 494-4a. C'onstitutionality of statute. — • District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. See, generally, ante, CONSTITUTIONAL LAW, p. 264. The Act of May 19, 1896, c. 206, 29 Stat. 125, providing for the drainage of the District of Columbia is a constitu- tional and valid enactment. The provi- sions of this act do not deprive nonresi- dent owners of their property without due process of law or deny them the equal protection of the law because one method is provided for enforcing the pro- vision of this act against resident own- ers and another method against nonresi- dent owners. District of Columbia v. Brooke. 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. The distinction between resident and nonresident owners of abutting property in the Act of May 19, 1896, creating a drainage system for the District of Co- lumbia in that the coercion of the law as to making connections with a sewer is by criminal punishment in the case of residents, whereas, against nonresident owners, the District does the work in case of their neglect, and assesses the cost against the property as a tax, does not invalidate the statute for discrimina- tion, even assuming that congress is for- bidden to enact discriminating legisla- tion. District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. The statute under consideration in the case at bar enjoins a duty on both resi- dent and nonresident lot owners, a duty necessary to be followed to preserve the health of the city. There is a difference only in the manner of enforcing it, a difference arising from the different sit- uation of the lot owners, and therefore competent for congress to regard in its legislation. In other words, under the circumstances presented by this record, the distinction between residents and 472 \'ol. V. DRAIXS AXD SHIVERS. 494 Power of Congress to Create Drainage System for District of Colum- bia. — Congress has the right to pass laws creating a drainage system for the District of Columbia and this right can not be controverted by a private individual owning property in a district. *^^ A property owner in the District of Columbia can not set up. as a reason why he should be exempted from the provisions of a genera] law for the drainage of the district, the fact that he has constructed a drainage system of his own which is of equal or superior efficiency to that pro- vided by the general law."'" Operation of Law. — It is no objection to a general drainage law that it op- erates equally on owners of occupied and unoccupied dwellings. ^"^ It has been held under a statute of the District of Columbia that a railroad company was re- quired to pay for the changes in sewers both inside and outside the railroad's right of way, made necessary by the elimination of grade crossings.-'*'* nonresidents is a proper basis for class- ification. It might not be under other circumstances. District of Columbia r. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560, citing Blake v. McCIung, 172 U. S. 239, 43 L. Ed. 432, 19 S. Ct. 165; S. C, 176 U. S. 59, 44 L. Ed. 371, 20 S. Ct. 307; Sully v. American Nat. Bank, 178 U. S. 289, 44 L. Ed. 1072, 20 S. Ct. 935. 494-5a. Power of congress to create. — District of Columbia :■• Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. 494-5b. Reason for exemption of prop- erty owner. — District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. "The second contention of defendant in error is that the record fails to dis- close that any nuisance existed on her property, or that the means of drainage already there was unsanitarj^ or insuffi- cient, or that any necessity existed for making the connection. This contention seems to be made in this court for the first time. It certainly received no no- tice from the court of appeals, and the fact that it assumes that there was means of drainage on defendant in error's lot is not alleged in her petition. But sup- pose the fact had been alleged, a property owner can not urge against the drainage system of the district that he had adopted a system of his own and challenge a com- parison with that of the district, and obey or disobey the law according to the result of the comparison. The contention vir- tually denies any power in congress to create a system of drainage to which a lot owner must conform." District of Columbia v. Brooke, 214 U. S. 138, 148, 53 L. Ed. 941, 29 S. Ct. 560. 494-5C. Operation of law. — District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. See, also, ante, COXSTITUTIOXAL LAW, p. 264. The fact that dwelling houses unoccu- pied is no reason why they should not be properly drained and an owner can not allege that he is deprived of his property without due process of law, because of a statute which compels the construction of a general sewerage system, merely be- cause his house is unoccupied at the time the sewerage is constructed. District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. "At best, defendant in error can only be heard against 'the evidential effect of the mere existence of an improvement,' because her property does not come within the category of unimproved prop- erty. Her improvements are dwelling houses, and their mere existence indicated the necessity for drainage. That they may sometimes be vacant is unimportant. What rights owners of lots differently improved' or owners of unimproved prop- erty may have is of no concern of de- fendant in error. Her contention, there- fore, that the act deprives her of due process of law is unsound." District of Columbia v. Brooke, 214 U. S. 138, 149, 53 L. Ed. 941, 29 S. Ct. 560. An abutting owner of property on which dwellings have been erected can not challenge the validity of a provision in the Act of May 9, 1896 (29 Stat, at L. 125, p. 206), creating a drainage system in the District of Columbia, which af- fects only owners of unimproved prop- erty. District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. Due process of law is not denied an abutting owner of property on which dwellings have been erected by the at- tempt, in the Act of May 19, 1896, creat- ing a drainage system in the District of Columbia, under which she is assessed for the expense of connecting her prop- erty with a sewer, to give a controlling evidential effect to the existence of such improvements as dwellings, as indicating the necessity for making such connection. District of Columbia v. Brooke, 214 U. S. 138, 53 L. Ed. 941, 29 S. Ct. 560. 494-5d. Liability of railroad for change in sewers. — New York, etc., Co. v. Dis- trict of Columbia, 223 U. S. 253, 56 L. Ed. 426, 32 S. Ct. 300. The cost of changing sewers both in- side and outside of a railroad right of 473 495-498 DUB DILIGENCE. Vol. V. DRAMATIZATION.— See note a. DRAWBACK.— See post, Revenue Laws. DRAWBRIDGE.— See ante, Admiralty, p. 10. DRAWER. — See ante, Bills, Notes and Checks, p. 204. DRUGS.— See note b. DRUMMERS. — See post, Due Process of Law. DRUNKENNESS. — See the title Drunkenness, vol. 5, p. 496, and refer- ences there given. DRY DOCK.— See note 1. DUE DILIGENCE.— See post. Negligence. way, made necessary by the elimination of grade crossings, pursuant to the Act of February 10, 1901 (31 Stat, at L. 767, chap. 353), and February 28, 1903 (32 Stat, at L. 909, chap. 856), is chargeable to the railway's contractor, under an agreement between such contractor and the District of Columbia, by which the district was to make the necessary changes in sewers and water mains upon deposit by the contractor of the esti- mated cost, where such estimate was more than 50 per cent in excess of what the changes within the right of way would cost, and where a different con- clusion could only be reached upon the supposition that the earlier act controlled and was thought by the district to con- trol, while in fact the district thought that the later act controlled, and required all the changes to be made at the ex- pense of the railway company, and there- fore of the contractor, its agent. New York, etc., Co. v. District of Columbia, 223 U. S. 253, 56 L. Ed. 426, 32 S. Ct. 300. 495-a. Dramatization. — Moving pic- tures portraying portions of an author's book was a dramatization of it. Drama may be achieved by action as well as by speech. Action can tell a story, display all the most vivid relations between men, and depict every kind of human emotion, without the aid of the word. It would be impossible to deny the title of drama to pantomime as played by masters of the art. Kalem Co. v. Harper Bros., 222 U. S. 55, 61, 56 L. Ed. 92, 32 S. Ct. 20. See ante, COPYRIGHT, p. 377. 495-b. Misleading statements as to drugs. — By §§ 6 and 8 of the Food and Drugs act of June 30, 1906, providing that the term "misbranded" "shall apply to all drugs or articles of food, * * * the package or label of which shall bear any statement, design, or device regard- ing such article, or the ingredients or substances contained therein, which shall be false or misleading in any particular," an argument is unfounded that contends that the words "statement which shall be misleading in any particular," as used in the statute, do not apply to drugs at all, that the statements referred to are those "regardmg such article," and that "article" means articles of food, mentioned by the side of drugs at the beginning of the section. United States v. Johnson, 221 U. S. 488, 55 L. Ed. 823, 31 S. Ct. 627. See post, POLICE POWER. See, also, post, MISBRANDED. 498-1. Difference between dry dock and an ordinary dock. — A dry dock differs from an ordinary dock only in the fact that it is smaller, and provided with ma- chinery for pumping out water in order that a vessel may be repaired. The Steamship Tefiferson, 215 U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54, quoting The Robert W. Parsons. 191 U. S. 17, 48 L. Ed. 73. See post, SALVAGE. 474 Vol. V. DUE PROCESS OF LAW. DUE PROCESS OF LAW. I. Origin and History of the Constitutional Amendments, 480. II. Definition and General Principles, 480. A. Xo Precise Definition, 480. ' B. Equivalent to Law of the Land, 480. C. Law of the Land; Definition and Principles, 480. 1. Generally; Prescribed by Acts of Congress and by the States, 480. 2. Neither Congress nor the States ]\Iake Anything Due Process They May Choose to Declare Such, 480. 3. By \Vhat Principles Determined, 480. 4. Requires Conformity to Fundamental Princi[jles, 481. a. Generally, 481. b. Notice and Opportunity for Hearing, 481. d. Forbids Arbitrary, Hostile or Discriminating Exercise of Power, 481. 5. Regards Substance and Not Form, 481. 6. ^lere Possibility of Evil or Hardship in Particular Instances Not Sufficient to Invalidate Law, 481. III. Persons Protected, 482. A. Aliens, 482. D. Natural and Artificial Persons, 482. 1. Private Corporations, 482. E. Persons in Naval or ISIilitarv Service, 482. F. Indians, 482. IV. Persons Entitled to Raise Constitutional Objections, 482. A. General Rule ; Complainant Must Come within Class Whose Rights Are Infringed, 482. V. Rules of Construction, 483. F, Construed in Light of Practical Aftairs; Local Conditions, Habits, Cus- toms and Traditions of Particular Communities, 483. VI. Of the General Operation and Effect of the Constitutional Guaran- ties, 484. A. As Restrictions upon State and Federal Power, 484. 2. The Fifth Amendment a Restriction upon the Federal Government ; the Fourteenth a Restriction upon the States, 484. 3. Efl:'ect of Fourteenth Amendment as Forbidding the States to Abridge the Rights Secured by the First Ten Amendments, 484. 4. The Fifth xA.mendment as a Restriction upon the Express Powers of Congress, 484. 4^. Operation of Due Process Clause as Forbidding Congress to Deny the Equal Protection of the Laws, 484. 7. No Radical Change in Theory of Government; a Restriction upon State Action Only, 485. 8. As to the Reserved Powers of the States, 485. a. As to the Right of the State to Adopt Its Own System of Laws and Change the Same at Pleasure, 485. (1) Generally, 485. (2) Limitations upon Power of State to Adopt Its Own Laws and to Change Same at Pleasure, 486. 475 DUB PROCESS OF LAW. Vol. V. (bj As to Wisdom, Justice or Policy of Legislation; Legislative Motives, 486. (c) Fundamental Rights and Principles Not to Be Ig- nored, nor Specific and Applicable Provisions of the Constitution, 486. b. Separation of Departments ; Delegation of Powers, 486. d. Qualifications, Powers, Tenure and Removal of State Officers, ~486. e. As to Power of State to Define and Punish Crime, 487. f. As to What Shall Constitute an Actionable Wrong; Damages Recoverable, 487. g. As a Limitation upon the Police Power, 488. 9. Legislative Power Limited to Persons and Property within the Ter- ritorial Jurisdiction of the State, 488. B. As to Acts Illegal under State Law ; as Requiring Proceedings to Com- ply with State Laws, 489. 4. Decision of State Court Conclusive as to Whether Act or Proceed- ing Was in Conformity to State Law and Practice, 489. 6. Scope of Review by Federal Supreme Court, 489. b. Decision of State Court as to Proper Construction of State Law Not Reviewable, 489. C. Liberty and the Deprivation Thereof, 491. L Definition and General Xature of Liberty, 49L 2. Liberty Subject to Reasonable Restraints, 491. a. Generally, under the Police Power, 49L b. Regulation of Business, Trade, Occupation or Profession, 492. c. Limitations of the Liberty of Contract, 492. (T) Generally. 492. 3. What Constitutes a Deprivation of Liberty, 494. i. Power to Prescribe Qualifications for Persons Desiring to Prac- tice Law, Medicine, etc., 494. m. Prohibiting Discharge of Employees Because ^Members of Labor Organizations, 494. n. Separation of the Races in Schools, Passenger Trains, Coaches, etc., 494. D. Property and the Deprivation Thereof, 495. L What Is Property within the ^Meaning of the Due Process Clause, 495. b. Property and the Incidents of Ownership- as Aft'ected by State Law and Usage, 495. c. Property Devoted to Public Use, 495. e. Citizenship as a Property or \'ested Right, 495. f. Property in Rule or Policv of Law, 495. g. Property Right in Public Office, 495. i. Interest or Estate in Profession or Occupation, 495. j. Right to Devise, Bequeath or Inherit Property; Inheritance Taxes, 495. k. Property Rights Jure Maritii, 496. 1. Contract Rights, 496. n. Rights under Corporate Charters, 496. o. Franchises as Property, 497. p. The Term Property as Applied to Lands, 497. (4) Rights of Riparian Owners, 497. (5) Subterranean Waters, 497. (6) Natural Gas and Oil, 497. 47G Vol. V. . DUE PROCESS OF LAW. (8) Remainders, Reversions, Executory Limitations, etc., 497. (9) Easements. Right of Way, etc.. 497. (10) Indian Lands. 497. s. Property and Tribal Rights of Indians, 497. t. Property in Photograph, 499. VI. Property in Money, Coin, Currency, etc., 499. 2. Deprivation of Property, 499. a. General Rules and Principles, 499. (5) A Question of Degree; Delusive Exactness Not Re- quired, 499. b. Taking or Damaging Private Property, 499. (2) Due Process Requires that Compensation Be Made for Property Taken, 499. (a) Generally, 499. (c) Where Property Held Subject to Easement, Serv- itude or Reserved Right in Favor of State, 499. (f) As to Amount and Measure; Elements of Dam- age, etc., 500. (3) A Distinction between Damaging and Taking, 500. (4) What Constitutes a Taking of Property, 500. ( a ) Generally, 500. ( b ) In the Exercise of the Police Power, 500. (aa) Generally,. 500. (bb) Regulation of the L'se and Enjoyment of Property, 500. ( ee ) Summary Destruction of Property Kept, Sold or L'sed in Molation of Law, 501. (ff) Regulation or Suppression of Business, Trade, Occupation, etc., 501. (ff^ ) Requiring Public Service Companies to Per- form Duties at a Pecuniary Loss. 501. (gg) Regulation of Rates, 503. (ii) Requiring Public Service Companies to Bear Expense Incident to Abolition of Crossings, Removal or Construction of Tracks. Bridges, Pipes, Paving of Right of Way, etc.. 503. ( mm ) Separate Coach Laws, 504. ( nn ) Limitations upon Police Power, 504. (b^ ) In the Exercise of the Power to Regulate Com- merce, 504. (c ) In the Exercise of the Taxing Power, 505. (d) Laws Respecting Rights of Action and Defenses, 505. (e) \'ested Rights under Judgments and Decrees, 505. (f) Changing Remedies and Procedure. 505. (dd) Retrospective Statutes of Limitation, 505. (aaa) Limiting Period in Which Action May Be Brought, 505. (h) Interference with Contract and Lien Rights. 505. (q) Rights of Riparian Owners, 506. (bb) Property Rights of Riparian Owners as De- termined by State Law, 506. (cc) Property Rights of Riparian Owners as Sub- DUB PROCESS OF LAW. Vol. V. servient to Right of Government to Improve Navigability of Stream, 506. (ee) Diversion of Waters, 507. (ff) Flooding of Lands, 508. (hh) Destruction of Access to Navigable Channel, Injury to Wharves, etc., 509. (ii) Injury or Destruction of Bridges, Tunnels, etc., 509. (5) Purpose for Which Property May Be Taken, 509. (a) Public Purpose Only, 509. (b) What Constitutes a Taking for a Public Purpose, 509. (aa) Determination of Character of Use; Func- tions of Court and Legislature, 509. (bb) As Affected by Local Conditions; Power of State to Declare Purpose Public, 510. (11) Railroads, 510. (zz^) Banks and Banking; Creation of Deposit- or's Guaranty Fund, 510. E. Due Process in Judicial and Administrative Proceedings, 51 L 1. General Rules and Principles, 511. a. Each State Prescribes Its Own Procedure, 511. b. Requirement Satisfied by the Regular Administration of Law through the Courts of Justice, 511. (1) Generally, 511. (2) QuaHfication of Rule; Regard to Be Had to Substance and Not to Form, 512. (3) Same; Mere Error Not a Denial of Due Process, 512. c. Established Methods Not Overturned ; Process Sufficient if Sanctioned by Common-Law Usage, 513. d. States Not Restricted to Common-Law Methods ; Due Proc- ess Not Determined by Matter of Age, 513. e. But State Can Not Make Anything Due Process It May Choose to Declare Such, 513. e^. Due Process Dependent upon Circumstances, 513. f. Limitations upon Legislative Powers with Respect to Remedies and Forms of Procedure, 513. (1) Generally; Requirement Satisfied by Regular Course of Proceedings before a Competent Tribunal, 513. (2) Judicial Proceeding Not Always Required, 513. (3) Legislative Judgments and Decrees, 514. 2. As Guaranteeing Equal and Impartial Justice to All Persons, 514. b. Requires an Impartial Tribunal, 514. c. Forbids Arbitrary Laws and Proceedings, 515. e. Preferring Resident Creditors, 515. 3. Notice, Hearing, Jurisdiction as Essential to Due Process of Law, 515. a. General Rule as to Jurisdiction, Notice and Opportunity for Hearing, 515. b. Qualification of Rule ; Notice and Hearing Not Required un- less Necessary for the Protection of the Parties, 516. (3) As to Statute or C)rdinance Fixing Rates for Use of Public Utilities, 516. (5) Necessity for Notice in Tax Proceedings, 517. d. The Right to Notice Implies the Right to Appear and Be Heard, 517. 478 Vol. V. DUB PROCESS OP LAW. e. Persons Entitled to Notice and Hearing, 518. i. Sufficiency of Notice and Hearing, 518. (1) Generally as to Notice, 518. (2) Determined by Substance, Not by Form, 518. (3) May Be Actual or Constructive, 518. 1. Notice, Hearing and Jurisdiction in Particular Proceedings, 518. 6. As to the Forum in Which Trial Is Had ; Change of Venue ; etc., 519. 11. Matters Admissible in Defense, 519. 12. Statutes Affecting Rules of Evidence, 521. 13. Laws Respecting Damages and Penalties, 521. 14. Attorneys' Fees, 522. 15. As to Form of Judgment or Decree, 522. 16. As to the Constitutionality of Reviewing, Modifying, or AnnulHng Judgments and Decrees, 523. 17. As Guaranteeing Right of Appeal, Rehearing, or Other Form of Review, 523. 18. Due Process on Appeal or Writ of Error, 523. a. Generally in State Courts, 523. b. Jurisdiction on Appeal ; Decisions Reviewable ; Scope of Re- view ; Rule of Decision,' etc., 523. c. Presumptions on Appeal, 524. 19. Due Process in Particular Proceedings, 524. i. Admission, Exclusion, and Deportation of Aliens, 524. 1. Escheats, 524. 20. Due Process in Criminal Proceedings, 525. a. As to the Power of the States to Define and Punish Crime and Regulate Criminal Proceedings, 525. b. As Requiring Equal and Impartial Justice, 525. c. As Requiring Full Judicial Trial; Summary Proceedings, 526. d. As Requiring a Competent Tribunal, 526. e. As Securing the Benefit of the First Ten Amendments to the Accused in a State Court, 526. f. Due Process as Requiring an Indictment by a Grand Jury; Number of Grand Jurors, 527. i. Form and Sufficiency of Indictment, 528. k. Due Process in the Granting and Refusing of Alotions, Chal- lenges, etc., 528. 1. Jury Trial Not Essential ; Number, Qualification, and Selec- tion of Jurors. 528. n. Due Process in the Admission and Exclusion of Evidence, 528. o. Instructions, 528. q. Punishments; Kind, Degree and Planner of Enforcement, 528. s. Appeal, Writ of Error, New Trial, etc., 529. VII. Remedies, 529. A. Generally of the Right to Some Form of Remedy, 529, B. Remedy against the United States, 530. C. Remedy against a State, 530. E. Particular Remedies, 531. CROSS REFERENCES. See the title Due Process of Law, vol. 5, p. 499, and references there given. 479 508-511 DUE PROCESS OF LAW Vol. V In addition, see Aliens, ante. p. 18; Chinese Exclusion Acts, p. 232; Civil Rights, p. 236; Constitutional Law, p. 264; Criminal Law, p. 434; post. Eminent Domain; Habeas Corpus; Impairment of Obligation of Con- tracts; Interstate and Foreign Commerce; Intoxicating Liquors; Jus- tices OF the Peace; Lotteries; Pleading; Police Power; Removal of Causes; Special Assessments; States; Succession Taxes; Summons and Process ; Taxation ; Trial ; United States. I. Origin and History of the Constitutional Amendments. See note 1. II. Definition and General Principles. A. No Precise Definition. — See note 2. B. Equivalent to Law of the Land. — See note 4. C. Law of the Land; Definition and Principles — 1. Generally; Pre- scribed BY Acts of Congress and by the States. — See note 10. 2. Neither Congress nor the States Make Anything Due Process They May Choose to Declare Such. — See note 11. 3. By \\'hat Principles Determined. — Must Look to the Constitution and to Settled Usages and Modes of Proceeding. — See note 14. 508-1. Origin and history of the amend- ^ ments. — Constitutional provisions to the effect that no state should deprive any person of life, liberty or property with- out due process of law appeared in most of the state constitutions long before the fourteenth amendment was adopted, and that principle was accepted everywhere as vital in the American systems of gov- ernment. Southwestern Oil Co. v. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. 508-2. No precise definition. — The fed- eral supreme court has never attempted to define with precision the words "due process of law." It is sufficient to say that there are certain immutable princi- ples of justice which inhere in the very idea of free government which no mem- ber of the Union may disregard. Holden V. Hardy, 169 U. S. 366, 389, 42 L. Ed. 780, 18 S. Ct. 383. "The same words re- fer to that law of the land in each state, which derives its authority from the in- herent and reserved powers of the state, exerted within the limits of those funda- mental principles of liberty and justice which lie at the base of all our civil and political institutions." Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14; In re Kemmler, 136 U. S. 436, 448. 34 L. Ed. 519, 10 S. Ct. 930. 508-4. Equivalent to "law of the land." — The words "due process of law" are equivalent in meaning to the words "law of the land,'" contained in that chapter of Magna Charta which provides that "no freedman shall be taken, or imprisoned, or disseised, or outlawed, or exiled, or any wise destroyed; nor shall we go upon him, nor send upon him, but by the law- ful judgment of his peers or by the law of the land." Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14; Murray v. Hoboken, etc., Imp. Co., 18 How. 272, 15 L. Ed. 372; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; Jones V. Robbins, 8 Graj% 329, Cooley, Const. Lim. 7th ed. 500; AIcGehee, Due Process of Law, 16. 510-10. States to establish, alter and amend their own systems. — A procedure settled in English law at the time of the immigration, and brought to this coun- try, and practiced by our ancestors, is not an essential element of due process of law. If it were, the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight jacket, only to be unloosed by constitutional amend- ment. Twining i\ New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. 511-11. Neither congress nor state to make due process anything they may choose to declare such. — Consistently with the requirements of due process, no change in ancient procedure can be made which disregaids those fundamental prin- ciples, to be ascertained from time to time by judicial action, which have rela- tion to process of law, and protect the citizen in his private right, and guard him against the arbitrary action of govern- ment. Twining v. New Jersey. 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. 511-14. Tested by settled usage and modes of proceeding. — What is due proc- ess of law may be ascertained by an ex- amination of those settled usages and modes of proceeding existing in the com- mon and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having 480 Vol. V. DUB PROCESS OF LAW. 512-517 4. Requires Coxformity to Fuxdamextal Prixciples — a. Generally. — The fundamental guarantee of due process is absolute and not merely relative.^"* b. Notice and Opportunity for Hearing. — See note 18. d. Forbids Arbitrary, Hostile or Discriminating Exercise of Power. — See note 22. Arbitrary and Oppressive Administration of Statutes. — See post, "Mere Possibility of Evil or Hardship in Particular Instances Xot Sufficient to Invali- date Law," II, C, 6. 5. Regards Substance and Not Form. — See post. "Construed in Light of Practical Affairs ; Local Conditions, Habits, Customs, and Traditions of Partic- ular Communities," V, F. 6. Mere Possibility of Evil or Hardship in Particular Ixstaxces Xot Sufficient to Invalidate Law^. — It is not sufificient to invalidate a statute as being opposed to the due process and equal protection clauses of the constitution that there is a mere possibility of evil, abuse or hardship arising in particular instances under its administration. In the framing of statutes, the constitution requires no such delusive exactness, and the criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.^'*^ been acted on by them after the settle- ment of this country. Twining z\ New Jersey, 211 U. S. 79, 53 L. Ed. 97, 29 S. Ct. 14. 512-17a. A fundamental guarantee — Absolute and not merely relative. — Ham- mond packing Co. v. Arkansas, 212 U. S. 322, 350, 53 L. Ed. 530, 29 S. Ct. 370. 512-18. Notice and opportunity for hearing. — The essential element of due process of law is an opportunity to be heard, and a necessary condition of such opportunity is notice. Jacob v. Roberts, 223 U. S. 261, 56 L. Ed. 429, 32 S. Ct. 303; Simon v. Craft, 182 U. S. 427, 45 L. Ed. 1165, 21 S. Ct. 836; Jordan v. Com- monwealth, 225 U. S. 167, 56 L. Ed. 1038, 32 S. Ct. 651: Twining v. New Jersey, 211 U. S. 78. Ill, 53 L. Ed. 97, 29 S. Ct. 14; Standard Oil Co. v. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. "Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction and that there shall be notice and opportunity for hearing given the parties. Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has, up to this time sustained all state laws, statutory or ju- dicially declared, regulating procedure, evidence, and methods of trials, and held them to be consistent with due process of law." Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14; Ameri- can Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200; Jordan v. Com- monwealth, 225 U. S. 167, 56 L. Ed. 1038, 32 S. Ct. 651; Standard Oil Co. v. Mis- souri. 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. 514-22. Same — Definition in Bank of Columbia v. Okely. — The words '" due 12 U S Enc— 31 481 process of law' were intended to secure the individual from the arbitrary exercise of the powers of government, unre- strained by the established principles of private rights and distributive justice." Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14; Bank v. Okley, 4 Wheat. 235, 244, 4 E. Ed. 559, approved in Hurtado v. California, 110 U. S. 516, 527, 28 L. Ed. 232, 4 S. Ct. Ill, 292; Leeper v. Texas, 139 U. S. 462, 468, 35 L. Ed. 225, 11 S. Ct. 577; Scott v. McNeal, 154 U. S. 34, 45, 38 L. Ed. 896, 14 S. Ct. 1108. 517-34a. Mere possibility of evil, abuse, or hardship, not sufficient to invalidate statute. — American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200; Blinn v. Nelson, 222 U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1; Paddell v. New York, 211 U. S. 446, 450, 53 L. Ed. 275, 29 S. Ct. 139. See, also, ante, CONSTITUTIONAL LAW, p. 264. See, also, post, "Con- strued in Light of Practical Affairs; Lo- cal Conditions, Habits, Customs, and Traditions of Particular Communities," V, F. You can not carry a constitution out with mathematical nicety to logical ex- tremes. If you could, we never should have heard of the police power; and this is still more true of taxation, which in most communities is a long way off from a logical and coherent theory. Paddell V. New York, 211 U. S. 446, 450, 53 L. Ed. 275, 29 S. Ct. 139. To argue that the provisions of a stat- ute are repugnant to the due process clause because a case may be conceived where rights in and to property would be adversely affected without notice being actually conveyed by the proceedings is in effect to deny the power of the state to deal with the subject. The criterion 518-520 DUE PROCESS OF LAW. Vol. V. III. Persons Protected. A. Aliens. — As to due process in the admission, exclusion and trial of aliens, see, generally, ante. Aliens, p. 18; Constitutional Law, p. 264. D. Natural and Artificial Persons — 1. Private Corporations. — See notes 38, 39, 41. E. Persons in Naval or Military Service. — \\'hat is due process of law must be determined by circumstances. To those in the military or naval service of the United States, military law is due process.^-^^ F. Indians. — See post, Indians. And see post, "Property and Tribal Rights of Indians," VI, D, 1, s. IV. Persons Entitled to Raise Constitutional Objections. A. General Rule; Complainant Must Come within Class Whose Rights Are Infringed. — See note 45. is not the possibility of conceivable in- jury, but the just and reasonable char- acter of the requirements, having refer- ence to the subject with v^hich the stat- ute deals. American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. If the legislature thinks that a year is long enough to allow a party to recover his property from a third hand, and estab- lishes that time in cases where he has not been heard of for fourteen years, and presumably is dead, it acts within its con- stitutional discretion. Now and then an extraordinary case may turn up, but con- stitutional law, like other mortal contriv- ances, has to take some chances, and in the great majority of instances, no doubt, justice will be done. Blinn v. Nelson, 222 U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1. See American Land Co. v. Zeiss, 219 U. S. 47, 67, 55 L. Ed. 82, 31 S. Ct. 200. 518-38. Private corporations — As per- sons within meaning of fourteenth amend- ment.— See ante, CONSTITUTIONAL LAW, p. 264. 519-39. As to foreign corporations, see, also, ante, CONSTITUTIONAL LAW, p. 264; post. FOREIGN CO RPO RA- TIONS; INTERSTATE AND FOR- EIGN COMMERCE. Under the Missouri Act of March 19, 1907, a domestic railway company might bring an action in the federal court, or, in a proper case, remove one thereto, without being subject to forfeiture of its right to do business, or the imposition of the penalties provided for in the act;" but as to foreign railway companies the stat- ute provided that in case they should bring a suit in the federal courts, or re- move it from the state courts to the fed- eral courts, their right to do business in the state should be forfeited and that they should be subject to the penalties pre- scribed in the act. Held, that as a for- eign corporation which had come within the state and complied with its laws, and which had acquired, under the sanction of the state, a large amount of property within its borders, and which had thus be- come a person within the state, within the meaning of the constitution and entitled to its protection, the statute was unconsti- tutional as denying the equal protection of the laws. Herndon v. Chicago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970. 30 S. Ct. 633; Roach v. Atchison, etc., R. Co., 218 U. S. 159, 54 L. Ed. 978, 30 S. Ct. 639, see, also, W'istern Union Tel. Co. v. Coleman. 216 U. -S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Pullman Co. v. Coleman, 216 U. S. 156, 54 L. Ed. 378, 30 S. Ct. 232; Ludwig v. West- ern Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280; Southern R. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. 519-41. "Liberty" refers only to liberty of natural persons. — Whatever "liberty of contract" a corporation may have must be exercised in subordination to any valid regulations the state may prescribe for the conduct of its business. German Al- liance Ins. Co. z!. Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246. 520-44a. Persons in naval or military service. — ^Reaves v. Ainsworth, 219 U. S. 296, 55 L. Ed. 255, 31 S. Ct. 230. The proceedings before the examining board, convened under Act Oct. 1, 1890. c. 1241, 26 Stat. 502 (U. S. Comp. St. 1901, p. 849), enacted to provide for the pro- inotion or retirement of army officers, which resulted in the discharge of an of- ficer with one year's pay, by order of the president, were not had without jurisdic- tion, and hence without due process of law, because the board had previously made an order that such officer was then physically incapacitated for service from disabilit}' contracted in line of duty, but had a reasonable hope of recovery, and that he could not with safety proceed with his examination, since such order was merely provisional, and not a final de- cision, which, under the law, would have entitled him to be retired with three quar- ters pay for life. Reaves v. Ainsworth, 219 U. S. 296, 55 L. Ed. 255, 31 S. Ct. 230, affirming judgment (1906) 28 App. D. C. 157. 520-45. General rule — Complainant must 4s:; Vol. V DUE PROCESS OF LAW. 526 V. Rules of Construction. F. Construed in Light of Practical Affairs; Local Conditions, Habits, Customs and Traditions of Particular Communities. — The due process clause is to be given a reasonable construction in consideration of the practical affairs of men. What is due process of law must be determined by circum- stances, and in passing upon the constitutionality of statutes alleged to be ob- noxious to the due process clause of the fourteenth amendment, the courts should be careful to avoid pressing the broad language of that amendment to a drily logical extreme without taking into consideration the local conditions which the statutes were intended to meet. Government is a moral and not a mathematical science, and you can not carry a constitution out with mathematical nicety to logical extremes. Upon questions of this kind, local conditions and the long- settled habits, customs and traditions of the community play a part as well as grammar and logic. ^^^ come within class whose rights are in- fringed. — One who would strike down a state statute as violative of the federal constitution must bring himself by proper averments and showing within the class as to whom the act thus attacked is un- constitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates as to de- prive him of rights protected by the fed- eral constitution. Standard Stock Food Co. V. Wright, 225 U. S. 540. 56 L. Ed. 1197, 32 S. Ct. 784; Southern R. Co. v. King, 217 U. S. 524, 534, 54 L. Ed. 868, 30 S. Ct. 594; Tyler v. Judges, 179 U. S. 405, 45 L. Ed. 252, 21 S. Ct. 206; Collins z: Texas, 223 U. S. 288, 56 L. Ed. 439, 32 S. Ct. 286. See, generally, on his point ante, CONSTITUTIONAL LAW, p. 264. 526-58a. Construed in light of practical affairs — Local conditions, habits, customs, and traditions of particular communities. —Noble State Bank v. Haskell, 219 U. S. 104. 55 L. Ed. 112, 31 S. Ct. 186. followed in Shallenberger v. First State Bank. 219 U. S. 13 4. 55 L. Ed. 117, 31 S. Ct. 189; Pad- dell V. New York, 211 U. S. 446, 448, 53 L. Ed. 275, 29 S. Ct. 139; Reaves r. Ains- worth, 219 U. S. 296. 55 L. Ed. 255, 31 S. Ct. 230; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301; Hairston v. Danville, etc., R. Co., 208 U. S. 598. 607, 52 L. Ed. 637, 28 S. Ct. 331. See, also, ante, CONSTITU- TIONAL LAW, 'p. 264; post. POLICE POWER. What is due process of law must be determined by circumstances. To those in the niilitary or naval services of the United States, the military law is due process. Reaves v. Ainsworth, 219 U. S. 296, 55 L. Ed. 255, 31 S. Ct. 230. Upon question of constitutional law, due process, the long settled habits of the community play a part as well as gram- mar and logic. Paddell v. New York, 211 U. S. 446, 448, 53 L. Ed. 275, 29 S. Ct. 139. In questions of this kind great caution mAist be used in overruling the decision of the local authorities, or in allowing it to be overruled. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. The extent to which legislation may modify and restrict the uses of property consistently with the constitution is not a question for pure abstract theory alone. Tradition and the habits of the com- munity count for more than logic. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. The legislation being familiar with local conditions, is primarily the judge of the necessity of such enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power. Williams v. Arkansas 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493. You can not carry a constitution out with mathematical nicety to logical ex- tremes. If you could, we never should have heard of the police power. And this is still more true of taxation, which in most communities is a long way off from a logical and coherent theory. Paddell v. New York, 211 U. S. 446, 450, 53 L. Ed. 275, 29 S. Ct. 139. "In determining whether the fourteenth amendment has been violated and a per- son deprived of liberty or property with- out due process of law in the exercise of the police power of the states we must be cautious about pressing the broad words of that amendinent to a drily logical ex- treme. i\Iany laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or an- other of the great guaranties in the bill of rights. They more or less limit the lib- erty of the individual, or they diminish property to a certain extent. We have few scientifically certain criteria of legis- lation, and as it often is difficult to mark the line where what is called the police 483 527-528 DUE PROCESS OF LAW. Vol. V. VI. Of the General Operation and Effect of the Constitutional Guaranties. A. "As Restrictions upon State and Federal Power — 2. The Fifth Amendment a Restriction upon the Federal Governme;nt; the Four- teenth A Restriction upon the States. — See note 65. 3. Effect of Fourteenth Amendment as Forbidding the States to Abridge the Rights Secured by the First Ten Amendments. — It is possible that some of the personal rights safeguarded by the first eight amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. But if this is so, it is not because those rights are enumerated in the first eight amendments, but be- cause they are of such a nature that they are included in the conception of due process of law.^*^*^ 4. The Fifth Amendment as a Restriction upon the Express Powers of Congress. — Power to Regulate Commerce. — See post, "In the Exercise of the Power to Regulate Commerce," VI, D, 2, b, (4), (b^). See, also, post. Interstate and Foreign Commerce. Power of Congress to Define and Punish Crime — Elements of Offense. — The power of congress to declare an oft'ense and to exclude the elements of knowledge and due diligence from any inquiry as to its commission can not be questioned.*'^'* 4 ^. Operation of Due Process Clause as Forbidding Congress to Deny the Equal Protection of the Laws. — See ante, Constitutional Law, p. 264. power of the state is limited by the con- stitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the lawmaking power." Noble State Bank v. Haskell, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 186; fol- lowed in Shallenberger v. First State Bank, 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189. 527-65. Fifth amendment a restriction upon the federal government. — By the un- varying decisions of the federal supreme court the first ten amendments of the fed- eral constitution are restrictive only of national action. Twining v. New Jersey, 211 U. S. 78, 92, 53 L. Ed. 97, 29 S. Ct. 14; Ughbanks v. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372; Spies v. Illinois, 123 U. S. 131, 31 L. Ed. 80, 8 S. Ct. 21; Eilenbecker v. District Courts, 134 U. S. 31, 33 L. Ed. 801, 10 S. Ct. 424; Brown v. New Jersey, 175 U. S. 172, 174, 44 L. Ed. 119, 20 S. Ct. 77; Maxwell v. Dow, 176 U. S. 581, 586, 44 L. Ed. 597, 20 S. Ct. 448. Const. U. S. Amend. 5, is not restrictive of state, but only of national, action. Judgment, In re City of Pittsburg, 66 A. 348,^217 Pa. 227; Appeal of Hunter, Id., affirmed. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. 527-66a. Effect of fourteenth amendment as forbidding the states to abridge the rights secured by the first ten amend- ments. — Twining v. New Jersey, 211 U. S. 78. 53 L. Ed. '97, 29 S. Ct. 14, citing Chi- cago, etc., R. Co. V. Chicago, 166 U. S. 226, 41 L. Ed. 979. 17 S. Ct. 581. Same — Exemption from self-incrimina- tion. — The privilege of exemption from self-incrimination is not fundamental in due process of law, nor is it an essential part of it. It is not, therefore, safe- guarded as against state action by the due process clause of the fourteenth amend- ment. Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. 528-69a. Power to define and punish crime. — Chicago, etc., R. Co. v. United Stales, 220 U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612. • For example, it was competent for con- gress, in enacting the Safety Appliance Acts of March 2,^893 (27 Stat, at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), April 1, 1896 (29 Stat, at L. 85, c. 87, U. S. Comp. Stat. 1901, p. 3175), and March 2, 1903 (32 Stat, at L. 943, chap. 976, U. 5. Comp. Stat. Supp. 1909, p. 1143), to im- pose an absolute liability upon carriers engaged in moving interstate commerce, whose cars do not satisfy the require- ments of those acts, so that the carriers whose cars do not conform to the re- quirements of those acts can not escape liability by showing that they exercised reasonable care in equipping their cars with required safety appliances, and that they used due care and diligence to keep them in repair by the usual inspection. In short, it was competent for congress to impose upon the carriers an absolute duty which is not discharged by the exercise of reasonable care and diligence. Chicago, etc., R. Co. V. United States. 220 U. S. 559. 55 L. Ed. 582, 31 S. Ct. 612, following St. Louis, etc., R. Co. v. Taylor, 210 U. S. ;i81, 52 L. Ed. 1061, 28 S. Ct. 616. 484 Vol. V DUE PROCESS OF LAW. 530-532 7. Xo Radical Change in Theory of Government; a Restriction upon State: Action Only. — See notes 76, 77, 80. 8. As TO THE Reserved Powers oe the States — a. As to the Right of the State to Adopt Its Own System of Laws and Change the Same at Pleasure — (1) Generally. — Creation and Control of Municipal Subdivisions. — The creation and control of its municipal subdivisions, such as the power to sub- divide, consolidate or annex existing municipalities without the consent of the inhabitants resident therein, is a matter entirely within the control of the state. ^^^ 530-76. No radical change in theory of government. — The fourteenth amendment did not radicall}^ change the whole theory of the relations of the state and federal governments to each other and of both governments to the people. Jordan v. Commonwealth, 225 U. S. 167, 56 L. Ed. 1038. 32 S. Ct. 651; In re Kemmler, 136 U. S. 436, 448, 34 L. Ed. 519, 10 S. Ct. 930; Brown v. New Jersey, 175 U. S. 172, 175, 44 L. Ed. 119, 20 S. Ct. 77. Looking at the clause of the amendment prohibiting the deprivation of property without due process of law, it 583-9. Uncompensated removal of bridges, etc. — vSee, also, post, INTER- STATE AND FOREIGN COAIMERCE; POLICE POWER. A bridge over an interstate waterway, though erected under the sanction of a state law, and not an illegal structure, or an unreasonable obstruction to navigation in the condition of commerce and navigation when erected, must be taken as having been constructed with knowl- edge of the paramount power of con- gress to regulate commerce among the states, and subject to the condition or 503 584 DUE PROCESS OF LAW. Vol. V. (mm) Separate Coach Laws. — See ante, Civil Rights, p. 236. (nn) Limitations upon Police Power. — See post, Police Power. (b^) In the Exercise of the Power to Regulate Commerce. — See, generally, post. Interstate and Foreign Commerce. See, also, ante, "A Distinction be- tween Damaging and Taking," VI, D, 2, b, (3). As to the control of congress over the navigable waters of the United States and the power to remove bridges and other obstructions, establish harbor lines, etc., see post. Interstate and Foreign Commerce; Navigable Waters. See, also, ante, "Requiring Public Service Companies to Bear Expense Incident to Abolition of Crossings, Removal or Construction of Tracks, Bridges, Pipes, Paving Right of Way, etc.," VI, D, 2. possibility that congress might, at some time after its construction, and for the protection or benefit of the public, exert its constitutional power to protect free navigation as it then was against unrea- sonable obstructions. United States v. Monongahela Bridge Co. (D. C), 160 Fed. 712, affirmed in Monongahela Bridge Co. V. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. The mere silence of congress and its failure directly to interfere and prevent the original construction of a bridge erected under the sanction of a state law, over an interstate waterway, iinposes no constitutional obligation upon the United States to make compensation for subse- quent changes or alterations which the public good, in its judgment, requires. Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 35G. To require alterations or changes in a particular bridge, within a specified time, and after the parties have been heard, was not such a taking of private property for public use as must, under the constitu- tion, be preceded by the making of or suf- ficiently securing compensation to the owners of the bridge. Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. The action of the secretary of war in requiring changes in a bridge over an in- terstate waterway within a specified time, and after the parties have been heard, conformably to the Act of March 3, 1899, § 18, enacted to secure navigation against unreasonable obstruction, is not such a taking of private property for pub- lic use as must, under the federal con- stitution, be preceded by making, or suf- ficiently securing, compensation to the owners of the bridge. Monongahela Bridge Co. V. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. 584-13. Expense incident to opening street, establishing crossing, building bridges, etc. — The expense of construct- ing a railway bridge over a highway, made necessary by the action of the inunicipal- ity in opening such highway through the railway company's embankment, may be cast upon the railway company without denying the due process of law guar- anteed by the federal constitution, which requires that compensation be made when private property is taken for public use. Cincinnati, etc., R. Co. v. Connersville, 218 U. S. 336, 54 L. Ed. 1060, 31 S. Ct. 93, affirming judgment 83 N. E. 503, 170 Ind. 316. The question as to the right of the rail- way company to be reimbursed for any moneys necessarily expended in con- structing the bridge in question, is we think, concluded by former decisions of this court; particularly by Chicago, etc., R. Co. V. Drainage Comm'rs, 200 U. S. 561, 601, 50 L. Ed. 596, 26 S. Ct. 341; New Orleans Gas Light Co. v. Drainage Comm'rs, 197 U. S. 453, 49 L. Ed. 831, 25 S. Ct. 471; New York, etc., R. Co. v. Bris- tol, 151 U. S. 556, 571, 38 L. Ed. 269, 14 S. Ct. 437; Chicago, etc., R. Co. v. Chicago, 166 U. S. 226, 254, 41 L. Ed. 979, 17 S. Ct. 581; Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336. See, also. Union Bridge Co. v. United States, 204 U. S. 364, 51 L. Ed. 523, 27 S. Ct. 367; Cincinnati, etc., R. Co. V. Connersville, 218 U. S. 336, 54 L. Ed. 1060, 31 S. Ct. 93. The railway company accepted its fran- chise from the state, subject necessarily to the condition that it would conform at its own expense to any regulations, not arbitrary in their character, as to the open- ing or use of streets, which had for their object the safety of the public, or the promotion of the public convenience, and which might, from time to time, be es- tablished by the municipality, when pro- ceeding under legislative authority, within whose limits the company's business was conducted. Cincinnati, etc., R. Co. v. Con- nersville, 218 U. S. 336, 54 L. Ed. 1060, 31 S. Ct. 93. A judgment of the district court of Hen- nepin County, Minnesota, enforcing by mandamus municipal legislation requir- ing a railway company to construct at its own expense a bridge to carry over its tracks a street which was not extended over the right of way until after the rail- road was built, upheld as not impairing tlic obligation of contracts and affirmed on the authority of Northern Pac. R. Co. V. Duluth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341; St. Paul, etc., R. Co. v. Minne- apolis, 214 U. S. 497, 53 L. Ed. 1060, 29 S. Ct. 698. 504 Vol. V. DUB PROCESS OF LAW. 587-589 b, (4), (b), (ii) ; post, "Right of Riparian Owners," VI, D, 2, b, (4), (q). As to any vested or property right to import or traffic in certain articles of commerce which congress may see fit to prescribe or prohibit, see post, Interstate axd FoREiGx Commerce. As to the power of congress to prohibit the making of contracts in violation of statutes regulating commerce, or to prevent the carrying out of existing contracts valid at the time when made, such as contracts for re- bates, reduced rates, etc., see post, Interstate and Foreign Commerce. As to the power of congress to secure the effective operation of certain regulations by prohibiting the making of contracts modifying or waiving the provisions of the statute, such as forbidding contracts for the waiver of statutory provisions re- lating to suits for personal injuries by the acceptance of benefits under a mem- bership in a railway relief department, see post. Interstate and Foreign Com- merce. (c) /;; the Exercise of the Taxing Po-wcr. — See post. Taxation. (d) Lazi's Respecting Rights of Action and Defenses. — See ante, "As to What Shall Constitute an Actionable Wrong; Damages Recoverable," \1, A, 8, f; post, "blatters Admissible in Defense," \'l, E, 11 ; "Laws Respecting Damages and Penalties," VI, E, 13. See, also, ante. Constitutional Law, p. 264; post, Police Power. As to the powers of territorial legislatures, see ante. Constitu- tional Law, p. 264. (e) Vested Rights under Judgments and Decrees. — See ante, Constitutional Law, p. 264. See note 26. (f) Changing Ronedies and Procedure — (dd) Retrospective Statutes of Lim- itation — (aaa) Limiting Period in Which Action May Be Brought. — See note 31. (h) Interference zuith Contract and Lien Rights. — See ante. "The Fifth 587-26. Vested right under judgments and decrees — Administrative ruling. — Due process of law does not assure to a tax- payer the interpretation of state legisla- tion by the executive officers of a state as against its interpretation by the courts of the state, or relief from the consequences of a misinterpretation by either. Thomp- son v. Commonwealth, 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533, affirmed 29 Ky. Law Rep. 705, 94 S. W. 654. In other words, a person relying upon the interpretation given an act bj^ the exec- utive officers of the state must take his chances upon their decision being over- ruled by a different construction placed upon the act by the judicial officers of the state; and the subsequent enforcement of the act against him according' to the con- struction placed upon it bj^ the judicial of- ficers of the state is not denial of due proc- ess of law. Thompson v. Common- wealth, 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533, affirmed 29 Ky. Law Rep. 705, 94 S. W. 654. Thus, where the state law required the warehouseman to pay the taxes upon liq- uors stored in a bonded warehouse, and gave him a lien upon the liquors for taxes and interest paid, and the warehouseman, relying upon the construction placed upon the act by the executive and administra- tive officers of the state, paid the taxes without paying any interest, it was held that the state was not estopped from col- lecting the interest required by a proper construction of the statute, notwithstand- ing the liquors had, since the previous payment, been withdrawn from the ware- house, and that, in so doing, it did not de- prive the warehouseman of his property without due process of law in violation of the fourteenth amendment. Thompson V. Commonwealth, 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533, affirmed 29 Ky. Law Rep. 705, 94 S. W. 654. 589-31. Limiting time for bringing action. — If the legislature thinks that a year is long enough to allow a party to recover his property from a third hand, and establishes that time in cases where he has not been heard of for fourteen years, and presumably is dead, it acts within its constitutional discretion. Now and then an extraordinary case maj- turn up, but constitutional law, like other mor- tal contrivances, has to take some chances, and in the great majority of instances, no doubt, justice will be done. Blinn z: Nel- son, 222 U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1. See American Land Co. v. Zeiss. 219 U S. 47, 67, 55 L. Ed. 82. 31 S. Ct. 200. See, also, post, LIMITATION OF ACTIONS AND ADVERSE POSSESSION. See, also, ante, "Alere Possibility of Evil or Hardship in Particular Instances Not Suf- ficient to Invalidate Law," II, C, 6; ''Con- strued in Light of Practical AlTairs; Lot- Conditions, Habits, Customs and Tradi- tions of Particular Communities," V, F. 5o; 596-598 DUB PROCESS OP LAW. Vol. V. Amendment as a Restriction upon the Express Powers of Congress," VI, A, 4; "A Distinction between Damaging and Taking," VI, D, 2, b, (3) ; "In the Exer- cise of the Power to Regulate Commerce," VI, D, 2, b, (4), (b^), and references there given. See, generally, post, Impairment of Obi,igation of Contracts ; Interstate and Foreign Commerce; Police Power. (q) Rights of Riparian Owners — (bb) Property Rights of Riparian Ozuners as Determined by State Law. — See note 50. (cc) Property Rights of Riparian- Ozuners as Subservient to Right of Govern- ment to Improve Navigability of Stream. — See notes 54, 56. 596-50. Rights of riparian owners — As determined by state law. — The rights of a riparian owner upon a navigable stream in this country are governed by the law of the state in which the stream is situ- ated. Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. 598-54. As subservient to right of gov- ernment to improve navigability, remove obstructions, etc. — While as between the state and an individual riparian proprie- tor, the limits of his proprietorship, as ex- tending to high water or low water marks, etc., is determined by the state law, yet with respect to public navigable waters constituting highways of interstate com- merce, this power of the state and the rights of individuals acquired under state laws and regulations, are subject to the paramount public right of navigation and the power of congress to control the same. Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661; Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. "Commerce includes navigation. The power to regulate commerce compre- hends the control for that purpose, and to the extent necessary, of all the naviga- ble waters of the United States which are -accessible from a state other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by congress. This necessarily includes the power to keep them open and free from any obstructions to their navigation, in- terposed by the states or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of of- fenders. For these purposes, congress pos- sesses all the powers which existed in the states before the adoption of the national constitution, and which have always ex- isted in the parliament in England." Phil- adelphia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340; Oilman v. Phil- adelphia, 3 Wall. 713, 725, 18 L. Ed. 96. Under its paramount power to regulate commerce on and over the navigable waters of the United States, congress can require that such waters be freed from unreasonable obstructions to navigation. Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. It is for congress, under the constitu- tion, to regulate the right of navigation by all appropriate means, to declare what is necessary to be done in order to free navigation from obstruction, and to pre- scribe the way in which the question of obstruction shall be determined. Its action in the premises can not be revised or ig- nored by the courts or by juries, except that when it provides for an investigation of the facts, upon notice and after hear- ing, before final action is taken, the courts can see to it that executive officers con- form their actions to the mode pre- scribed by congress. Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. It is for congress to decide what shall or shall not be deemed in judgment of law an obstruction of navigation. Penn- sylvania V. Wheeling, etc.. Bridge Co., 18 How. 421, 15 L. Ed. 435. And in its regu- lation of commerce it may establish har- bor lines or limits beyond which deposits shall not be made or structures built in the navigable waters. The principles ap- plicable to this case have been repeatedly stated in recent decisions of the federal supreme court. Philadelphia Co. v. Stim- son, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340; Gibson v. United States, 166 U. S. 269, 41 L. Ed. 996, 17 S. Ct. 578; Scran- ton V. Wheeler, 179 U. S. 141, 45 L. Ed. 126, 21 S. Ct. 48; Chicago, etc., R. Co. v. Drainage Comm'rs, 200 U. S. 561, 50 L. Ed. 596, 26 -S. Ct. 341; West Chicago St. R. Co. V. Chicago, 201 U. S. 506, 50 L. Ed. 845; Union Bridge Co. v. United States, 204 U. S. 364, 51 L. Ed. 523, 27 S. Ct. 367; Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356; Hannibal Bridge Co. v. United States, 221 U. S. 11?4, 55 L. Ed. 699. 31 S. Ct. 603. Jurisdiction of congress follows shift- ing of stream — Right to establish harbor lines or improvements. — The authority of congress is not limited to so much of the water of the river as flows over the bed of forty years ago. The alteration produced in the course of years by the action of the water does not restrict the exercise of federal control in the regu- 506 Vol. V. DUB PROCESS OF LAW. 598 (ee) Diversion of Waters. — Right of Riparian Owner to Divert Waters. — Neither the due process nor equal protection clauses of the fourteenth amend- lation of commerce. Its bed may vary and its banks may change, but the federal power remains paramount over the stream, and this control may not be de- feated by the action of the state in re- stricting the public right of navigation within the river's ancient lines. The pub- lic right of navigation follows the stream (Rolle's Abr. 390; Carlisle v. Graham, L. R. 4 Exch. 361, 367, 368, L. J. Exch. N. S. 226, 21 L. T. N. S. 133, 18 Week. Rep. 318), and the authority of congress goes with it. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. It is not within the power of the state, therefore, as against this supreme power of congress, to establish a high water line and vest a right of property in the riparian owner out to this line as a fixed and permanent limit of his property with- out regard to subsequent shiftings, vari- ations and encroachments of such line caused by natural forces. The jurisdiction of congress follows the stream, and at- taches to it in its actual location at the time congress undertakes to deal with it. Hence, if at the time congress undertakes to deal with the stream, the waters thereof have encroached upon the land of the riparian proprietor, and the actual high water line has moved landward over his land, so that it no longer coincides with the statutory line previously fixed by the state, it is competent for congress, in establishing harbor lines or in defining the navigable channel, to establish such lines coincident with the then actual and existing high water line, and prevent the riparian proprietor from wharfing out, filling in, or otherwise reclaiming or ex- ercising dominion out to the former stat- utory line established by the state and fixed by it as the perpetual boundary of his land and limit of his proprietorship as a riparian owner; and in so doing con- gress does not deprive him of his prop- erty without compensation, and therefore without due process of law, since, as against the paramount right of the United States over interstate commerce and pub- lic navigable interstate streams, it was not competent for the state to confer any such property right upon him. Philadel- phia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. The action of a state in providing by statute for fixing the lines of ordinary high and low water in certain rivers, and that the lines so fixed shall be firm and stable for the purposes intended by the statute, however effective as between the state and riparian owners to fix a per- manent boundary at the high water line so fixed, gives such owners no rights which will prevent congress, in the exer- cise of its right to regulate commerce, from fixing harbor lines in accordance with the high water mark as changed by the wearing away of the banks in the course of years. Philadelphia Co. v. Stim- son, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. When the state of Pennsylvania estab- lished harbor lines and thus undertook to regulate the rights of navigation, its action, however effective as between the state and the riparian proprietors, was necessarily subject to the paramount power of congress. The state lines can be conceded no permanent force, as against the will of congress, without sub- stituting for its constitutional authority the supremacy of the state with respect to navigable waters. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. It appeared from the facts in this case that the shifting of the bed of the stream had been gradual and not by any sudden and perceptible shifting or abandonment of its channel or tearing away plaintiff's soil adjacent thereto. It further appeared that the harbor lines, established under the authority of congress, were estab- lished before the riparian owner had wharfed out, filled in, or otherwise re- claimed the submerged land out to the old statutory line established by the state. The actual case was a bill for an injunc- tion against the secretary of war to re- strain him from a threatened criminal prosecution of the plaintiff in case plain- tiff should undertake to reclaim the sub- merged land beyond the harbor line es- tablished by the war department and out to the former high water line established by the state. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. Establishment of general system of harbor lines, injunction. — It has been held that the establishment of a general sys- tem of harbor lines, for the protection of commerce and navigation, is not of itself an injury to property and can not be re- strained. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340; Yesler v. Washington Harbor Line Comm'rs, 146 U. S. 646, 656, 36 L. Ed. 1119, 13 S. Ct. 190; Prosser v. Northern Pac. Railroad, 152 U. S. 59, 65, 38 h. Ed. 352, 14 S. Ct. 528. But it has also been recognized that a different question arises when active measures are taken against an individual proprietor to maintain a location of limits in alleged violation of his private rights, and thus to prevent him from enjoying what is asserted to be the lawful use of his property. Philadelphia Co. v. Stimson, 507 598-599 DUB PROCESS OF LAW. Vol. V. ment recognizes any property right in a riparian owner to divert the waters of a stream of the state in which he resides into another state for use therein.^*^'^ An agreement, of no matter what private owners, could not sanction the diversion of an important stream outside the boundaries of the state in which it flows. The private right to appropriate is subject not only to the right of lower owners, but to tl>e initial limitation that it may not substantially diminish one of the great foun- dations of public welfare and health.^'^'^ ( ff j Flooding of Lands. — See note 61. 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340; Prosser v. Northern Pac. Railroad, 152 U. S. 59, 65, 38 L. Ed. 352, 14 S. Ct. 528. Where complainant a subsequent pur- chaser. — Where the complainant pur- chased the land subsequently to the mak- ing of improvement, the court is not con- cerned with the question whether there was any appropriation of land of the former owner by the United States, giv- ing rise to a cause of action to recover its value. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340; Gib- son v. United States, 166 U. S. 269, 41 L. Ed. 996, 17 S. Ct. 578; United States v. Lynah, 188 U. S. 445, 47 L. Ed. 539, 23 S. Ct. 349; Bedford v. United States, 192 U. S. 217, 48 L. Ed. 414, 24 S. Ct. 238; Mani- gault V. Springs, 199 U. S. 473, 50 L. Ed. 274, 26 S. Ct. 127; Chicago, etc., R. Co. v. Drainage Comm'rs, 200 U. S. 561, 584, 50 L. Ed. 596, 26 S. Ct. 341. 598-56. Ownership of bed of stream. — To streams, as highways of commerce, the power of congress extends, a power which "acknowledges no limitation other than are prescribed in the constitu- tion." Gibbons v. Ogden, 9 Wheat. 1, 196, 6 L. Ed. 23. The exercise of this power can not be fettered by any grant made by the state of the soil which formed the bed of the river, nor by any authority conferred by the state for the creation of obstructions to its navigation. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. An award of only nominal damages in proceedings to acquire by eminent do- main the fee to lands under the waters of a navigable stream does not take prop- erty for public use without compensa- tion, and hence without due process of law, where substantially all the land abut- ting upon the stream on either side had already been conveyed away by the owner of the bed, and the proceedings were had under a statute providing adequate ma- chinery for the ascertainment of compen- sation upon notice and hearing, and the record discloses no ruling of law prevent- ing just compensation to the owner for the property taken. Appleby v. Buffalo, 221 U. S. 524, 55 L. Ed. 838, 31 S. Ct. 699. 599-60a. Right of riparian owners to di- vert waters. — Hudson County Water Co. ^^ McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. Neither due process of law nor the equal protection of the laws is denied by Laws N. J. 1905, p. 461, c. 238, under which a riparian owner may be prevented from diverting the waters of a streaiu of the state into any other state, for use therein. Decree, McCarter v. Hudson County Water Co. (1906) 65 A. 489, 70 N. J. Eq. 695, affirmed. Hudson County Water Co. V. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. 599-60b. Same — Effect of agreement be- tween private owners. — Hudson County Water Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. 599-61. Flooding of lands — Destruc- tion of right of way, means of access, etc. — A private right of way is an easement and is land for which an action ex con- tractu against the United States will lie when such right of way is destroyed by the flooding of land actually taken by the government in the construction of a dam. The saine reasoning which allows a re- covery for the taking of land by perma- nent occupation allows it for a right of way taken in the same manner; and the value of the easement can not be deter- mined without reference to the dominant estate to which it is attached. United States V. Welch, 217 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527. The owner of a farm, a part of which is permanently flooded by a government dam, must be compensated, in addition to the value of the land taken, for the lessened value of the farm, caused by the consequent cutting off of a private way across the lands of others, which private way is the only practicable outlet from the farm to the county road. United States V. Welch, 217 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527. In such a case the doctrine which for- l)ids compensation for the taking or de- struction of a public way or public water- course has no application, since in such case the plaintiff has no private rights, and such rights as he has are subject to the superior public rights, and his dam- age though greater in degree than that of the rest of the public is the same in kind. United States r. Welch, 217 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527. Dam constructed by state institution. — The doctrine, that the flooding of land caused by the erection of a dam is a sub- stantial taking of the land for which com- 508 Vol. V. DUB PROCESS OF LAW. 601-609 (hh) Destruction of Access to Navigable Channel, Injury to Wharves, etc. — See note 67. (ii) Injury or Destruction of Bridges, Tunnels, etc. — See ante, "Requiring Public Service Companies to Bear Expense Incident to Abolition of Crossings, Removal or Construction of Tracks, Bridges, Pipes, Paving Right of Way, etc.," VI, D, 2, b, (4), (b), (ii) ; "Property Rights of Riparian Owners as Subservient to Right of Government to Improve Navigability of Stream," VI, D, 2, b, (4), (q), (cc). (5) Purpose for Which Property May Be Taken — (a) Public Purpose Only. —Taking for Private Use — Ulterior Public Advantage. — It is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use.--'' Use Public; but Inspired by Motive to Benefit a Particular Private Enterprise. — As to the condemnation of land for a spur track designed to reach a private industry, see post, "Railroads," VI, D, 2, b, (5), (11). (b) What Constitutes a Taking for a Public Purpose — (aa) Determination of Character of Use; Functions of Court and Legislature. — The nature of the use, whether public or private, for which property is taken in any given case is ulti- pensation must be made under the due process clause of the fourteenth amend- ment, applies to the case of an agricul- tural college owned and maintained by the state, and which, in an attempt to prevent the flooding of its own lands by the building of an embankment, has flooded the lands of an individual proprie- tor. And neither the college nor the in- dividual officers erecting and maintaining such embankment can escape liability from suit on the plea that the action is, in effect, against the state. Hopkins v. Clemson Agricultural College, 321 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. Rights of subsequent purchaser. — The lawful building of a dam by the United States in the interest of navigation, to in- crease the depths of water in a harbor in a navigable river, by which an island therein was submerged to a much greater extent than previously, and water over a part thereof rendered navigable at certain times gives a subsequent purchaser of such island no right to relief because of its construction, in an action by him against the secretary of war, to have harbor lines fixed in accordance with conditions ex- isting before his purchase set aside. Phil- adelphia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. 601-67. Destruction of access to navi- gable channel, injury to wharves, etc. — See, also, ante, "Property Rights of Ri- parian Owners as Subservient to Right of Government to Improve Navigability of Stream," VI, D, 2, b, (4), (q), (cc). The riparian proprietors have the right, among others, to build private wharves out so as to reach the navigable waters of the stream. Weems Steamboat Co. v. Peo- ple's Steamboat Co.. 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. If the wharf obstructs navigation or the private rights of others, or if it encroach upon any public landing, the wharf may be abated. (Va. Code 1887, § 998). Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. A private wharf on a navigable stream is thus held to be property which can not be destroyed or its value impaired, and it is property the exclusive use of which the owner can only be deprived in accordance with established law; and if necessary that it or any part of it to be taken for the public use by shippers or rival transpor- tation companies, due compensation must be made. The owner of a private wharf on a navigable stream does not, on that account only, hold it by a different title from the owner of any other property which he may use himself or permit others when he may select to use, while, at the same time, denying its use by anyone else. Weems Steamboat Co. v. People's Steam- boat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. 609-82a. Taking for private use — Ul- terior public advantage. — Xoble State Bank v. Haskell, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 186, followed in Shallen- berger v. First State Bank, 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189. See. also, Clark V. Nash, 198 U. S. 361, 49 L. Ed. 1085, 25 S. Ct. 076; Strickley v. Highland Boy, etc., Min. Co., 200 U. S. 527, 531, 50 L. Ed. 581, 26 S. Ct. 301; Oftield v. New York, etc., R. Co., 203 U. S. 372. 51 L. Ed. 231, 27 S. Ct. 72; Bacon v. Walker, 204 U. S. 311, 315, 51 L. Ed. 499, 27 S. Ct. 289. Creation of depositor's guaranty fund. — See post, "Banks and I^>anking, Crea- tion of Depositor's Guaranty Fund," VI D, 2, b, (5), (b), (zz^). 509 609-616 DUB PROCESS OF LAW. Vol. V. mately a judicial question. ^^b j^^^ when the use to which the property taken is applied is public, the propriety or expediency of the appropriation can not be called in question by any other authority.^-'^ (bb) As Affected by Local Conditions; Pozver of State to Declare Purpose Public. — See note 83. (11) Railroads. — See, generally, post. Eminent Domain. Condemnation for Spur Track to Reach Private Enterprise. — The con- demnation of land by a railroad company for a spur track will not be held to be for a private use, and therefore forbidden by Const. U. S. Amend. 14, where the state courts, in effect, have held that the use was public, on evidence tending to show that the spur track was designed, in part for the storage of cars while load- ing and unloading, and to relieve the congestion of business, although the motive which dictated its location over the land in question was to reach a private indus- try, which contributed to the cost.^^^ (zz^) Banks and Banking; Creation of Depositors Guaranty Fund. — The levy and collection, under a state statute, from every bank existing under the state laws, of an assessment based upon average daily deposits, for the purpose of creating a depositors' guaranty fund to secure the full repayment of deposits in case any such bank becomes insolvent, is for a public use, although, judged from the proximate effect of the taking, the use seems to be a private one^-^ 609-82b. Determination of character of use — Function of court and legislature. — Hairston v. Danville, etc.. R. Co., 208 U. S. 598, 606, 52 L. Ed. 637, 28 S. Ct. 331. 609-82C. Property or expediency of taking. — Cincinnati v. Louisville, etc., R. Co.. 223 U. S. 390, 404, 56 L. Ed. 481, 32 S. Ct. 267. 610-83. Character of use as affected by local conditions — Power of state to de- clare purpose public. — See, also, ante, "Mere Possibility of Evil or Hardship in Particular Instances Not Sufficient to In- validate Law," II, C, 6; "Construed in Light of Practical Affairs; Local Condi- tions, Habits, Customs and Traditions of Particular Communities," V, F. The federal supreme court, while en- forcing the fourteenth amendment, will keep in view the diversity of local con- ditions and regard with great respect the judgments of the state courts upon what should be deemed public uses in that state. Hairston v. Danville, etc., R. Co., 208 U. S. 598, 607, 52 L. Ed. 637, 28 S. Ct. 331. While it is true that cases may arise where the federal supreme court would decline to follow the state courts in their determination of the uses for which land could be taken by the right of eminent do- main, no case is recalled where that court has condemned as a violation of the four- teenth amendment a taking upheld by the state court as a taking for public uses in conformity with its laws. Hairston v. Dan- ville, etc., R. Co., 208 U. S. 598, 607. 52 L. Ed. 637, 28 S. Ct. 331. 613-95a. Condemnation of land for spur track to reach private enterprise. — Hair- ston V. Danville, etc., R. Co.. 208 U. S. 598, 52 L. Ed. 637, 28 S. Ct. 331. The uses for which the track was de- sired are not the less public because the motive which dictated its location over this particular land was to reach a private industry, or because the proprietors of that industry contributed in any way to the cost. Hairston v. Danville, etc., R. Co., 208 U. S. 598, 608, 52 L. Ed. 637, 28 S. Ct. 331. 616-12a. Banks and banking — Creation of depositor's guaranty fund. — Noble State Bank v. Haskell, 219 U. S. 575, 55 L. Ed. 341, 31 S. Ct. -899; S. C, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 186. "We fully understand the practical im- portance of the question and the very powerful argument that can be made against the wisdom of the legislation, but on that point \ve have nothing to say, as it is not our concern. Clark v. Nash, 198 U. S. 361, 49 L. Ed. 1085, 25 S. Ct. 676; Strickley v. Highland Boy, etc., Min. Co., 200 U. S. 527, 50 L. Ed. 581, 26 S. Ct. 301, etc., were cited to establish, not that prop- erty might be taken for a private use, but that among the public uses for which it might be taken were some which, if looked at onl)^ in their immediate aspect, accord- ing to the proximate effect of the taking, might seem to be private." Noble State Bank v. Haskell, 219 U. S. 575, 580, 55 L. Ed. 341, 31 S. Ct. 299. "Nevertheless, notwithstanding the log- ical form of the objection, there are more powerful considerations on the other side. In the first place it is established by a series of cases that an ulterior public ad- vantage may justify a comparatively in- significant taking of private property for what, in its immediate purpose, is a pri- vate use. Clark v. Nash, 198 U. S. 361, 49 L. Ed. 1085, 25 S. Ct. 676; Strickley v.. 510 Vol. V. DUE PROCESS OF LAW. 616-618 E. Due Process in Judicial and Administrative Proceedings — 1. Gen- eral Rules and Principles — a. Each State Prescribes Its Oicn Procedure. — See notes 14, 16. b. Requirement Satisfied by the Regular Administration of Lazv through the Courts of Justice — (1) Generally. — See note 17. Highland Boy, etc., Min. Co., 200 U. S. 527. 531, 50 L. Ed. 581, 26 S. Ct. 301; Of- field V. New York, etc.. R. Co., 203 U. S. 372, 51 L. Ed. 231, 27 S. Ct. 72; Bacon v. Walker, 204 U. S. 311, 315, 51 L. Ed. 499, 27 S. Ct. 289. And in the next, it would seem that there may be other cases be- side the every day one of taxation, in which the share of each party in the bene- fit of a scheme of mutual protection is sufficient compensation for the correla- tive burden that it is compelled to as- sume. See Ohio Oil Co. v. Indiana, 177 U. S. 190, 44 L. Ed. 729. At least, if we have a case within the reasonable exercise of the police power as above explained, no more need be said." Noble State Bank v. Haskell, 219 U. S. 104, 110, 55 L. Ed. 112, 31 S. Ct. 1S6. 616-14. Each state prescribes its own procedure. — The practice of the state courts in acting upon matters within their jurisdiction is left for the states and their courts administering their laws to deter- mine. Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 118, 53 L. Ed. 431, 29 S. Ct. 227; Twining v. New Jersey, 211 U. S. 78, 111, 53 L. Ed. 97, 29 S. Ct. 14; Stand- ard Oil Co. V. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. For example, if in the appointment of a receiver the court saw fit to act upon the testimony already heard and the con- viction already had for the violation of the anti-trust laws of the state, there is nothing in the federal constitution which prevents it so doing. Nor does the time or manner in which the state court saw- fit to approve the receiver's bond present any question under the fourteenth amend- ment. Waters-Pierce Oil Co. v. Texas, No. 2, 212 U. S. 112, 118, 53 L. Ed. 431, 29 S. Ct. 227. See the cases cited in Waters- Pierce Oil Co. V. Texas. No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. 617-16. As to forms of procedure — Fundamental requirements — Notice and opportunity for hearing. — The fourteenth amendment in no way undertakes to con- trol the power of a state to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice and ac- cords fair opportunity to be heard before the issues are decided. Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, the supreme court of the United States has up to this time sustained all state laws, statutory or judicially declared, reg- ulating procedure, evidence and methods of trial, and held them to be consistent with due process of law. Twining v. New Jersey, 211 U. S. 78, 111, 53 L. Ed. 97, 29 S. Ct. 14; Louisville, etc., R. Co. v. Schmidt, 177 U. S. 230, 236, 44 L. Ed. 747, 20 S. Ct. 622; Jacob v. Roberts, 223 U. S. 261. 56 L. Ed. 429, 32 S. Ct. 303; Simon v. Craft, 182 U. S. 427, 45 L. Ed. 1165, 21 S. Ct. 836; Standard Oil Co. v. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406; American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. "The limit of the full control which the state has in the proceedings of its courts, both in civil and criminal cases, is subject only to the qualifications that such pro- cedure must not work a denial of funda- mental rights or conflict with specific and applicable provisions of the federal con- stitution." Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86. 107, 53 L. Ed. 417, 29 S. Ct. 220; West v. Louisiana. 194 U. S. 258, 263, 48 L. Ed. 965. 24 S. Ct. 650, and see Davis V. Texas, 139 U. S. 651, 35 L. Ed. 300; Brown v. New Jersey, 175 U. S. 172, 44 L. Ed. 119, 20 L. Ed. 77; Allen v. Georgia, 166 U. S. 138, 140, 41 L. Ed. 949, 17 S. Ct. 525; In re Converse. 137 U. S. 624, 632, 34 L. Ed. 796, and Twining v. New Terse}'. 211 U. S. 78. 53 L. Ed. 97. 29 S. Ct. 14. 618-17. Requirement satisfied by regu- lar administration of law through the courts of justice. — The cases proceed upon the theory that, given a court or justice which has jurisdiction and acts, not arbi- traril}^ but in conformity with a general law, upon evidence, and after inquiry made with notice to the parties aflfected and opportunity to be heard, then all the re- quirements of due process, so far as it re- lates to procedure in court and methods of trial and character and effect of evi- dence, are complied with. Twining v. New Jerse3^ 211 U. S. 78, 111. 53 L. Ed. 97, 29 S. Ct. 14. In Allen v. Georgia, 166 U. S. 138, 140, 41 L. Ed. 949, 17 S. Ct. 525, it is said: "Without attempting to define exactly in what due process of law consists, it is sufficient to say that, if the supreme court of a state has acted in consonance with the constitutional laws of a state and its own procedure, it could be in every exceptional circumstances that this court would feel justified in saying that there had been a failure of due legal process. We might ourselves have pursued a different course in this case, but that is not the test. The 511 619-621 DUE PROCESS OF LAW. Vol. V. (2) Qualification of Rule; Regard to Be Had to Substance and Not to Form.. — See note 19. (3) Same; Mere Error Not a Denial of Due Process. — See note 24. plaintifif in error must have been deprived of one of those fundamental rights, the observance of which is indispensable to the liberty of the citizen, to justify our interference." Jordan v. Commonwrealth, 225 U. S. 167, 56 L. Ed. 1038, 33 S. Ct. 651. If the state has provided adequate ma- chinery for the ascertainment of compen- sation, upon notice and hearing, and the record discloses no ruling of law which prevented compensation to the owner for the property taken, there is no lack of due process. Appleby v. Buffalo, 221 U. S. 524, 55 L. Ed. 838, 31 S. Ct. 699. 619-19. Qualification of rule — Regard to be had to substance and not to form. — An adequate opportunity to defend will not sustain, as affording due process of law, an order of a state railroad commis- sion requiring trackage connections be- tween competing railway companies for the interchange of business, if the order was arbitrary or unreasonable, and not justified by any public necessity. Oregon R., etc., Co. V. Fairchild, 224 U. S. 510, 56 L. Ed. 863, 32 S. Ct. 535. The guaranty of the fourteenth amend- ment to constitution extends to the pro- tection of the fundamental rights, to the substance of the order as well as to the notice and hearing which precede it. "The mere form of the proceeding insti- tuted against the owner, even if he be admitted to defend, can not convert the process used into due process of law, if the necessary result be to deprive him of his property without compensation." Oregon R., etc., Co. v. Fairchild, 22-t U. S. 510, 56 L. Ed. 863, 32 S. Ct. 535; Chi- cago, etc., R. Co. V. Chicago, 166 U. S. 226, 236. 41 L. Ed. 979. 17 S. Ct. 581; Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403, 416, 41 L. Ed. 489, 17 S. Ct. 130; Appleby v. Buffalo, 221 U. S. 524, 531, 55 L. Ed. 838, 31 S. Ct. 699. 621-24. Mere error not a denial of due process. — An erroneous decision of a state court does not deprive the unsuccessful party of his property without due proc- ess of law, contrary to U. S. Const., 14th A.mend., where the parties have been fully heard in the regular course of judicial proceedings. Bonner v. Gorman, 213 U. S. 86, 53 L. Ed. 709, 29 S. Ct. 483. "In summing up the matter, the court said: 'We are permitted only to inquire whether the trial court prescribed any rule of law for the guidance of the jury that was in absolute disregard of the com- pany's right to just compensation. We say "in absolute disregard of the com- pany's right to just compensation,'' be- cause we do not wish to be understood as holding that every order or ruling of the state court in a case like this may be re- viewed here, notwithstanding our juris- diction, for some purposes, is beyond question. Many matters may occur in the progress of such cases that do not neces- sarily involve, in any substantial sense, the federal right alleged to have been denied; and in respect of such matters, that which is done or omitted to be done by the state court may constitute only er- ror in the administration of the law under which the proceedings were instituted.' " Appleby v. Buffalo, 221 U. S. 524, 531, 55 L. Ed. 838, 31 S. Ct. 699. "The only assignment of error which is here open for review does not show that the court below, by any ruling of law, de- prived the owner of the right of compen- sation for his property. The alleged de- nial of federal right rests upon the asser- tion that the damages were nominal, while the property taken was of greater value. But, as this court has heretofore held, if the state has provided adequate machin- ery for the ascertainment of compensa- tion, upon notice and hearing, and the record discloses no ruling of law which prevented compensation to the owner for the property taken, there is no lack of due process." Appleby v. Buffalo, 221 U. S. 524, 532, 55 L. Ed. 838, 31 S. Ct 699. Due process of law does not assure to a taxpayer the interpretation of state legislation by the executive officers of a ' state as against its interpretation by the courts of the state, or relief from the con- sequences of a misinterpretation by either. Judgment (1906) 94 S. W. 654, 29 Ky. Law Rep. 705, affirmed. Thompson v. Com- monwealth. 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533. In other words, a person relying upon the interpretation given an act l3y the ex- ecutive officers of the state must take his chances upon their decision being over- ruled by a different construction placed upon the act by the judicial officers of the state; and the subsequent enforcement of the act against him according to the con- struction placed upon it by the judicial of- ficers of the state is not a denial of due process of law. Thompson v. Common- wealth, 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533, affirmed 29 Ky. Law Rep. 705, 94 S. W. 654. Thus, where the state law required the 'varehouseman to .pay the taxes upon liq- uors stored in a bonded warehouse, and gave him a lien upon the liquors for taxes and interest paid, and the warehouseman, relying upon the construction placed upon 513 Vol. V. DUB PROCESS OF LAW. 625-631 c. Established Methods A'ot Oz'ertunied ; Process Sufficient if Sanctioned by Coinnwn-La'iv Usage. — See note 31. d. States Not Restricted to C omiiion-La'iv Methods; Due Process Not De- termined by Matter of Age. — See note 33. e. But State Can Not Make Anything Due Process It May Choose to Declare Such. — See note 38. e^. Due Process Dependent upon Circumstances. — It is familiar that what is due process of law depends on circumstances. It varies with the subject matter and the necessities of the situation. Thus, summary proceedings suffice for taxes, and executive decisions for the exclusion of aliens from the country \-^^^ while as to those in the military or naval service of the United States the military law is due process.'^ ■'^" f. Limitations upon Legislative Pouers i^'ith Respect to Remedies and Forms of Procedure — (1 ) Generally; Requirement Satisfied by Regular Course of Pro- ceedings before a Competent Tribunal. — See ante, "Requirement Satisfied by the Regular Administration of Law through the Courts of Justice/' VI, E, 1, b, et seq. ; "Due Process Dependent upon Circumstances," VI, E, 1, t^A. (2) Judicial Proceeding Not Alzcays Required. — See notes 45, 46, 47, 48. the act by the executive and administra- tive officio of the state, paid the taxes without paying any interest, it was held that the state was not estopped from col- lecting the interest required by a proper construction of the statute, notwithstand- ing the liquors had, since the previous payment, been withdrawn from the ware- house, and that, in so doing, it did not deprive the warehouseman of his prop- erty without due process of law in vio- lation of the fourteenth amendment. Thompson f. Commonwealth, 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533, affirmed 29 Ky. Law Rep. 705, 94 S. W. 654. 625-31. Established methods not over- turned — Sufficient if sanctioned by com- mon-law usage. — What is due process of law may be ascertained by an examination of those settled usages and modes of pro- ceedings existing in the common and statute law of England before the emi- gration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. Twining Z'. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. 626-33. State not restricted to common- law usage. — A procedure settled in Eng- lish lav/ at the time of the emigration, and brought to this country, and practiced by our ancestors, is not an essential element of due process of law. If it were, the pro- cedure of the first half of the seventeenth century would be fastened upon the Amer- ican jurisprudence like a straight jacket, only to be unloosed by constitutional amendment. Twining v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. 627-38. But state can not make due process anything it 'may choose. — Con- sistently with the requirements of due process, no change in ancient procedure can be made which disregards those fun- damental principles, to be ascertained 12 U S Enc— 33 513 from time to time by judicial action, which have relation to process of law, and pro- tect the citizen in his private right, and guard him against the arbitrary action of government. Twining i'. New Jersej\ 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. 627-38a. Due process dependent upon circumstances. — See, also, post, "Judicial Proceeding Not Always Required," VI, E, 1, f. Moyer v. Peabody, 212 U. S. 78, 84, 53 L. Ed. 410, 29 S. Ct. 235, citing Mur- ray V. Hoboken, etc.. Imp. Co., 18 How. 272, 15 L. Ed. 372; United States v. Ju Toy, 198 U. S. 253, 263, 49 L. Ed. 1040. 627-38b. Same — As to those in the mili- tary or naval service. — Reaves f. Ains- worth, 219 U. S. 296, 55 L. Ed. 255, 31 S. Ct. 230. See, also, ante, "Persons in Naval or Military Service," III, E. 629-45. Judicial proceedings not always required. — See ante, "Due Process De- pendent upon Circumstances," VI, E, 1, e. 630-46. Administration of executive de- partments is due process. — It is within the competency of congress, when legislating as to matters exclusively within its con- trol, to impose appropriate obligations, and sanction their enforcement by rea- sonable money penalties, giving to execu- tive officers the power to enforce such penalties without the necessity of invok- ing the judicial power. Oceanic Steam Nav. Co. r. Stranaham, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671. 631-47. Same — State boards and officers. — Where the taking is under an adminis- trative regulation, the defendant must not be denied the right to show that, as a matter of law, the order was so arbitrary, unjust, or unreasonable as to amount to a deprivation of property in violation of the fourteenth amendment. Ore.gon R., etc., Co. V. Fairchild, 224 U. S. 510, 56 L. Ed. 863, 32 S. Ct. 535, and cases cited. 631-48. Illustrations — Taxation — Exclu- sion of aliens. — Summary proceedings 636-637 DUB PROCESS OF LAW. Vol. V. (3) Legislative Judgments and Decrees. — The state can not make a legislative act res judicata by providing for notice and hearing of interested persons before the enactment of the law. Nor can a citizen be deprived of the right to resort to the courts for the purpose of redressing the prosecution of an act upon the ground that he was negligent or guilty of laches in not appearing before the leg- islative body and opposing the enactment of the act of which he complains. On the other hand it may be said that a citizen has the right to assume that the legis- lature will proceed with due respect to constitutional restrictions, and may safely rest upon the assumption that he is not bound to be continually on the alert against the enactment of unconstitutional legislation, and that he will have the right, if such legislation should be enacted, to resort to the courts for protection against the same.^^^ 2. As Guaranteeing Equal and Impartial Justice to All Persons — b. Re- quires an Impartial Tribunal. — See note 59. suffice for taxes, and executive decisions for exclusion from the country. Mover V. Peabody, 212 U. S. 78, 84, 53 L. Ed. 410, 29 S. Ct. 235; Murray v. Hoboken, etc.. Imp. Co., 18 How. 272, 15 L. Ed. 372; United States v. Ju Toy. 198 U. S. 253, 263. 49 L. Ed. 1040. Same — As to persons in military or naval service. — To those in the military or naval service of the United States, the military law is due process. Reaves ■'<.'. Ainsworth, 219 U. S. 296, 55 L. Ed. 255, 31 S. Ct. 230. Same — Powers of secretary of war with respect to bridges over interstate streams. —The secretary of war is not invested with arbitrary power in the premises by the provision of the River and Harbor Act of March 3, 1899, § 18, empowering him, when satisfied that a bridge over an interstate waterway is an unreasonable obstruction to navigation, to require such changes or alterations as will render navi- gation reasonably free, easy, and unob- structed, since he is bound, before making any decision or taking final action, to no- tify the parties interested of any proposed investigation by him, to give them an opportunity to be heard, and to allow reasonable time to make such alterations as he finds to be necessary to free naviga- tion. Monongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. Same — Executive process in time of war, insurrection, great public danger, etc. — When it conies to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessi- ties of the moment. Public danger war- rants the substitution of executive process for judicial process. Moyer v. Peabody, 212 U. S. 78, 53 L. Ed. 410, 29 S. Ct. 235. See Keely v. Sanders, 99 U. S. 441. 446, 25 L. Ed. 327. The governor's declaration that a state of insurrection existed is conclusive of that fact. Moyer v. Peabody, 212 U. S. 78, 83, 53 L. Ed. 410, 29 S. Ct, 235. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the in- surrection of¥, the governor is the final judge and can not be subjected to an ac- tion after he is out of office on the ground that he had not reasonable ground for his belief. Moyer v. Peabody, 212 U. S. 78, 85, 53 L. Ed. 410, 29 S. Ct. 235. This is true not only with regard to killing men in the actual clash of arms, but the same is true of temporary de- tention to prevent apprehended harm. Moyer v. Peabody, 212 U. S. 78, 85, 53 L. Ed. 410, 29 S. Ct. 235. Imprisonment for two and one-half months under the order of the governor of a state, without sufficient reason, but in good faith in the exercise of his power under the state constitution and laws to call upon the military arm of the state government to suppress an insurrection, does not deprive the person imprisoned of his liberty without due process of law. Moyer %•. Peabody, 212 U. S. 78, 53 L. Ed. 410, 29 S. Ct. 235. 636-55a. Legislative judgment and de- crees — Notice and hearing before legis- lature previous to enactment of statute. — Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. For example, the making or prescribing of rates is a legislative function whether done by the legislature or a state railroad corporation commission; and the decision or order of such body in prescribing the rates can not be made res judicata, and a citizen deprived of the right to resort to the courts to protect his constitutional rights, by reason of the fact that he was given notice and opportunity to be heard, before the commission or legislative body, before the proposed rule or order pre- scribing the rates was promulgated. Such a decision is not judicial nor rendered in a judicial proceeding, since litigation can not arise until legislation has been en- acted. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. 637-59. Powers of municipal corpora- 514 . Vol. V. DUB PROCESS OP LAW. 637-641 c. Forbids Arbitrary Laws and Proceedings. — See notes 60, 65. e. Preferring Resident Creditors. — See note 70. 3. Notice, Hearing, Jurisdiction as Essential to Due Process of Law — a. General Rule as to Jurisdiction, Notice and Opportunitx for Hearing. — See notes 72, 74. tions to levy assessments, fix rates, etc. — The appellant further insists that the city council in prescribing rates is not an im- partial tribunal, because, in effect, it is a judge in its own case. It is too late, how- ever, after the many decisions of the fed- eral supreme court, which have either de- cided or recognized that the governing body of a city may be authorized to ex- ercise the rate-making function, to ask for the reconsideration of that proposition. Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 279, 53 L. Ed. 176, 29 S. Ct. 50. And it is not material that by the charter of the city twenty-five per cent of the electors may recall a member of the council and require him again to stand for election, for he, nevertheless, takes part in the rate-making function under his, personal responsibility as an officer, and it can not be presumed, as matter of laAv, that the deeper sense of dependence upon the will of the people, which this feature of his tenure of office brings to him, will distort his judgment and sense of justice. Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 279, 53 L. Ed. 176, 29 S. Ct. 50. 637-60. Forbids arbitrary laws and pro- ceedings. — See, also, ante, "Qualification of Rule; Regard to Be Had to Substance and Not to Form," VI, E, 1, b, (2). Consistently with the requirements of due process, no change in ancient pro- cedure can be made which disregards those fundamental principles, to be as- certained from time to time by judicial action, which have relation to process of law, and protect the citizen in his priv- ate right, and guard him against the arbi- trary action of government. Twining z: New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14. Where the taking is under an adminis- trative regulation, the defendant must not be denied the right to show that, as mat- ter of law, the order was so arbitrary, unjust, or unreasonable as to amount to a deprivation of property in violation of the fourteenth amendment. Oregon R., etc., Co. V. Fairchild, 224 U. S. 510, 56 L. Ed. 863, 32 S. Ct. 535: Chicago, etc., R. Co. V. Minnesota, 134 U. S. 418, 33 L. Ed. 970, 10 S. Ct. 462, 702; Smyth v. Ames, 169 U. S. 466, 43 L. Ed. 819, 18 S. Ct. 418; Chicago, etc., R. Co. z'. Tompkins, 176 U. S. 167, 173, 44 L. Ed. 417, 20 S. Ct. 336. Same — Powers of secretary of war with respect to bridges over navigable streams. —The Act of March 3. 1899, § 18, did not invest the secretary of war with arbitrary power in the premises, since, in reference to any bridge alleged to constitute an un- reasonable obstruction to navigation, he v/as bound, before making any decision or taking final action, to notify the par- ties interested of any proposed investi- gation by him, give them an opportunity to be heard, and allow reasonable time to make such alterations as he found to be necessary to free navigation. Monon- gahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. Fine and ouster of foreign corporation in original proceeding in state court of last resort as an arbitrary proceeding. — See post, ''As to Form of Judgment or Decree," VI, E, 15. 639-65. Courts to interfere only upon abuse of power — Individual hardship not sufficient. — See ante, "Mere Possibility of Evil or Hardship in Particular Instances Not Sufficient to Invalidate Law," II, C, 6. 340-70. Preferring resident creditors. — A German corporation is not deprived of its property without due process of law, contrary to Const. U. S. Amend. 14, by the refusal of a state court, on grounds of public policy, to apply the doctrine of comity so as to subject by attachment, to the payment of an indebtedness due the corporation from a German subject, a fund within the state to which one of its own citizens asserts a claim, where the effect of judgment in favor of the cor- poration would be to remove the fund to a foreign country, there to be administered in favor of the foreign creditors. Judg- ment, The Disconto Gesellschaft t'. Terlin- den (1906), 106 N. W. 821, 127 Wis. 651, 115 Am. St. Rep. 1063, affirmed. Disconto Gesellschaft v. Umbreit. 208 U. S. 570, 52 L. Ed. 625, 28 S. Ct. 337. In determining that the policy of Wis- consin would not permit the property to be thus appropriated to the benefit of alien creditors as against the demands of the citizens of the state, the supreme court of Wisconsin has done no more than has been frequently done by na- tions and states in refusing to exercise the doctrine of comity in such wise as to impair the right of local creditors to sub- ject local property to their just claims. We fail to perceive how this application of a well known rule can be said to d*"- prive the plaintiff in error of its property without due process of law. Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 580, 52 L. Ed. 625. 28 S. Ct. 337. 641-72. Notice, hearing and jurisdiction — General rule. — See, also, ante, "Legis- 5i; 641-644 DUE PROCESS OF LAW. \o\. \. b. Qualification of Rule; Notice and Hearing Xot Required unless Necessary for the Protection of the Parties — (3) As to Statute or Ordinance Fixing Rates for Use of Public Utilities. — See note 78a. lative Judgments and Decrees," VI, E, 1, f, (3). The essential element of due process of law is an opportunity to be heard, and a necessary condition of such opportunity is notice. Jacob f. Roberts. 223 U. S. 261, 56 L. Ed. 429, 32 S. Ct. 303; Simon z'. Craft. 182 U. S. 427, 45 L. Ed. 1165, 21 S. Ct. 836; Jordan z: Massachusetts. 225 U. S. 167, 56 L. Ed. 1038, 32 S. Ct. 651; Twining z'. New Jersey, 211 U. S. 78, 111, 53 L. Ed. 97, 29 S. Ct. 14; Standard Oil Co. r. Missouri, 224 U. S. 270, 56 L. Ed. 760. 32 S. Ct. 406; American Land Co. z: Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. Due process requires that the cotirt which assumes to determine the rights of parties shall have jurisdiction and that there shall be reasonaI)le notice and a fair opportunity for hearing given the parties. Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law estab- lished by civilized countries, this court has, up to this time, sustained all state laws, statutory or judicially declared, regtilating procedure, evidence, and methods of trials, and held them to be consistent with due process of law. Twin- ing v. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14; American Land Co. z: Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200; Jordan v. Massachusetts, 225 U. S. 167, 56 L. Ed. 1038, 32 S. Ct. 651; Standard Oil Co. z: Missouri, 224 U. S. 270, 56 L. Ed. 760. 32 S. Ct. 406. The right to be heard before property is taken or rights or privileges withdrawn, which have been previously legally awarded, is of the essence of due process of law. It is unnecessary to recite the decisions in which this principle has been repeatedly recognized. It is enough to say that its binding obligation has never been questioned in the federal supreme cotirt. Garfield z: Goldsby, 211 U. S. 249. 262, 53 L. Ed. 168. 29 S. Ct. 62, citing Garfield v. Allison. 211 U. S. 264, 53 L. Ed. 176. 29 S. Ct. 67. Right acquired by judicial or adminis- trative proceeding. — In the extended dis- cussion which has been had tipon the meaning and extent of. constitutional pro- tection against action without due process of law, it has always been recognized that one who has acquired rights by an ad- ministrative or judicial proceeding can not be deprived of them without notice and an opportunity to be heard. Garfield z'. Goldsbv, 211 U. S. 249. 262, 53 L. Ed. 168, 29 S. Ct. 62, citing Garfield z'. Allison, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. 641-74. Judgment not due process if rendered without jurisdiction. — Due proc- ess requires that the court which assumes to determine the rights of parties shall have jurisdiction (Pennoyer z\ Nefif, 95 U. S. 714, 733. 24 L. Ed. 565; Scott v. Mc- Neal, 154 U. S. 34, 38 L. Ed. 896, 14 S. Ct. 1108; Old Wayne Mut. Life Ass'n v. Mc- Donough, 204 U. S. 8. 51 L. Ed. 345, 27 S. Ct. 236), and that there shall be notice and opportunity for hearing given parties. Twining z\ New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. Ct. 14, citing Hovey v. Elliott, 167 U. S. 409, 42 L. Ed. 215. 17 S. Ct. 841; Roller z: Holly, 176 U. S. 398, 44 L. Ed. 520, 20 S. Ct. 410. And see, also, Londoner z: Denver, 210 U. S. 373, 52 L. Ed. 1103. 28 S. Ct. 708. Requires jurisdiction of subject matter as well as parties. — It is essential to the validit}^ of any judgment that the court rendering it should have had jurisdiction not only of the parties, but of the sub- ject matt'er. Standard Oil Co. v. Mis- souri, 224 U. S. 270. 56 L. Ed. 760. 32 S. Ct. 406. Same — Construction of state law. — But where the contention is that under the provisions of the state constitution and laws the court had no jurisdiction of the cause, that question is conclusively set- tled by the decision of the state court of last resort construing its own constitution and laws. Standard Oil Co. v. Missouri, 224 U. S. 270. 56 L. Ed. 760. 32 S. Ct. 406. See, also, ante, "Decision of State Court Conclusive as to Whether Act or Proceed- ing Was in Conformitv to State Law and Practice." VI. B, 4. 644-78a. Owners of public utilities en- titled to notice of proceeding to fix lates. — See. also, ante. "Legislative Judgments and Decrees," VI. E, 1, f, (3). And see post, POLICE POWER. Rate regulation is purely a legislative function and, even where exercised by a subordinate body upon which it is con- ferred, the notice and hearing essential in judicial proceedings and, for peculiar reasons, in some forms of taxation (Londoner z: Denver, 210 U. S. 373, 52 L. Ed. 1103. 28 S. Ct. 708) would not seem to be indispensable. Home Tel. Co. z'. Los Angeles, 211 U. S. 265, 278, 53 L. Ed. 176, 29 S. Ct. 50. Conceding, what is not decided, that the company affected is entitled to be heard in the proceeding to prescribe the rates. Municipal ordinances fixing telephone rates do not denj- the due process of law guaranteed by Const. U. S. Amend. 14, because the section of the municipal charter under the authority of which the}' 516 \'ol. \' DUE PROCESS OF LAW 644 (5) Necessity for Xoticc in Tax Proceedings.- — See post, Taxation. d. The Right to Xoticc Implies the Right to Appear and Be Heard. — See note 81. were enacted does not expressly provide for notice and hearing, where both notice and an opportunity to be heard were in fact accorded by ordinances providing that the rates be fixed at a meeting of the city council held in Februarj- in each year, and requiring the telephone company to furnish the city council annualh" in that month a statement of its receipts, expend- itures, and property employed in the business. Decree (C. C. 1907), 155 Fed. 554, affirmed. Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. Where an ordinance of the city provided that the rates should Ije fixed at a regular and special meeting of the city council held during the month of February of each year, and another ordinance, re- quired the telephone company to render annually, in the month of February, to the city council a statement of its re- ceipts, expenditures and property em- ployed in the business, facts which would be material on the question of fixing rea- sonable rates, sufficient notice and hear- ing were afforded to the company, if it had chosen to avail itself of them, sup- posing, what is not decided, that notice and opportunity for hearing were essen- tial to due process of law. Home Tel , etc., Co. v. Los Angeles, 211 U. S. 235, 278, 53 L. Ed. 176. 29 S. Ct. 50. "H notice and opportunity to be heard upon the proceeding to fix rates were in- dispensable, which we do not decide, it is enough that, although the charter be silent, such notice and hearing were af- forded by ordinance, as in this case.'" Home Tel., etc.. Co. z'. Los Angeles, 211 U. S. 265, 279, 53 L. Ed. 176, 29 S. Ct. 50. So. it was held in Paulsen t'. Portland. 149 U. S. 30. 38, 37 L. Ed. 637. Legislature can not preclude a resort to the courts by providing for notice and hearing before enactment of statute or promulgation of order. — The state can not make a legislative act res judicata by pro- viding for notice and hearing of interested persons before the enactment of the law. Xor can a citizen be deprived of the right to resort to the courts for the purpose of redressing the prosecution of an act upon the ground that he was negligent or guilty of laches in not appearing before the legislative body and opposing the en- actinent of the act of which he com- plains. On the other hand it may be said that a citizen has the right to assume that the legislature will proceed with due re- spect to constitutional restrictions, and Tiiay safely rest upon the assumption that he is not bound to be continually on the alert against' the enactment of unconsti- tutional legislation, and that he will have the right, if such legislation should be enacted, to resort to the courts for pro- tection against the same. Prentis v. At- lantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. P'or example the making or prescribing of rates is a legislative function whether done by legislature or a state railroad cor- poration commission; and the decision or order of such body in prescribing the rates can not be made res judicata, and a citizen deprived of the right to resort to the courts to protect his constitutional rights by reason of the fact that he was given notice and opportunity to be heard, before the commission or legislative body, l)efore the proposed rule or order pre- scribing the rates was promulgated. Such a decision is not jtidicial nor rendered in a judicial proceeding, since litigation can not arise until legislation has been en- acted. Prentis z'. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. 644-81. Right to notice implies the right to appear and be heard — As requir- ing the hearing and judgment to corre- spond with the notice and with the plead- ings. — See post, "As to Form of Judgment or Decree," VI. E. 15. Persons in contempt. — Striking from llie files the answer of a foreign corpora- lion sued for violating the Arkansas Anti- Trust Act (Act Ark. Jan. 23, 1905 [Acts 1905, p. 9]), and rendering judgment by default against it, conformably to § 9 of that act, authorizing such action when defendant disolieys an order made in pur- suance of § 8, to secure the attendance as witnesses before a commissioti of certain designated officers, agents, directors, and employees, and the production of books, papers and documents in their possession or control, does not deny due process of law. Hammond Packing Co. z>. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. The power to strike an answer out and enter a default conferred by § 9 of the Arkansas Anti-Trust Act 1905, upon fail- ure of the corporation to produce its books and papers as required bj' the act in an action against it to recover penal- ties prescribed by the act as referable to the undoubted right of the law-making authority to create a presurnption in re- spect to the bad faith and falsity and want of foundation as an asserted de- fense against a defendant who suppresses or fails to produce any evidence when legally called upon to give or produce evidence, and it is not opposed to the due process clause of the fourteenth amendment, but is authorized under a 5i; 647-657 DUB PROCESS OF LAW. Vol. V. e. Persons Untitled to Notice and Hearing. — See, generally, post, "Notice, Hearing and Jurisdiction in Particular Proceedings," VI, E, 3, 1 ; "Due Process in Particular Proceedings," VI, E, 19, et seq. See, also, the specific titles in this volume. As to the right of heirs to notice and hearing upon foreclosure of mortgage against the real estate of the ancestor, see ante, "Right to Devise, Bequeath, or Inherit Property; Inheritance Taxes," VI, D, 1, j. i. Sufficiency of Notice and Hearing — (1) Generally as to Notice. — See, gener- ally, post, Summons and Process. As to notice and hearing before a legislative body before the enactment of a statute, or before an administrative body or com- mission before the promulgation of an order, see ante, "Legislative Judgments and Decrees," VI, E, 1, f, (3). As to notice and hearing in particular proceed- ings, see the appropriate specific titles in this supplement. See, also, post, "No- tice, Hearing and Jurisdiction in Particular Proceedings," VI, E, 3, 1 ; "Due Proc- ess in Particular Proceedings," VI, E, 19. (2) Determined by Substance, Not by Form. — See note 92. (3) May Be Actual or Constructive. — See note 93. 1. Notice, Hearing and Jurisdiction in Particular Proceedings. — Cases illus- trating the sufficiency of the notice and hearing in particular cases will be found in the notes. -^'^ visitorial power of the state as a right to exercise over corporations subject to its control. Hammond Packing Co. v. Ar- kansas, 212 U. S. 322, 353, 53 L. Ed. 530, 29 S. Ct. 370, distinguishing, Hovey v. Elliott, 167 U. S. 409, 42 L. Ed. 215, 17 S. Ct. 841, in which it was held that the action of the court in striking an answer from the files and condemning, as by de- fault, a punishment for a contempt was a denial of due process of law, and repug- nant to the fourteenth amendment. Objection of self-incrimination not available to corporation in contempt. — See ante, CONSTITUTIONAL LAW, p. 264. 647-92. Sufficiency of notice and hearing determined by substance and not by form. — The fourteenth amendment guarantees that the defendant shall be given that character of notice and opportunity to be heard which is essential to due proc- ess of law. When that has been done, the requirements of the constitution are met, and it is not for this court to determine whether there had been an erroneous con- struction of statute or common law. Standard Oil Co. v. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406; Iowa Cent. R. Co. v. Iowa, 160 U. S. 389, 40 L. Ed. 467, 16 S. Ct. 344; West v. Louisiana, 194 U. S. 258, 261, 48 L. Ed. 965, 24 S. Ct. 650. See, also, ante, "Qualification of Rule; Regard to Be Had to Substance and Not to Form," VI, E, 1, b, (2). 648-93. Notice may be actual or con- structive. — Personal notice is not in all cases necessary. There may be, and necessarily must be, some form of con- structive service. Jacob v. Roberts, 223 U. S. 261, 56 L. Ed. 429, 32 S. Ct. 303; Ballard v. Hunter, 204 U. S. 241, 51 L. Ed. 461, 27 S. Ct. 261. 657-21a. Notice, hearing and jurisdic- tion in particular proceedings. — See, gen- erally, the appropriate titles in this sup- plement. See, also, post, "Due Process in Particular Proceedings," VI, E, 19. Quieting title to real estate. — As it is indisputable that the general welfare of society is involved in the security of the titles to real estate and in the public registry of such titles, it is obvious that the power to legislate as to such sul)- jects inheres in the very nature of gov- ernment. This being true, it follows that government possesses the power to au- thorize proceedings personal and in rem in order to remedy the confusion and un- certainty as to registered titles arising from the loss or destruction of public records by flood, fire, or earthquake. American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. - The principle applies with equal force in the case of imknown claimants. Un- disclosed and unknown claimants are. to say the least, as dangerous to the stability of titles as other classes. American Land Co. V. Zeiss, 219 U. S. 47, 55 L Ed. 82. 31 S. Ct. 200. The safeguards afforded unknown claimants or claims by the provisions of St. Cal. 1906, c. 59, for the establishment and quieting of title to real property in case of the loss or destruction of public records, by an action in rem, to be brought by a person in the actual and peaceable possession of the property against "all persons claiming any interest in or lien upon the real property herein described, or any part thereof," satisfy the due process of law clause of the fed- eral constitution, where such statute, as construed by the state courts, requires the plaintiff to designate and serve all known 518 Vol. V. DUB PROCESS OF LAW. 657 6. As TO THE Forum in Which Trial Is Had; Change of Venue; etc. — See ante, Constitutional Law, p. 264; post, Removal of Causes; Venue. 11. Matters Admissible in Defense. — See ante, "As to What Shall Consti- tute an Actionable Wrong; Damages Recoverable," VI, A, 8, f. See, also, ante. Constitutional Law, p. 264. As to powers of territorial legislatures, see ante, Constitutional Law, p. 264. As to statutes abolishing the doctrines of fellow claimants, and those whom, with reason- able diligence, he can ascertain to be such, and calls for constructive service by publication against nonresidents and imknown owners, for the conspicuous posting upon the property of a copy of the summons, and the recording of a lis pendens, especially since under Code Civ. Proc. Cal., § 473, any person interested and having no actual notice of the decree may come in at any time within a year after its rendition, and, upon showing cause, may have the decree vacated as to him, and be allowed to answer to the merits. American Land Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. An order for the substituted service of summons in a suit to quiet title to certain lots in San Diego, California, made con- formably to Cal. Code Civ. Proc, § 412, is supported by a sufficient showing of diligent inquiry to satisfy the due process of law clause of U. S. Const., fourteenth amendment, where it was made upon an affidavit which, after reciting the pro- ceedings, including the issue of the sum- mons and the certificate of the sheriff that "after diligent search and inquiry" he was unable to find the '"defendants or either or any of them in this, San Diego County," further states that unsuccessful inquiries as to the whereabouts of defendants were made of their former neighbors and other residents of San Diego, and of certain county and state officers, and that plain- tiff himself made diligent inquiry, and had no knowledge of their residence or post- office address, or where they could be found. Jacob v. Roberts, 223 U. S. 261, 56 L. Ed. 429, 32 S. Ct. 303. Same — Time limit as to recovery. — If the legislature thinks that a year is long enough to allow a party to recover his property from a third hand, and estab- lishes that time in cases where he has not been heard of for fourteen years, and presumably is dead, it acts within its con- stitutional discretion. Now and then an extraordinary case may turn up, but con- stitutional law, like other mortal con- trivances, has to take some chances, and in the great majority of instances, no doubt, justice will be done. Blinn %'. Nel- son, 222 U. S. 1, 56 L. Ed. 65. 32 S. Ct. 1. See American Land Co. v. Zeiss, 219 LT. S. 47, 67, 55 L. Ed. 82, 31 S. Ct. 200. To argue in such a case that the pro- visions of the statute are repugnant to the due process clause because a case may be conceived where rights iir and to property would be adversely affected without notice being actually conveyed by the proceedings is in effect to deny the power of the state to deal with the sub- ject. The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals. American Land -Co. v. Zeiss, 219 U. S. 47, 55 L. Ed. 82, 31 S. Ct. 200. See, also, ante, "Mere Possibility of Evil of Hardship in Particular Instances Not Sufficient to Invalidate Law," II, C, 6; "Construed in Light of Practical Af- fairs; Local Conditions, Habits, Customs, and Traditions of Particular Communi- ties," V, F. Same — In probate proceedings. — See, generally, post, EXECUTORS AND AD- MINISTRATORS. It is elementary that a probate pro- ceeding by which jurisdiction of a pro- bate court is asserted over the estate of a decedent for the purpose of administer- ing the same is in the nature of a proceed- ing in rem, and is therefore one as to which all the world is charged with no- tice. Goodrich v. Ferris, 214 U. S. 71, 53 L. Ed. 914, 29 S. Ct. 580. As held in Bellingham Bay, etc., R. Co. V. New Whatcom, 172 U. S. 314, 318, 43 L. Ed. 460, 19 S. Ct. 205, even though the power of a state legislature to prescribe length of notice is not absolute, yet it is certain "that only in a clear case will a notice authorize by the legislature be set aside as wholly ineffectual on account of the shortness of the time." Goodrich 7'. Ferris, 214 U. S. 71, 53 L. Ed. 914, 29 S. Ct. 580. A claim that ten days' statutory notice of the time appointed for action upon a petition for the settlement of the final ac- count of an executor and for the final distribution of the decedent's estate is so unreasonable as to a nonresident claim.ant as to be wanting in due process of law is too clearly unsubstantial and devoid of merit to furnish a basis for a direct ap- peal to the federal supreme court from a decree of a circuit court. Goodrich v. Fer- ris, 214 U. S. 71, 53 L. Ed. 914, 29 S. Ct. 580. "The distribution of the estate of Wil- liams was but an incident of the proceed- ing prescribed by the laws of California in respect to the administration of an es- tate in the custody of one of its probate courts. Under such circumstances, there- fore, and putting aside the question of 519 657 DUE PROCESS OF LAW. Vol. V. servants, comparative and contributory negligence, etc., see ante, Constitutional Lav^', p. 264; post. Fellow Servants; Negligence; Police PowLr. As to the power of congress to regulate commerce and to prevent interstate carriers from nullifying such regulations by pleading contract waiving or modifying such regu- lations, see post. Interstate and Foreign Commerce. As to the power of con- gress to outlaw existing contracts for rebates, free passes, etc., and prevent the parties thereto from setting them up in defense to prosecutions under the stat- whether or not the state of California did or did not possess ar'oitrary power in re- spect to the character and length of no- tice to he given of the various steps in the administration of an estate in the cus- tody of one of its courts, we hold that the claim that ten days' statutory notice of the time appointed for the settlement of the final account of the executor, and for action upon the petition for final dis- tribution of the Williams estate, was so unreasonable as to be wanting in due process of law, was clearly unsvibstantial and devoid of merit, and furnished no support for the contention that rights un- der the constitution of the United States had been violated." Goodrich v. Ferris, 214 U. S. 71, 53 L. Ed. 914, 29 S. Ct. 580. The case of Roller v. Holly, 176 U. S. 398, 44 L. Ed. 520, 20 S. Ct. 410, con- cerned the validity of original process by which the conceded property of a non- resident, situate within the jurisdiction of the state of Texas, was sought to be sub- jected to the control of its courts. The proposition which was presented for de- cision in that case was whether a statu- tory notice of five days, given to a resi- dent of Virginia requiring him to appear in Texas and defend a suit brought against him to foreclose a vendor's lien upon his land, constituted reasonable and adequate notice for the purpose. Mani- festly, that case is not, in any particular, analogous to the one under consideration, which is a case involving the devolution and administration of the estate of a decedent, a stibject peculiarly within state control. Goodrich v. Ferris, 214 U. S. 71, 53 L. Ed. 914, 29 S. Ct. 580; Case of Broaderick's Will, 21 Wall. 503, 519, 22 L. Ed. 599. Foreclosure of mortgage upon real es- tate of decedent — Necessity for notice to heirs. — See ante, "Right to Devise, Be- queath, or Inherit Property; Inheritance Taxes," VI, D, 1, j. Notice to bridge company in proceeding to compel modification or removal. — A bridge company convicted for failure to make the alterations in a bridge over an interstate waterway which the secretary of war, acting under the authority of the Act of March 3, 1899, § 18, requires, was afforded the reasonable opportunity to be heard, contemplated by that law, upon the question whether the biidge was, in fact, an unreasonable obstruction to navi- gation, where the company had full no- tice of the action of the officer of en- gineers, who, under the order of the secretary, made a tentative examination of the facts, and appeared at the regular final hearing before that officer, with liberty to contest the facts, and introduce any evidence pertinent to the case, and the decision of the secretary of war was based on the engineer officer's report of all the facts a^lduced before him, and which constituted the basis of his con- clusion that the bridge was an unreason- able obstruction to the navigation. Mo- nongahela Bridge Co. v. United States, 216 U. S. 177, 54 L. Ed. 435, 30 S. Ct. 356. Notice to Indian of intention to strike name from rolls. — Notice to the attorney for those v/hose names were duly entered as Creek freedmen by blood on the rolls made and approved by the secretary of the interior, given a few hours before the hearing of a motion to strike their names from the roll on the ground that their enrollment had been secured by perjury, was not such notice as afforded due process of law. Turner v. Fisher, 222 U. S. 204, 56 L. Ed. 165, 32 S. Ct. 37, affirm- ing judgment (1909), Same v. Garfield, 33 App. D. C. 195. See, also, ante, "Prop- erty and Tribal Rights of Indians," VI, D, 1, s. In summary proceedings to destroy property kept, sold, or used in violation of law. — See ante, "Summary Destruction of Property Kept, Sold or Used in Viola- tion of Law," VI, D, 2, b, (4), (b), (ee). In proceeding to regulate rates. — See ante, "As to Statute or Ordinance -Fix- ing Rates for Use of Public Utilities,'' VI, E, 3, b, (3). See, generally, post, PO- LICE POV'ER. In proceeding to compel production of corporate books and papers. — An oppor- tunity for hearing, suthcient to satisfy any requirement of Const. U. ,S. Amend. 14, respecting due process of law, is afforded by the provisions of Act Vt. Oct. 9, 1906, p. 79, No. 75, for the compulsory produc- tion of the books and papers of a corpora- tion before a court or grand jury, where the corporation has full opportunity to show cause before the court why it does not produce such books and papers, and, by objection to the production before the grand jury, can raise the question before that body, and is entitled to be heard upon that question before the court to which it is the grand jury's duty to re- port the question for its action. Judg- 520 Vol. V. DUB PROCESS OF LAW. 660 utes, see post, Interstate and Foreign Commerce. See, also, ante, "A Dis- tinction between Damaging and Taking," VI, D, 2, b, (3). 12. Statutes Affecting Rules of Evidence. — See note 35. 13. Laws Respecting Damages and Penalties. — See, generally. Constitu- tional Law, p. 264. See, also, ante, "As to What Shall Constitute an Actionable Wrong; Damages Recoverable," VI, A, 8, f. As to the powers of territorial leg- ment, In re Consolidated Rendering Co. (Vt. 1907), 66 A. 790, affirmed. Consoli- dated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. In quo warranto proceedings to oust foreign corporation under original juris- diction of state court of last resort. — See post, "As to Form of Judgment or De- cree," VI, E, 15. Before legislative or administrative body pending enactment of statute, pro- mulgation of order, etc. — See ante, "Leg- islative Judgments and Decrees," VI, E, 1, f. (3). 660-35. Statutes affecting rules of evi- dence. — As to the general power of the state to prescribe the evidence receivable in its courts and the effect thereof, see ante, CONSTITUTIONAL LAW, p. 264; post, EVIDENCE. .\s to the power of the legislature to create prima facie presumptions, see ante, CONSTITUTIONAL LAW, p. 264. Compelling production of corporate books and papers. — Laws 1906, p. 79, No. 75, provide that any corporation doing- business in the state shall upon notice produce before any court, grand jury, tribunal, or commission, acting under au- thority of the state, all books, correspond- ence, memoranda, reference, or informa- tion concerning the proceedings or sub- ject of inquiry pending liefore the body, and which may at any time have been made or kept within the state and are in the custody of the corporation, or which relate to any transaction within the state or with parties residing or having a place of business therein, and providing for the manner of service of the order to pro- duce and for punishment for contempt in case of noncompliance. Held, that the statute is not contrary to Const. U. S. Amend., art. 14, as depriving the corpora- tion of its property without due process of law, by authorizing a fine for con- tempt in case of refusal to produce docu- mentary evidence when ordered, since the law is not otherwise unconstitutional, and the proceedings for punishing the con- tempt are in accordance with the ordinary mode prescribed by law in such cases and adapted to the end to be attained. (1907), In re Consolidated Rendering Co., 66 A. 790, 80 Vt. 55, judgment affirmed. Con- solidated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. See, also, as to the production of books and papers situated without the state, ante, "Legislative Power Limited to Per- sons and Property within the Territorial Jurisdiction of the State," VI, A, 9. Same — Self-incrimination. — Due proc- ess of law is not denied by an order di- lecting the production of books and pa- pers by a foreign corporation sued for violating the Arkansas Anti-Trust Act (Act Ark. Jan. 23, 1905 [Acts 1905, p. 1]), because such order seeks to elicit proof not only as to the liability of the corpora- tion, but also evidence in its possession relevant to its defense. Judgment (1907), 100 S. W. 407, 81 Ark. 519, affirmed. Ham- mond Packing Co. v. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. As to self-incrimination and searches and seizures, see ante, CONSTITU- TIONAL LAW, p. 264; post, SEARCHES AND SEIZURES. As to the power of the court to strike the answer of a corporation in contempt, see ante, "The Right to Notice Implies the Right to Appear and Be Heard," VI, E, 3. d. Same — Fees and expenses. — Want of due process of law can not be urged against proceedings taken pursuant to Act Vt. Oct. 9, 1906, p. 79, No. 75, to compel a foreign corporation doing business in the state to produce books and papers be- fore the grand jury, on the theory that no compensation is provided for the time, trouble, and 'expense incurred in collect- ing documents outside the state and sending them into the state, and that private property is thus taken for public use without compensation, where the highest state court has held that the gen- eral law of the state in reference to the compensation of witnesses applies. Judg- ment, In re Consolidated Rendering Co. (Vt. 1907), 66 A. 790. affirmed. Consoli- dated Rendering Co. t'. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. Laws 1906, p. 79, No. 75, requiring cor- porations to produce, on notice, its books and papers, does not violate Const. U. S. Amend., art. 14, by taking property with- out due process of law, in that it provides no compensation for time, trouble, and expense in producing documents and pa> pars from other states, since the law pro- vides fees and mileage for witnesses, and any loss from inadequate fees is incident to the legitimate exercise of the powers of government for the public good. (1907), In re Consolidated Rendering Co.. 66 A. 790, 80 Vt. 55, judgment affirmed. Con- solidated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. 521 661 DUB PROCESS OF LAW. Vol. V. islatures, ante, Constitutional Law, p. 264. As to the denial of the equal pro- tection of the laws, see ante. Constitutional Law, p. 264. Double Damages, etc., for Trespass upon Public Lands. — The subjection to double damages and line or imprisonment under a state statute of one making a casual and involuntary trespass upon state lands by cutting timber thereon with- out a valid and existing permit does not deny due process of law, but may be justi- fied as a valid exercise of the police power, although the trespasser may have had reasonable grounds for believing that authority had been granted and honestly acted on such belief.^'^'^ Forfeiture of Charter or Violation of Law. — The state may lawfully pro- vide for the forfeiture of corporate charters for the violation of its laws; and a corporation whose charter is revoked under the operation of such a statute after notice, and full opportunity for hearing and defense, can not claim to have been deprived of its property in violation of the due process clause of the fourteenth amendment. ^'^''"'^ 14. Attorneys' Fees. — See ante. Constitutional Law, p. 264. 15. As to Form of Judgment or Decree. — Hearing to Correspond with Notice; Judgment Must Be Responsive to Pleadings and Cause of Ac- tion. — Though the court may possess jurisdiction of a cause, of the subject matter, and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments. It must act judicially in all things and can not then transcend the power conferred by the law.^"*^ Due process of law, under the fourteenth amendment, entitles the defendants to notice and an op- portunity to be heard. This necessarily requires that the notice and the hearing should correspond, and that the relief granted should be appropriate to that which has been heard and determined on such notice. For even if a court has original general jurisdiction criminal and civil, at law and in equity, it can not enter a judgment which is beyond the claim asserted, or which, in its essential character, is not responsive to the cause of action on which the proceeding was based. ^"^"^ 661-37a. Double damages, etc., for tres- Missouri, 224 U. S. 270, 56 L. Ed. 760, 767, pass upon public lands. — Shevlin-Carpen- 32 S. Ct. 40G. ter Co. V. Minnesota, 218 U. S. 57, 54 L. Illustration — Fine and ouster of foreign Ed. 930, 30 S. Ct. 663, affirming judgment corporation in original quo warranto pro- in State v. Shevlin-Carpenter Co. (1907), ceeding before state court of last resort. 113 N. W. 634, 102 Minn. 470. See, also, — Entry^ of a judgment of ouster and the as to double damages, ante, CONSTITU- imposition of a substantial fine in quo TIONAL LAW, p. 264. warranto proceedings against a corpora- 661-37b. Forfeiture of charter for viola- tion, conformably to the local practice, tion of law. — Cosmopolitan Club v. Com- afford suf^cient notice and opportunity to monwealth, 208 U. S. 378, 52 L. Ed. 536, be heard to satisfy the due process of law 28 S. Ct. 394. clause of U. S. Const., 14th Amend., al- Due process of law is not denied a so- though the information contains onlj- cial club by the revocation of its charter, general allegations of misuser, with only which, under Act Va. March 12, 1904, p. a prayer for ouster. Standard Oil Co. v. 214, c. 116, automatically followed a judg- Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 ment of a court of competent jurisdiction, S. Ct. 406. rendered with all the parties before it. There is no want of due process of law after giving full opportunity to be heard, in a judgment of the highest court of a that such club was being conducted for state, imposing a substantial fine in quo the purpose of violating and evading the warranto proceedings, conformably to the laws of the state regulating the licensing local practice, upon a foreign corporation and sale of liquors. Cosmopolitan Club found to have misused its license to do V. Commonwealth, 208 U. S. 378, 52 L. Ed. business in the state, although there was 536, 28 S. Ct. 394. no statute fixing a maximum penalty, no 661-37C. Hearing to correspond with no- rule for measuring damages, and no hear- tice — Judgment to be responsive to plead- ing on that subject. Standard Oil Co. v. ings and cause of action.— Standard Oil Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 Co. V. Missouri, 224 U. S. 270, 56 L. Ed. S. Ct. 406. 760, 767, 32 S. Ct. 406. The judgment for a fine of $50,000, was 661-37d. Same. — Standard Oil Co. v. not a criminal sentence in a civil suit, be- 522 Vol. Y. DUB PROCESS OF LAW. 662-663 16. As TO THE Constitutionality of Reviewing, Modifying, or Annull- ing Judgments and Decrees. — See ante. Constitutional Law, p. 264. 17. As Guaranteeing Right of Appeal, Rehearing, or Other Form of Review. — See notes 40, 41. 18. Due Process on Appeal or Writ of Error — a. Generally in State Courts. — See note 44. b. Jurisdiction on Appeal; Decisions Reviewable; Scope of Review; Rule of Decision; etc. — See, generally, ante, Appeal and Error, p. 34. See, also, ante, "Scope of Review by Federal Supreme Court," VI, B, 6. yond the issues and 'the prayer for relief in the information, and therefore void, as having been in substance entered without notice and opportunity to be heard for, in Missouri, and prior to the decisions in this case, the rulings were to the effect that the supreme court of Missouri had jurisdiction not only to oust, but to im- pose a substantial fine in quo warranto. Standard Oil Co. v. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. Defendants insisted that there was nothing in the pleading to indicate that such an issue was to be tried, nor any prayer warranting such relief; and hence that the judgment was wanting in due process of law, and void for want of no- tice of what was to be heard and de- termined. Answering this contention, the court said: "It is true that the informa- tion did not ask for damages or that a fine should be imposed. But if this be treated as a criminal case, a prayer was no more necessary than in an indictment or ordinary information; since such pro- ceedings never contain any reference whatever to the judgment or sentence to be rendered on conviction. In civil suits the pleadings should, no doubt, contain a prayer for judgment, so as to show that the judicial power of the court is in- voked. The rules of practice also may well require that the plaintiff should indi- cate what remedy he seeks. But the prayer does not constitute a part of the notice guaranteed by the constitution. The facts stated fix the limit of the re- lief that can be granted. While the judg- ment must not go beyond that to which the plaintiff v.'as entitled on proof of the allegations made, yet the court may grant other and different relief than that for \vhich he prayed." Standard Oil Co. r. :\rissouri. 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. The real objection is not so much to the existence of the power to fix the amount of the fine, as the fact that, when exer- cised by the supreme court of the state, it is not subject to review, and is said to be unlimited. But it is limited. Waters- Pierce Oil Co. V. Texas, No. 1, 212 U. S. 86, 111, 53 L. Ed. 417, 29 S. Ct. 220._ It is limited by the obligation to administer justice, and to no more assess excessive damages than to impose excessive fines. But the power to render a final judgment must be lodged somewhere. In every case a point is reached where litigation must cease. What that point is can be determined by the legislative power of the state, for right of appeal is not es- sential to due process of law. Twining V. New Jersey, 211 U. S. 78, 111, 53 L. Ed. 97, 111, 29 S. Ct. 14; Standard Oil Co. v. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. 662-40. Due process as requiring right of appeal or other form of review. — Twin- ing V. New Jersey, 211 U. S. 78, 111, 53 L. Ed. 97, 29 S. Ct. 14; Standard Oil Co. V. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406; United States v. Heinze, 218 U. S. 532, 54 L. Ed. 139, 31 S. Ct. 98. Fine and ouster of foreign corporation in original quo warranto proceedings in state court of last resort. — See ante, "As to Form of Judgment or Decree,'" VI, E, 15. 662-41. Same — In criminal cases. — Twining v. New Jersey, 211 U. S. 78, 111, 53 L. Ed. 97, 29 S. Ct. 14; Standard Oil Co. V. Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406; United States v. Heinze, 218 U. S. 532, 54 L. Ed. 139, 31 S. Ct. 98. The right of appeal to a higher court is not essential to due process of law. Therefore, the federal statute which per- mits the government, upon demurrer to an indictment being sustained, to take the cause directly and at once to the federal supreme court does not deny due process of law to the defendant because imder the same act he is not permitted to appeal to a higher court until final determination of the cause, and then only to the circuit court of appeals. United States v. Heinze, 218 U. S. 532, 54 L. Ed. 139, 31 S. Ct. 98. See ante, CONSTITUTIONAL LAW. p. 264. 663-44. Due process of appeal — Supply- ing deficiencies in record ex mero matu in absence of accused. — Due process of law was not denied by the action of the supreme court of the Philippine Islands in making an order upon its own motion when the accused were absent from the court, requiring the judge and clerk of the court below to supply deficiencies in the record. Dowdell v. United States, 221 U. S. 325, 55 L. Ed. 753. 31 S. Ct. 590. 523 664-66 5 DUE PROCESS OF LAW. Vol. V. Refusal Ex Mero Matu to Recognize Equitable Defenses Acquiesced in and Treated as Legal below. — Plaintiffs in error in a federal circuit court of appeals are substantially denied their day in court by an affirmance of the judg- ment below on the ground that the defenses relied upon were of an equitable na- ture, not cognizable in a court of law, where the trial court, with the acquies- cence of all parties, treated the defenses interposed by the answer as legal in their nature, and no such question was raised by either party or considered when the cause was submitted to the circuit court of Appeals."'^'' Rule of Decision in State Court— Giving Retroactive Effect to Statute Enacted Pending Appeal. — The decision of a state court will not be deemed to present a question respecting due process of law which will sustain a writ of error from the supreme court of the United States, on the theory that such deci- sion gave retroactive effect to a statute passed since the argument of the appeal before the state court, where the language of the court's opinion may equally well be interpreted as a declination to pass upon a (|uestion not necessary to the decision, which had been set at rest for the future by legislation.-'-'''' Confining Scope of Judicial Review to Evidence Submitted to Rail- road Commission. — Confining the scope of the judicial review of the reason- ableness of an order of the state railroad commission requiring trackage connec- tions between railway companies for the interchange of business to the testimony which has been submitted to the commission, as is done by Wash. Laws 1907, chap. 226, does not take the property of the carriers without due process of law, where the statute provides for a "full hearing" before the commission, at which the carriers may show that the order asked for, if granted, will be unreason- able.-*^'^ c. Presumptions on Appeal. — See note 46. 19. Due Process in Particular Proceedings — i. Admission, Exclusion, and Deportation of Aliens. — See, generally, ante, Aliens, p. 18; Chinese Excluskjn Acts, p. 232; Civil Rights, p. 236. 1. Escheats. — Estates of Persons Absent and Unheard of. — The right to regulate concerning the estate or property of absentees is an attribute, which, in its very essence, must belong to all governments to the end that they may be able to perform the purposes for which government exists.^''^ 664-45b. Refusal, ex mero matu, to companies at certain points for the inter- recognize equitable defenses acquiesced in change of business, can not be supplied and treated as legal below.— Lutcher, etc., on judicial review by a presumption aris- Lumber Co. z\ Knight, 217 U. S. 257, 54 ing from the failure of the carrier to pro- L. Ed. 757, 30 S. Ct. 505, reversing 84 C. duce its records to disprove what had not C. A. 679, 156 Fed. 1022, and following been established, where the statute un- Burbank z: Bigelovv, 154 U. S.. appx.. 558, "der which the conmiission acted confines 19 L. Ed. 51, 23 L. Ed. 542, 14 S. Ct. 11(53. the scope of the judicial review of the 664-45C. Rule of decision in state court reasonableness of the order to the testi- — Giving retroactive effect to statute en- mony which has been submitted to the acted pending appeal. — Stricknej' v. Kel- commission. Oregon R., etc., Co. z'. Fair- sey, 209 U. S. 419, 52 L. Ed. 863, 28 S. Ct. child, 224 U. S. 510, 56 L. Ed. 863, 32 S. 508. Ct. 535. 664-45d. Confining scope of judicial re- 665-47a. Escheats, estate of persons ab- view to evidence submitted to railroad sent and unheard of. — Cunnius z\ Reading- commission.— Oregon R.. etc., Co. t. School Dist., 198 U. S. 458, 469, 49 L. Ed. Fairchild, 224 U. S. 510, 56 L. Ed. 863, 32 1125, 25 S. Ct. 721; Blinn v. Nelson, 222 S. Ct. 535. U. S. 1, 56 L. Ed. 65, 32 S. Ct. 1; Provi- 664-46. Presumptions on appeal— To dent Inst. v. Malone, 221 U. S. 660, 55 L. supply deficiencies of evidence. — The in- Ed. 899. 31 S. Ct. 661. sufficiency of the evidence Ijefore the state Bank accounts of absent and unknown lailroad commission to sustain, on the depositors. — A state law which deals with ground of public necessity, under the due savings accounts of depositors who have process of law clause of the federal con- l^een absent and unheard of, and who have stitution, its order requiring trackage for a long time failed to exercise any ac- connections between competing railway tive ownership, and which presumes that 524 \'ol. V DUE PROCESS OF LAW. 666 20. Due Process in Criminal Proceedings — a. As to the Pozcer of the States to Define and Pioiish Crime and Regulate Criminal Proceedings. — See notes 50 51, 52. b. As Requiring Equal and Impartial Justice. — See ante, "As Guaranteeing Equal and Impartial Justice to All Persons," \l, E, 2; "As to the Power of the State to Define and Punish Crime and Regulate Criminal Proceedings," VI, E, 20. See, also, ante, Constitutional Law, p. 264. such depositors have abandoned their property, and which provides a method whereby after reasonable notice the funds standing to the credit of such depositors shall be turned over \o a designated state officer to be preserved until such depos- itor or his representative shall appear to claim it, or, failing that, until it shall be escheated to the state, is within flie un- doubted power of the legislature. Provi- dent Inst. V. Malone, 221 U. S. 660. 55 L Ed. 899, 31 S. Ct. 661, following Cunnius c'. Reading School Dist., 198 U. S. 458, 49 L. Ed. 1125, 25 S. Ct. 721. The propertj"- of a savings bank is not taken without due process of law by Laws Mass. 1907, c. 340, providing that deposits which have remained inactive and unclaimed for thirty years, where the claimant is unknown or the depositor can not be found, shall be paid to the treas- urer and receiver general, to be held bj^ him as trtistee for the true owner or his legal representatives. (1911), Provident Tnst. V. INIalone, 221 U. S. 060, 55 L. Ed. S99, 31 S. Ct. 661, affirming judgment (1909), Malone v. Provident Institution for Savings in Boston, 86 X. E. 912, 201 [Mass. 23. 666-50. Pov/er to define and punish crime reserved to the states. — See, gen- erally, ante, CONSTITUTIONAL LAW. p. 264. And see ante, "As to Power of State to Define and Punish Crime," VI, A, 8. e. Illustrations, power to punish acts which "tend" or which are "calculated" to accomplish the prohibited result. — The Texas anti-trust laws of 1809 and 1903 are not so uncertain and indefinite as to be unconstitutional nor was there a depriva- tion of due process of law because the statutes permitted, and the court charged, that there might be a conviction not onl}- for acts which accomplished the pro hibited result, but also for those which tend or are reasonably calculated to bring about the things forbidden. Waters- Pierce Oil Co. V. Texas, No. 1. 212 U. S. SO. Ill, 53 L. Ed. 417, 29 S. Ct. 220. Same — Absolute offenses — Power to ex- clude elements of knowledge, negligence, etc. — The power of the legislature to de- clare an ofifense and to exclude the ele- ments of knowledge and due diligence from any inquiry as to its commission can not be questioned. Chicago, etc., R. Co. v. United States, 220 U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612. Tor example, it was competent for con- gress, in enacting the Safety Appliance Acts of March 2, 1893 (27 Stat, at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), April 1, 1896 (29 Stat, at L. 85, c. 87, U. S. Comp. Stat. 1901, p. 3175), and March 2, 1903 (32 Stat, at L. 943. chap. 976, U. S. Comp. Stat. Supp. 1909, p. 1143), to impose an absolute liability upon car- riers engaged in moving interstate com- merce, whose cars do not satisfy the re- quirements of those acts, so that the car- riers whose cars do not conform to the requirements of those acts can not escape Haliility by showing that they exercised reasonable care in equipping their cars with the required safety appliances, and that they used due care and diligence to keep them in repair by the usual inspec- tion. In short, it was competent for con- gress to impose upon the carriers an abso- lute duty which is not discharged by the exercise of reasonable care and diligence. Chicago, etc., R. Co. v. United States, 220 U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612, fol- lowing St. Louis, etc., R. Co. v. Taylor. 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 666-51. Same— Effect of fourteenth amendment. — The fourteenth amendment was not intended to, and does not, limit the powers of a state in dealing with crime committed within its own borders or with the punishment thereof, although no state can deprive particular persons or classes of persons of equal and impartial justice under the law. In re Kemmler, 136 U. S. 436, 448, 34 L. Ed. 519, 10 S. Ct. 930; Caldwell v. Texas, 137 U.' S. 692, 34 L. Ed. 816, 11 S. Ct. 224; Ughbanks v. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. 666-52. When requirements of due process satisfied — General statement. — Generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judg- ment awarded within the authority of a constitutional law, then he has due proc- ess of law. Ong Chang Wing v. United States, 218 U. S. 272, 54 L. Ed. 1040, 31 S. Ct. 15; Rogers v. Peck, 199 U. S. 425, 435. 50 L. Ed. 256, 26 S. Ct. 87; Twining V. New Jersey, 211 U. S. 78, 53 L. Ed. 97. 29 S. Ct. 14, and the cases therein cited. 52c 667 DUE PROCESS OF LAW. Vol. V. c. As Requiring Full Judicial Trial; Summary Proceedings. — See, also, ante, "Summary Destruction of Property Kept, Sold or Used in Violation of Law," VI, D, 2, b, (4), (b), (ee) ; "Judicial Proceeding Not Always Required," VI, E, 1, f, (2). Commitment under Executive Process in Time of Insurrection or Other Police Danger. — When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Open insurrection or other public danger warrants the substitution of executive for judicial process. ^^^ The gov- ernor's declaration that a state of insurrection exists is conclusive of that fact.^'^'* So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and can not be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief. ^^^ This is true not only with regard to killing men in the actual clash of arms, but t\je same is true of temporary de- tention to prevent apprehended harm.^^*^ d. As Requiring a Competent Tribunal. — See, also, ante, "Generally; Require- ment Satisfied by Regular Course of Proceedings before a Competent Tribunal," VI,E, 1, f, (1). Insanity of Juror. — Due process implies a tribunal both impartial and mentally competent to afford a hearing. But to say that due process is denied when a competent state court refuses to set aside the verdict of a jury because the sanity of one of its members was established by only a preponderance of evi- dence would be to enforce an exaction unknown to the precedents of the past, and an interference with the discretion and power of the state not justified by the demands of justice, nor recognized by any definition of due process. ^^^ e. As Securing the Benefit of the First Ten Amendments to the Accused in a State Court. — See, generally, ante, Constitutional Law, p. 264. See, also, ante, "Effect of Fourteenth Amendment as Forbidding the States to Abridge the Rights Secured by the First Ten Amendments," VI, A, 3. Due Process as Guaranteeing Exemption from Self-incrimination. — The privilege of the exemption from self-incrimination, if fundamental in any sense, is not fundamental in due process of law, nor an essential part of it.^^' As Forbidding Accused to Be Placed Twice in Jeopardy. — A specific contention on the trial of a criminal cause in a state court, that the denial of the accused of the benefit of his plea of former jeopardy operates to deprive him of 667-55a. Commitment under executive government to suppress an insurrection, process in time of insurrection or other does not deprive the person imprisoned pubUc danger. — Moyer v. Peabody, 212 U. of his Hberty without due process of law. S. 78, 53 L. Ed. 410, 29 S. Ct. 235. See, Moyer v. Peabody, 212 U. S. 78. 53 L. Ed. also, Keely v. Sanders, 99 U. S. 441, 446, 410, 29 S. Ct. 235. 25 L. Ed. 327. 667-55e. Insanity of juror. — Jordan v. 667-55b. Governor's declaration as to Massachusetts, 225 U. S. 167, 56 L. Ed. existence of insurrection conclusive. — 1038, 32 S. Ct. 651. Moyer v. Peabody, 212 U. S. 78, 53 L. Ed. 667-55f. Due process as guaranteeing 410, 29 S. Ct. 235. exemption from self-incrimination.— 667-55C. Civil action against governor. Twining v. New Jersey, 211 U. S. 78, 53 —Moyer v. Peabody, 212 U. S. 78, 85, 53 L. Ed. 97, 29 S. Ct. 14. L. Ed. 410. 29 S. Ct. 235. Exemption from self-incrimination is 667-55d. Temporary detentions. — Moyer not safeguarded as against state action by V. Peabody, 212 U. S. 78, 85, 53 L. Ed. 410, the provision of Const. U. S. Amend. 14, 29 S. Ct. 235. that no state shall deprive any person of Imprisonment for two and one-half life, liberty, or property without due months under the order of the governor process of law. Judgment, State of New of a state, without sufficient reason, but Jersey v. Twining (1906), 64 A. 1073, 73 in good faith, in the exercise of his power N. J. Law. 683, affirmed. Twining v. New under the state constitution and laws to Jersey, 211 U. S. 78, 53 L. Ed. 97, 29 S. call upon the military arm of the state Ct. 14. 526 Vol. V. DUB PROCESS OF LAW. 667 his liberty without due process of law, contrary to U. S. const., fourteenth amend- ment, raises a federal question which will sustain a writ of error from the fed- eral supreme court to review the judgment of the highest court of the state, af- firming the conviction below. ■''^'° As Protecting the Accused against the Enforcement of Ex Post Facto Laws and Punishments. — The due prQcess of law secured to the people of the Philippine Islands by Act July 1, 1902, c. 1369, § 5, 32 Stat. 692, was not de- nied by the affirmance in the supreme court of the Philippine Islands of a con- viction of the offense described in Philippine Penal Code, art. 343, which was re- pealed after the conviction and sentence in the court of first instance by the act of the Philippine commission of October 9, 1907, Act No. 1757, the repealing act also providing for the punishment of the same offense, and within limitations not exceeded by the sentence imposed under the former act.^^'^ f. Due Process as Requiring an Indictment by a Grand Jury; Number of Grand Jurors. — See note 56. 667-55g. As forbidding accused to be placed twice in jeopardy. — Keerl v. Mon- tana, 213 U. S. 135, 53 L. Ed. 734, 29 S. Ct. 169. Whether or not, however, the denial to the accused of the benefit of his plea of former jeopardy constituted a denial of due process of law within the meaning of the fourteenth amendment was not de- cided in this case because the decision went off upon the point that a plea of former jeopardy could not be based upon the discharge of the jury at a former trial because of their inability to agree upon a verdict after they had been out for twenty-four hours. Keerl v. Montana, 213 U. S. 135, 53 L. Ed. 734, 29 S. Ct. 469. The contention that a second convic- tion of a public officer for failing, on de- mand, to pay over certain public moneys, deprives him of his liberty without due process of law, in violation of Const. U. S. Amend. 14, by twice subjecting him to jeopardy for the same offense, presents no federal question which will sustain a writ of error from the federal supreme court to the highest court of a state, where the latter court decides that the accused was not put in jeopardy by his prior conviction, because such conviction was reversed on the ground that there had then been no legal demand. Shoener V. Commonwealth, 207 U. S. 188, 52 L. Ed. 163, 28 S. Ct. 110. 667-55h. Expost facto laws and pun- ishments — Affirmance of conviction under statute since repealed. — Ong Chang Wing V. United States, 218 U. S. 272, 54 L. Ed. 1040, 31 S. Ct. 15. See, also, ante, CON- STITUTIONAL LAW, p. 264. Speaking of this case, the court says: "In the present case there can be no doubt that the law-making power in the Philippine Islands could, by statutory en- actment, have preserved the right to prosecute and punish offenses committed in violation of the former law wliile in force in the islands, notwithstanding the repeal of the act. The effect of the de- cision of the Philippine supreme court is to hold that under the law and local stat- utes, the repealing act re-enacting sub- stantially the former law, and not in- creasing the punishment of the accused, the right still exists to punish the accused for an oft'ense of which they were con- victed and sentenced before the passage of the later act. In other words, the ef- fect of the decision construing the local law is to accomplish what it was clearly within the power of the legislative au- thority to do by an express act saving the right to proceed as to offenses already committed. The accused have not been punished for a crime which was not punishable when committed by the sentence imposed. The supreme court has only held that the right to impose the penalty of the law under the Philip- pine Penal Code has not been taken away by the subsequent statute. We are un- able to see that due process of law, which is the right of a person accused of a crime, when prosecuted within a ju- risdiction wherein the constitution of the United States, or a statute embracing its provisions, is in force, has been denied." Ong Chang Wing v. United States, 218 U. S. 272, 54 L. Ed. 1040, 31 S. Ct. 15. 667-56. Due process as requiring indict- ment by grand jury.— Due process of law does not require that a criminal charge be presented by an indictment found by a grand jury. Dowdell v. United States, 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590; Jordan v. Massachusetts, 225 U. S. 167, 56 L. Ed. 1038, 32 S. Ct. 651. Due process is not denied in criminal cases by a state law which dispenses with a grand jury indictment and permits a prosecution upon information. Jordan v. Massachusetts, 225 U. S. 167, 56 L. Ed. 1038, 32 S. Ct. 651; Graham v. West Vir- ginia, 224 U. S. 616, 56 L. Ed. 917, 32 S.. Ct. 583. 527 670-674 DUB PROCESS OF LAW. Vol. V. i. Form and Sufficiency of Indictment. — See post, Indictments, Informa- tions, Prp:sentments, and Complaints. k. Due Process in the Granting and Refusing of Motions, Challenges, etc. — See, generally, post, Evidence; Grand Jury; Jury. As to due process in the granting or denial of a motion for a continuance, see ante, Continuances, p. 371. 1. Jur\ Trial Not Essential ; Number, Qualification, and Selection of Jurors. — See note 62. n. Due Process in the Admission and Exclusion of Evidence. — See note 68. o. Instructions. — See post. Instructions. As to instructions in specific cases, see the appropriate titles in this supplement. q. Punishments: Kind, Degree and Manner of Enforcement. — See note 78. 670-62. Jury trial not essential — Num- ber, qualification, and selection of jurors. — In criminal cases, due process of law is not denied by a state law which dis- penses with a grand jury indictment and permits prosecution upon information, nor by a law which dispenses with the necessity of a jury of twelve, or una- nimity in the verdict. Indeed, the re- quirement of due process does not de- prive a state of the power to dispense with jury trial altogether. Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232, 4 S. Ct. Ill, 292; Maxwell v. Dow, 176 U. S. 581, 44 L. Ed. 597, 20 S. Ct. 448. When the essential elements of a court having jurisdiction in which an opportunity for a hearing is afforded are present, the power of a state over its methods of pro- cedure is substantially unrestricted by the due process clause of the constitution. Jordan v. Massachusetts, 225 U. S. 167, 56 L. Ed. 1038, 1042. 32 S. Ct. 651. See, generally, post, JURY. Fine and ouster of corporation by quo warranto proceeding in state court of last resort. — See ante, "As to Form of Judg- ment or Decree," VI, E, 15. 672-68. States to prescribe evidence to be received in state court. — See, generally, ante, CONSTITUTIONAL LAW, p. 264; post, EVIDENCE. As to the power of the state to create prima facie presumptions, see ante, CON- STITUTIONAL LAW, P- 264. See, also, ante, "Statutes Affecting Rules of Evi- dence," VI, E, 12. As to the privilege of the accused against self-incrimination see ante, "As Securing the Benefit of the First Ten Amendments to the Accused in a State Court," VI, E, 20, e. See, also, ante, CONSTITUTIONAL LAW, p. 264. Weight of evidence on issue as to sanity of juror, — One convicted of crime in a state court is not denied due process of law because, on the motion for a new trial, based upon the suggestion of the insanity of a juror, at the time of the trial, and it being shown that such juror was insane at a time subsequent to the trial, the state, conformably to the local law, was only required to establish the sanity of the juror at the time of the trial by a fair preponderance of the evi- dence, and not beyond a reasonable doubt. Jordan v. Massachusetts, 225 U. S. 167^ 56 L. Ed. 1038, 32 S. Ct. 651. The proceeding here in question was in absolute conformity to the Massachusetts law of criminal procedure, and no fun- damental principle of justice was violated by a determination of the mental capacity of the juror by a preponderance of the evidence. Neither is there any estab- lished rule of the common law incon- sistent with the practice adopted in this case. There are many decisions in ac- cord with the Massachusetts view of the law, among theni being: State v. Scott, 8 N. C. (1 Hawks) 24; Burik v. Dundee Woolen Co., 66 N. J. L. 420, 49 Atl. 442; State V. Howard, 118 Mo. 127, 24 S. W. 41; Surles v. State, 89 Ga. 167, 15 S. E. 38; Jordan v. Massachusetts, 225 U. S- 167, 56 L. Ed. 1038, 32 S. Ct. 651. 674-78. Punishments, kind, degree and manner of enforcing. — "The fixing of punishment for crime or penalties for un- lawful acts against its laws is within the police power of the state. We can only interfere with such legislation and judicial action of the states enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law." Waters- Pierce Oil Co. V. Texas, No. 1, 212 U. S. 86, 111, 53 L. Ed. 417, 29 S. Ct. 220; Coffey V. County of Harlan, 204 U. S. 059. 51 L. Ed. 666. Penalties imposed by the jury and con- firmed by the state courts at the rate of $1,500 and $50 per day for violating, re- spectively, through a series of years, the Texas anti-trust laws of May 25. 1899 (Laws 1899, p. 246. c. 146), and of March 31, 1903 (Laws 1903, p. 119, c. 94). are not so excessive as to deprive the defendant corporation of its property without due process of law, where such property amounts to more than $40,000,000, and its dividends have been as high as 700 per cent per annum. Judgment (Tex. Civ. App. 1908), 106 S. W. 918, affirmed. Waters- 528 \^ol. V. DUB PROCESS OF LAW. 676 s. Appeal, Writ of Error, Ne%v Trial, etc. — See, generally, ante, "As Guaran- teeing Right of Appeal, Rehearing, or Other Form of Review," VI, E, 17; "Due Process on Appeal or Writ of Error," VI, E, 18. See, also, ante, Appeal and Error, p. 34; Constitutional Law, p. 264. As to discriminating in favor of the government and against the accused in the matter of the right to appeal, see ante. Constitutional Law, p. 264. See, also, ante, "As Guaranteeing Right of Appeal, Rehearing, or Other Form of Review," VI, E, 17. As to judgment of fine and ouster of foreign corporations by quo warranto proceedings under the original jurisdiction of a state court of last resort, see ante, "As to Form of Judg- ment or Decree," \'I, E, 15. VII. Remedies. A. Generally of the Right to Some Form of Remedy. — See note 84. Pierce Oil Co. v. Texas, No. 1. 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. -220. Double damages or penalties in certain cases. — See ante, "Laws Respecting Dam- ages and Penalties," VI, E, 13. Forfeiture of charter for violation of law. — See ante, "Laws Respecting Dam- ages and Penalties,"' VI, E, 13. Increased punishment for subsequent offenses — Manner of ascertaining and en- forcing.— See. also, ante, CONSTITU- TIONAL LAW, p. 264. A former convict is not denied due process of law by bringing him, after con- viction, before the court of another county in a separate proceeding instituted con- form.able to W. Va. Code, chap. 16.5, §§ 1-5, by information charging him with prior convictions, w^hich were not alleged in the indictment on which he was last tried and convicted, and, on the finding of the jury that he was the former convict, sentencing him to the additional punishment which chap. 152, §§ 23, 24, in such cases pre- scribes. Grahain v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583. It can not be said that tlie prisoner was deprived of due process of law because the question as to former conviction was passed upon separately. While it is fa- miliar practice to set forth in the indict- ment the fact of prior conviction of an- other offense, and to submit to the jury the evidence upon that issue, together with that relating to the commission of the crime which the indictment charges, still in its nature it is a distinct issue, and it may appropriately be the subject of sep- arate determination. Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583. Nor is there any reason why such a pro- ceeding should not be prosecuted upon an information presented by a competent public officer on his oath of office. There is no occasion for an indictment. To re- peat, the inquiry is not into tlie commis- sion of an offense; as to this, indictment has already been found and the accused convicted. There remains simply the question as to the fact of previous convic- 12 U S Enc— 34 529 tion. And it can not be contended that in proceeding by information instead of by indictment, there is any violation of the requirement of due process of law. Gra- ham V. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583; Hurtado v. Califor- nia, 110 U. S. 516, 28 L. Ed. 232, 4 S. Ct. Ill, 292; Brown v. New Jersey, 175 U. S. 172, 175, 44 L. Ed. 119, 20 S. Ct. 77; Max- well V. Dow, 176 U. S. 581, 44 L. Ed. 597, 20 S. Ct. 448. Same — Indeterminate Sentence Acts.— A person sentenced under the Indeterminate Sentence Act (Pub. Acts 1903, No. 136) after having been twice before convicted of felony is not imprisoned without due process of law because he is deprived by that act of the privilege therein accorded to other convicts at the end of the mini- mum term of the sentence to make appli- cation for parole, though it gives no hear- ing on the question of prior conviction. Ughbanks v. Armstrong, 208 U. S. 481, 52 L. Ed. 582, 28 S. Ct. 372. Fine and ouster of corporation in quo warranto proceedings before state court of last resort. — See ante, "As to Form of Judgment or Decree," VI, E, 15. 676-84. Right of access to the courts — Penalties so severe as to deter resort to the courts to test law. — See, also, ante, CONSTITUTIONAL LAW, p. 264. A statute providing for the establish- ment of rates for railroad transportation without giving the corporation an oppor- tunity to be heard, which fixes penalties for disobedience of its provisions by fines so enorinous and imprisonment so severe as to intimidate the corporations and their officers from resorting to the courts to test the validity of the rates, is unconsti- tutional, on its face, and without regard to the sufficiency of the rates as depriving the corporations of the equal protection of the laws. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. Whether or not a railroad company is deprived of the equal protection of the laws, and its property rendered liable to be taken without due process of law, by a state statute providing for the establish- 676-680 DUE PROCESS OF LAW Vol. V. B. Remedy against the United States. — See notes 85, 91, 95. C. Remedy against a State. — See notes 96, 1, 3, 5. ment of rates of transportation, because the penalties fixed for violation of the statute are so enormous as to require obe- dience to the law rather than risk the pen- alties in testing it, although such obedi- ence might, in the end, result in confisca- tion of the railroad property, is a federal question, within the jurisdiction of the circuit court of the United States. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. Section 4 of the North Carolina act of 1907 (Pub. Laws 1907, p. 250, c. 216), prescribing the maximum rates which may be charged by railroad companies for the carriage of passengers within the state, which provides that any railroad company violating any provision of the act shall be liable to a penalty of $500 for each violation payable to the person ag- grieved, and any agent of such company violating the act shall be guilty of a mis- demeanor and subject to fine and im- prisonment or both, is unconstitutional as a denial to the railroad companies of the equal protection of the laws by sub- jecting them to excessive and ruinous penalties if they exercise their right to contest the validity of the law in the courts. (C. C. 1907) Ex parte Wood, 155 F. 190, judgment affirmed. Hunter v. Wood, 209 U. S. 205, 52 L. Ed. 747, 28 S. Ct. 472. 676-85. Right to remedy against the United States. — See post, "Particular Remedies," VII, E. 677-91. But contract implied where government takes land to which it makes no claim. — A private right of way is an easement and is land for which an action ex contractu against the United States will lie when such right of way is de- stroyed by the flooding of land actually taken by the government in the construc- tion of a dam. The same reasoning which allows a recovery for the taking of land by permanent occupation allows it for a right of way taken in the same manner; and the value of the easement can not be determined without reference to the dom- inant estate to which it is attached. United States z: Welch, 217 U. S. 3.33, 54 L. Ed. 787, 30 S. Ct. 527. 678-95. Suit against individual officers. — See post, "Particular Remedies," VII, E. 678-96. Remedy against state. — See post, "Particular Remedies," VII, E. See, generally, as to suits against states, post, STATES. 679-1. Immunity from suit not to be interpreted as nullifying the fourteenth amendment. — Hopkins f. Clemson Agri- cultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. 680-3. Unconstitutional law of no valid- ity. — A void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection. Who- ever seeks to enforce unconstitutional statutes, or to justify under them, or to obtain immunity through them, fails in his defense and in his claim of exemption from suit. Hopkins v. Clemson Agricul- tural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. 680-5. May sue or resist individuals rep- resenting the state. — Immunity from suit is a high attribute of sovereignty, prerog- ative of the state itself, which can not be availed of by public agents when sued for their own torts. The eleventh amend- ment was not intended to afford them freedom from liability in any case where, under color of their office, they have in- jured one of the state's citizens. To grant them such immunity would be to create a privileged class, free from liability for wrongs inflicted or injuries threatened. Public agents must be liable to the law, unless they are to be put above the law. For how "can these principles of individ- ual liberty and right be maintained if, when violated, the judicial tribunals are forbidden to visit penalties upon individ- ual offenders * * * whenever they in- terpose the shield of the state? * * * The whole frame and scheme of the polit- ical institutions of this country, state and federal protest" against extending to any agent the sovereign's exemption from le- gal process. Hopkins v. Clemson Agri- cultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654; Poindexter v. Green- how, 114 U. S. 270, 291, 29 L. Ed. 185, 5 S. Ct. 903. Same — Flooding of land by state col- lege — Liability to suit. — The doctrine that the flooding of land caused by the erection of a dam is a substantial taking of the land for which compensation must be made under the due process clause of the fourteenth amendment applies to the case of an agricultural college owned and maintained by the state, and which, in an attempt to prevent the flooding of its own lands by the building of an embankment, has flooded the lands of an individual proprietor. And neither the college nor the individual officers erecting and main- taining such emliankment can escape li- ability from suit on the plea that the action is, in effect, against the state. Hop- kins V. Clemson Agricultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. "But the plaintiff is not seeking here to hold the College liable for the nonfea- sance or misfeasance either of its own of- ficers or officers of the public. This is a suit against the College itself for its own 530 Vol. V. DUB PROCESS OF LAW. 680 E. Particular Remedies. — See, generally, the specific titles, such as, ante. Actions, p. 7; Civiiv Rights, p. 236; Damages, p. 455; post, Ejectment; Emi- nent Domain; Habeas Corpus; Injunctions; Mandamus; Prohibition; Re- moval OF Causes. See, also, ante, "Decision of State Court Conclusive as to Whether Act or Proceeding Was in Conformity to State Law and Practice," \'I, B, 4; "Scope of Review by Federal Supreme Court," VI, B, 6. Remedy by Injunction — Enjoining Civil and Criminal Proceedings. — A court of equity has no jurisdiction over the prosecution, the punishment, or the pardon of crimes and misdemeanors. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punish- ment of offenses, is to invade the domain of the courts of the common law, or of the executive and administrative department of the government. ^^ But a dis- tinction obtains when it is found to be essential to the protection of the property rights, as to which the jurisdiction of a court of equity has been invoked, that it should restrain the defendant from instituting criminal actions involving the same legal questions. This is illustrated in the decisions in which ofhcers have been enjoined from bringing criminal proceedings to compel obedience to un- constitutional requirements. In this, there is no attempt to restrain a court from trying persons charged with crime, or the grand jury from the exercise of its functions, but the injunction binds the defendant not to resort to criminal pro- cedure to enforce illegal demands.^'' As to State Affairs — Attorney General, etc. — Individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threatened and are about to commence proceedings, either corporate act in building a dyke, where by the channel had been narrowed, the swift current had been diverted from the usual course across the plaintiff's farm, and, as it is alleged, destroying the banks, washing away the soil and for all practical purposes as effectually depriving him of his property as if there had been a phys- ical taking." Hopkins v. Clemson x\gri- cultural College, 221 U. S. 636, 647, 55 L. Ed. 890, 31 S. Ct. 654. Same — Pleading — Jurisdiction. — The prayer for the removal of a dyke con- structed by a state college under state authority on state land may be stricken from the bill without affecting the juris- diction of the court to hear and determine the question whether the college, by building such dyke for its own proprie- tary and corporate purposes, is liable to an opposite riparian owner for damag- ing or taking his land without due process of law. (1911), Hopkins v. Clemson Agri- cultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654, reversing judgment (1907) 57 S. E. 551, 77 S. C. 12. Same — Inability to enforce judgment. — "As a matter of fact, the record indicates that besides the state's annual appropria- tion and the interest on securities held under the residuary clause of Dr. Clem- son's will, the College has other sources of income. It appears to own some land in fee simple. The charter authorizes it to receive bequests. So that if the Fort Hill place is not subject to levy and sale, it does not follow that the institution may not now or hereafter own property out of which a judgment in plaintiff's favor could be satisfied. Besides, we have no right to proceed on the theory that if, at the end of the litigation, plaintiff estali- lishes his right to damages, the judgment would not be paid. These suggestions, though made in a plea to the jurisdiction, afford no reason why the College should be granted immunity from suit, when it is claimed that, in violation of the con- stitution, it has taken private property for its corporate purposes without com- pensation." Hopkins v. Clemson Agricul- tural College, 221 U. S. 636, 648, 55 L. Ed. 890, 31 S. Ct. 654. 680-5a. Remedy by injunction — Enjoin- ing civil and criminal proceedings. — Phil- adelphia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340, citing In re Saw- yer, 124 U. S. 200, 210, 31 L. Ed. 402, 8 S. Ct. 482; Harkrader v. Wadley, 172 U. S. 148, 170, 43 L. Ed. 399, 19 S. Ct. 119; Fitts V. McGhee, 172 U. S. 516, 531, 43 L. Ed. 535, 19 S. Ct. 269. 680-5b. Same — Distinction as to pro- tection of property rights. — Philadelphia Co. V. Stimson. 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340, citing Davis, etc., Mfg. Co. V. Los Angeles, 189 U. S. 207, 218, 47 L. Ed. 782, 23 S. Ct. 498; Dobbins v. Los Angeles, 195 U. S. 223, 241, 49 L. Ed. 1G9, 25 S. Ct. 18; Ex parte Young, 209 U. S. 123, 162, 52 L. Ed. 714, 28 S. Ct. 441; West- ern Union Tel. Co. v. Andrews, 216 U. S. 165, 54 L. Ed. 430, 30 S. Ct. 286. 531 680 DUB PROCESS OF LAW. Vol. V of a civil or criminal nature, to enforce against parties affected an unconstitu- tional act, violating the federal constitution, may be enjoined by a federal court of equity from such action. ^'^ Where the state official, instead of directly inter- fering with tangible property, is about to commence suits which have for their object the enforcement of an act which violates the federal constitution, to the great and irreparable injury of the complainants, he is seeking the same justifica- tion from the authority of the state as in other cases. The sovereignty of the state is, in reality, no more involved in one case than in the other. The state can not, in either case, impart to the official immunity from responsibility to the su- preme authority of the United States. ^"^ Same — Same — State Officer Made Defendant Must Have Some Con- nection with Enforcement of Act. — In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitu- tional, it is plain that such officer must have some connection with the enforce- ment of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party. ^® The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists. -^^ As to Federal Officers; Suits against the United States. — If the conduct of the defendant constitutes an unwarrantable interference with property of the complainant, its resort to equity for protection is not to be defeated upon the ground that the suit is one against the United States. The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. In case of an injury threatened by his illegal action, the officer can not claim immunity from injunction process. ^^ 680-5C. Same; as to state affairs — At- torney general, etc.— Ex parte Young, 209 U. S. 123, 52 L., Ed. 714, 28 S. Ct. 441; Western Union Tel. Co. v. Andrews, 216 U. S. 165, 54 L. Ed. 430, 30 S. Ct. 286; Ludwig V. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. A federal court may enjoin the attorney general of a state, whose general duty is to enforce the state statutes, from pro- ceeding to enforce, against persons af- fected, a state statute which violates the federal constitution, such proceedings be- ing not prohibited by the provision of the federal constitution forbidding the main- tenance of actions against a state. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. The general discretion of the attorney general of a state, regarding the enforce- ment of the laws when and as he deems appropriate, is not interfered with by an injunction restraining him from taking any steps towards the enforcement of an unconstitutional enactment, to the injury of a complainant. Ex parte Young, 209 U. S. 123, 53 L. Ed. 714, 28 S. Ct. 441. 680-5d. Same — Same. — Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. 680-5e Same — Same — State officer made defendant must have some connection v/ith enforcement of act. — Ex parte Young. 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. 680-5f. Same — Same, same. — Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. 680-5g. Same — As to federal officers — Suits against the United States. — Phil- adelphia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340; The Flying Fish, 2 Cranch, 170, 2 L. Ed. 243; United States V. Lee, 106 U. S. 196, 221, 27 L. Ed. 171, 1 S. Ct. 240; Belknap v. Schild, 161 U. S. 10. 18. 40 L. Ed. 599, 16 S. Ct. 443; Tin- dal V. Wesley, 167 U. S. 204, 42 L. Ed. 137, 17 S. Ct. 770; Scranton v. Wheeler, 179 U. S. 141, 152, 45 L. Ed. 126, 21 S. Ct. 48. The exemption of the United States from suit does not preclude an action to prevent the secretary of war from caus- ing criminal proceedings to be instituted against a riparian owner because of the reclamation and occupation of his land outside prescribed harbor limits, if his rights of property were wrongfully in- vaded in fixing such limits. Philadelphia Co. V. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. One whose property rights have been invaded in fixing harbor lines may main- tain an action to restrain the secretary of war from causing threatened criminal proceedings to be instituted against him in accordance with the provisions of the Act of Congiess of March 3, 1899 (30 Stat, at L. 1121, 1151-1153, chap. 425, U. 532 ^'ol. V. DYING DECLARATIONS. 680-685 Immaterial Whether Officer Proceeds under Invalid Act, or Tran- scends Authority of Valid Act. — Where the officer is proceeding under an unconstitutional act, its invahdity suffices to show that he is without authority, and it is this absence of lawful power and his abase of auth.ority in imposing or enforcing, in the name of the state, unwarrantable exactions or restrictions, to the irreparable loss of the complainant, which is the basis of the decree. And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the warrant of the statute, is transcending its bounds, and thus unlawfully assuming to exercise the power of government against the individual owner, is guilty of an invasion of private property/''' DURESS. III. Effect of Duress, SZZ. A. On Contracts, 533. CROSS REFERENCES. See the title Duress, vol. 5, p. 682, and references there given. In addition, see post, Taxation; Undue Influence. A. On Contracts. III. Effect of Duress. -See note 8. DUTIES. — The terms duties, imposts, and excises are generally treated as embracing the indirect forms of taxation contemplated by the constitution.'' DUTIES AND IMPOSTS.— See post, Revenue Laws. DYING DECLARATIONS.— See the title Dying Declarations, vol. 5, p. 686, and references there given. S. Comp. Stat. 1901, pp. 3541, 3542, 3544), §§ 11, 12, 17, for undertaking the rec- lamation and occupation of land belong- ing to him beyond the prescribed harbor limits. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. See, also, ante, "Property Rights of Riparian Owners as Subservient to Right of Gov- ernment to Improve Navigability of Stream," VI, D, 2, b, (4), (q), (cc). 680-5h. Same — Immaterial whether of- ficer proceeds under invalid act, or transcends authority of valid act. — Ex parte Young, 209 U. S. 123, 159, 52 L. Ed. 714, 28 S. Ct. 441; Philadelphia Co. v. Stimson, 223 U. S- 605, 56 L. Ed. 570, 32 S. Ct. 340. 683-8. Effect of duress on contract. — Refusal by a purchaser in possession of personal property to pay for it to satisfy a mortgage lien on it, or release it, un- less the seller will execute a contract which, if persisted in, both parties under- stand will lead to an immediate fore- closure and the ruin of the seller, amounts to duress which will avoid the contract, ludgment, Snyder v. Stribling (1907), 89 P. 222, 18 Okl. 168, affirmed. Snyder v. Rosenbaum, 215 U. S. 261, 54 L. Ed. 186, 30 S. Ct. 73. 685-a. Duties, imposts and excise. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. See post, REVENUE LAWS. The words duties, imposts and excises, "were used comprehensively, to cover customs and excise duties imposed on im- portation, consumption, manufacture, and sale of certain coininodities, privileges, particular business transactions, voca- tions, occupations, and the like." Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342, quoting Chief Jus- tice Fuller in Thomas v. United States, 192 U. S. 363, 48 L. Ed. 481, 24 S. Ct. 305. Duties and imposts are terms com- monly applied to levies made by gov- ernments on the importation or expor- tation of commodities. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. "Although there have been from time to time intimations that there might be some tax which was not a direct tax nor included under the words 'duties, imposts, and excises,' such a tax ior more than one hundred years of national existence has as yet remained undiscovered." Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 533 693-694 EITHER. Vol. V. EASEMENTS. VI. Condemnation of Easements, 534. CROSS REFERENCES. See the title Easements, vol. 5, p. 690, and references there given. In addition, see post, Prlvate Ways. VI. Condemnation of Easements. An easement of access to a public county road is private property and the owner thereof is entitled to compensation upon its taking by the government for public purpose.--'^ The value of an easement is to be ascertained with reference to the dominant estate to which it is attached. --'' EBB AND FLOW.— See post, Navigabi^i; Waters. EDITION.— See note la. EIGHT-HOUR LAW.— See post. Labor. EITHER.— See note a. 693-22a. Condemnation of easement. — United States v. Grizzard, 219 U. S. 180, 55 L. Ed. 165, 31 S. Ct. 162. See, also, post, EMINENT DOMAIN. Condemnation of easements. — The same reasoning that allows a recovery for the taking of land, allows it for an ease- ment taken in the same manner. United States V. Welch, 217 U. S. 333, 54 E. Ed. 787, 30 S. Ct. 527. 693-22b. Ascertainment of value.— United States v. Welch, 217 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527. Compensation to be awarded for the taking of an easement of right of way to a public road includes the damage done to the property of the owner of the ease- ment to which it was incident. United States V. Grizzard, 219 U. S. 180, 55 L. Ed. 165, 31 S. Ct. 162. 693-la. Editions of paintings within meaning of copyright laws. — See Ameri- can Tobacco Co. v. Werckmeister, 207 U. S. 284, 52 L. Ed. 208, 28 S. Ct. 72. See. also, ante, COPYRIGHT, p. 377. 694-a. Either as meaning any. — The third section of the Act of March 2, -1901, c. 812, 31 Stat. 953, provides that "The jurisdiction of the district court of the United States for Porto Rico in civil cases shall, in addition to that conferred by the Act of April twelfth, nineteen hundred, extend to and embrace contro- versies where the parties, or either of them, are citizens of the United States, or citizens or subjects of a foreign State or States." It was contended that the word "parties" was not used collectively, meaning all of the litigants on the one side or the other, but was intended as if the word "litigants" had been used, and that the words "or either of them" meant "any of them," and that the jurisdiction conferred embraced all controversies in which any litigant on either side is a citi- zen of the United States or a subject of a foreign country. The construction con- tended for was out of harmony with a long line of decisions construing the ju- risdictional clauses in the various statutes dealing with the question of jurisdiction dependent upon diversity of citizenship. Cuebas v. Cuebas, 223 U. S. 376, 386, 56 L. Ed. 476, 32 S. Ct. 277. See ante, COURTS, p. 398. 534 Vol. V. ELECTIONS. 704-720 EJECTMENT. III. Title to Support the Action, 535. D. Evidences of Title, 535. 11. Mexican Land Grant, 535. VIII. Evidence, 535. B. Admissibility, 535. 3. Evidence to Show Title in Defendant, 535. CROSS REFERENCES. See the title Ejectment, vol. 5, p. 695, and references there given. III. Title to Support the Action. D. Evidences of Title — 11. Me^xican Land Grant. — A Mexican land grant will not support an action in ejectment where the evidence offered to identify the boundaries of such grant is insufficient to show that they included the land in dispute.-^ 2a VIII. Evidence. B. Admissibility — 3. Evidence to Show Title in Defendant. — See note 81. EJUSDEM GENERIS.— See post, Statutes. ELECTION OF REMEDIES. CROSS REFERENCES. See the title Election of Remedies, vol. 5, p. 719, and references there given. Inconsistency of Alternative Remedies. — The trustee in bankruptcy does not, by obtaining a judgment against the bankrupt for the proceeds of a transfer in fraud of creditors, make an election which prevents him from suing in equity to set aside such transfer.^^ ELECTIONS.— See the title Elections, vol. 5, p. 721, and references there given. As to oft'enses against the civil service laws by government employees' soliciting campaign contributions, see post. Public Officers. 704-32a. Mexican land grant. — Sena v. mate tendency to identify the precise lo- American Turquoise Co., 230 U. S. 497, cation of the tract occupied by him, al- 55 L. Ed. 559, 31 S. Ct. 488. though such evidence may tend to show 715-81. Precise location of land de- a mistake in the field notes of the survey rived from the United States. — The de- of the tract claimed by the plaintiff. Gra- fendant in ejectment for a tract of land ham v. Gill, 223 U. S. 643, 56 L. Ed. 586, derived from the United States under 32 S. Ct. 396. different surveys is not debarred by U. S. 720-5a. Inconsistency of alternative Rev. Stat., § 2396, U. S. Comp. Stat. 1901, remedies.— Thomas v. Sugarman, 218 U. p. 1473, from introducing evidence other S. 129, 54 L. Ed. 967, 30 S. Ct. 650. than the field notes, which has a legiti- 535 730-742 EMIGRATION. Vol. V. ELECTRICITY. CROSS REFERENCES. See cross references under Electricity, vol. 5, p. 730. In addition, see post, Negligence. Degree of Care Required. — A company supplying electricity for lighting purposes, and engaging with individuals to deliver a suitable current at their resi- dences and places of business, over its own system of wires and appliances, is bound to exercise such control over the subtle and perilous agency with which it is dealing, and to take such precautions in the maintenance and inspection of its wires and appliances, as are reasonably essential to prevent an excessive and dangerous current from passing from its supply wires to the service wires of its patrons."-* • ELEMENTS.— See post, Pati-nts. EMBARGO AND NONINTERCOURSE LAWS.— See the title Embargo AND NONINTERCOURSE LaWS, VOl. 5. p. 732. EMBEZZLEMENT. IL Who May Commit the Offense, 536. C. Clerk of Federal Court, 536. CROSS REFERENCES. See the title Embezzlement, vol. 5, p. 742, and references there given. In addition, as to misapplication of national bank funds, see ante, Banks and Banking, p. 184. As to dismissal of prosecution for embezzlement as bar to recovery of sum converted, see ante. Dismissal, Discontinuance and Non- suit, p. 466. n. Who May Commit the Offense. C. Clerk of Federal Court. — A clerk of a federal district court can not be charged w^ith embezzling the surplus fees and emoluments of his office until he refuses or fails to make his half-yearly return, or to pay over the surplus shown to exist by such return or the audit thereof, even if such surplus fees and emolu- ments can in any event be the subject of embezzlement.'*'^ EMERGENCY.— See post, Negligence. EMIGRATION.— See ante. Aliens, p. 18; Citizenship, p. 235; post, Nat- uralization. 730-74. Degree of care required. — S_an statutes relating to the embezzlement of Juan Light, etc., Co. v. Requena, 224 U.'S. "public money" or "money or property 89, 99, 56 L. Ed. 680, 32 S. Ct. 399. of the United States," but such fees and 742-4a. Clerk of federal court. — United emohiments are received by the clerk, States V. Mason, 218 U. S. 517, 51 L. Ed. not as moneys of property belonging to 1133, 31 S. Ct. 28. See ante, CLERKS OF the United States, but as the amount al- COURT, p. 241. lowed to him for his compensation and The duty of a clerk of a federal dis- office expenses under the statutes defin- trict court to pay over to the United ing his rights and duties, and, with re- States the surplus fees and emolun>ents spect to the amount payable when the of his office which his half-yearly return return is made, the clerk is not a trustee, or the audit thereof shows to exist over but a debtor. United States v. Mason, 218 and above the compensation and allow- U. S. 517, 54 L. Ed. 1133, 31 S. Ct. 28, ances authorized by law to be retained affirming judgment (C. C.) 177 F. 552. by him is not governed by the federal 536 Vol. V. BMIXEXT DOMAIN. EMINENT DOMAIN. I. Definitions, 538. II. Origin and Nature of Power, 538. V. Who May Exercise Power, 538. A. Any Independent Government, 538. C. State, 538. Cy2. Territory, 538. VI. What Property May Be Taken, 539. A. Private Property, 539. 1. Property Rights in General, 539. 2. Lands, 539. 2y2. Charter. 539. 4. Contract, 539. 5. Patents, 539. 6. Chose in Action, 539. 7. Easement, 539. VII. Determination as to Necessity and Amount of Appropriation, 540. VIII. For What Purposes Property May Be Taken, 540. A. Private Purposes, 540. B. Public Purposes, 540. 1. Determination of Character of Use, 540. b. Power of Courts, 540. 2. \\'hat Constitutes a Public Purpose, 541. a. In General, 541. b. Railroads, 541. (1) In General, 541. (4) Spur Tracks and Terminal Facilities, 541. c. Streets and Highways, 541. h. Irrigation, 541. k. Alills and Alilldams, 542. t. Navigation, 542. u. Stock Raising. 542. IX. What Constitutes a Taking, 542. A. In General, 542. JYz. Use of Patent without License, 542. K. Damaging without Occupation or Appropriation, 542. 6. Requiring Changes in Bridge, 542. 9. Destruction of Easement, 542. X. Compensation, 543. B. Necessity of Compensation, 543. C. Necessity of Statutory Provisions for Compensation. 543. D. Persons Entitled to Compensation, 543. F>^. Making of Survey as a Condition Precedent to Payment of Compen- sation, 544. G. Measure and Elements of Compensation, 544. 23/2. Dependent upon Extent of Interest Acquired, 544. 537 750-754 EMINENT DOMAIN. Vol. V. 4. Where Part of Tract Is Taken, 544. Q>y2. Effect of Payment of Compensation, 545. XII. Condemnation Proceedings, 545. J. Conduct and Mode of Trial, 545. 2. Mode of Trial, 545. b. Jury Trial, 545. (1/^) Qualifications of Jurors, 545. (1^) Oath, 545. (3) Instructions, 546. (4) Verdict, 546. (5) Reassessment of Benefits. 546. P. Review of Proceedings, 547. CROSS REFERENCES. See the title Eminent Domain, vol. 5, p. /^46, and references there given. In addition, see ante. Constitutional, Law, p. 264 ; Due Process of Law, p. 475; post. Gas; Interstate and Foreign Commerce; Police Power. As to what constitutes a taking of property without due process of law, see ante. Due Process oe Law, p. 475. I. Definitions. "Vattel defines eminent domain to be the right to dispose, in case of necessity and for the public safety, of all the wealth of the country."^^ II. Origin and Nature of Power. See note 3. V. Who May Exercise Power. A. Any Independent Government. — Essential to Existence of Inde- pendent State. — The right of appropriating private property to a public use is a power which is absolutely essential to the existence of an independent state.^-*^ 0. State.— See note 19. 0-2 . Territory. — When the United States as an independent sovereign cre- ates a territorial government with legislative authority, subject only to the limi- tation of the creating act, it grants to this new dependent government the power of eminent domain unless it clearly appears that it was withheld. ^^^ When the congress of the federal government passed the ordinance of 1787 for the gov- ernment of the territory northwest of the Ohio River, it by implication gave to the government of the territory the power of eminent domain and the require- 750-2a. Defined. — Cincinnati v. Louis- the compliance with the provisions of the ville, etc., R. Co., 223 U. S. 390, 56 L. Ed. statute, any railroad company owning or 481, 32 S. Ct. 267. operating a railroad wholly or partially 750-3. Origin and nature. — "This right within the state, might use and occupy of appropriating private property to a for an elevated track, any portion of any public use is one of the powers vital to public ground lying within the limits the public welfare of every self-governing of municipality and dedicated to the community. It is a power which this public for use as a public ground, corn- court has described as an 'incident to mon, landing, wharf or for any other sovereignty,' a power which 'belongs to purpose except streets, houses and public every independent government.' " Cincin- roads, is not repugnant to art. 1, § 10, nati V. Louisville, etc., R. Co., 223 U. S. Const., of the United States, forbidding any 390, 404, 56 L. Ed. 481, 32 S. Ct. 267. state to pass any law impairing the obli- 752-12a. Independent state. — Cincin- gation of the contract. Cincinnati v. Louis- nati V. Louisville, etc., R. Co., 223 U. S. ville, etc., R. Co., 223 U. S. 390, 56 L Ed- 390, 56 L. Ed. 481, 32 S. Ct. 267. 481, 32 S. Ct. 267. 754-19. Does not impair contracts. — 754-19a. Territory. — Cincinnati v. Louis- Section 3283-a, Rev. Stat, of Ohio which ville, etc., R. Co., 223 U. S. 390, 56 L. Ed. provides among other things that upon 481, 32 S. Ct. 267. 538 Vol. V. EMINENT DOMAIN. 754-759 ment contained in the ordinance that compensation be made where private prop- erty was taken for pubHc use was not intended to abrogate or restrict this power. ^^"^ And such ordinance does not affect or abridge the power of the states subsequently admitted in that territory to exercise this right.^^"^ VI. What Property May Be Taken. A. Private Property — 1. Property Rights in General. — Tangible and in- tangible property are both subject to the power of eminent domain. ^^"^ 2. Lands. — See note 34. 2 Yi. Charter. — A charter is subject to the power of eminent domain, the same as any other property.'^ ^'^ 4. Contract. — See note 43. 5. Patents. — A patent in common with other private property is subject to the right of eminent domain.'*-^'' 6. Chose in Action. — A chose in action being property of an intangible na- ture may be acquired by the state under the power of eminent domain.-*-^'' 7. Easement. — An easement is property and therefore subject to the power of eminent doinain.'*^'^ 754-19b. Territory — Northwestern terri- tory. — Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. Article 2 of the Ordinance of 1787 for the government of the northwest terri- tory which provided "That no man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should public exi- gencies make it necessary for the com- mon preservation to take any person's property, or to demand his particular services, a full compensation shall be made for the same," is not a grant of power but a limitation upon the power of eminent domain which is assumed to ex- ist. Cincinnati z'. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. 754-19C. Effect of subsequently created states. — Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. The legislative power of the state of Ohio was not restricted in any way by the provisions of the 2nd article of Ordi- nances of 1787, after its admission to the Union, and it has every power of eminent domain which 'pertains to other states. From thus limited by its own constitution, a state should never be presumed to sur- render the power of eminent domain be- cause like the taxing power, the whole community have an interest in preserving it undiminished. Cincinnati v. Louisville, etc., R. Co.. 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. "But the assumption that the power of eminent domain possessed by the North- west Territory in 1787 was limited as claimed is untenable. The clause referred to assumes the existence of a general power of eminent domain in the Govern- ment, and provides that when exerted there must be full compensation for the property taken or the services required. That this is so is apparent not only from the language of the clause, but from a general consideration of the purpose and object of the congressional act in which the article appears. The ordinance of 1787 was a law providing for the government of the territory of the United States northwest of the River Ohio. It provided for the appointment of a governor and secretary and for the appointment 'of judges and the organization of courts with common-law jurisdiction. To the governor and judges was granted legisla- tive power to adopt and publish such laws of the original States as should seem to be adapted to the conditions, which were to be and remain in force unless dis- approved by congress. Authority to elect a legislature was conferred when there should be five thousand inhabitants." Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 403, 56 L. Ed. 481, 32 S. Ct. 267. 757-33a. Tangible and intangible prop- erty. — Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. 757-34. Lands of private owners. — Cin- cinnati V. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S- Ct. 267. 757-35a. Charter. — Cincinnati v. Louis- ville, etc., R. Co., 223 U. S. 390. 56 L. Ed. 481, 32 S. Ct. 367. 759-43. Contract. — Cincinnati v. Louis- ville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. 759-43a. Patent. — Crozier v. Krupp, 224 U. S. 290, 56 L. Ed. 771, 32 S. Ct. 488. 759-43b. Chose in action. — Cincinnati V. Louisville, etc., R. Co.. 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. 759-43C. Easement.— United States v. Welch, 317 U. S. 333, 54 L. Ed. 787, 30 S. 539 762-764 EMINENT DOMAIN. Vol. V. VII. Determination as to Necessity and Amount of Appropriation. See note 61. VIII. For What Purposes Property May Be Taken. A. Private Purposes. — See note 62. An appropriation can not be com- pelled by the court in condemnation proceedings to take more land than is nec- essary for public use."-'' B. Public Purposes — 1. Determination of Character of Use — b. Pozver of Courts. — The one and only principle in which all courts seem to agree is that the nature of the uses, whether public or private, is ultimately a judicial ques- tion.*^-"' And in determining this question the courts will be governed by the public necessities of the different localities in 'which the question arises,*^^'' and where the statutes of a state permit no appropriation except for public use and a court of that state has rendered a general judgment of condemnation, it will on appeal to the federal courts be assumed that the property was appropriated for a public use.*^^'' And no case is recalled where the supreme court of the United Ct. 537; United States v. Grizzard, 219 U. S. 180, 55 L. Ed. 165, 31 S. Ct. 162. See ante, EASEMENTS, p. 534. "A private right of way is an easement and is land. We perceive no reason why it should not be held to be acquired by the United States as incident to the fee for which it admits that it must pay." United States V. Welch, 317 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527. 762-61. A public "exigency" exists, for the "common preservation," when the legislature declares that for a bona fide public purpose there should be a right of way for a common carrier across a par- ticular piece of property. The uses to which § 3283, Rev. Stat, of Ohio, author- izes a condemnation of a right of way are undeniable public and not private uses. When that is the case, "the pro- priety or expedience of the appropria- tion can not be called in question by any other authority." United States v. Jones, 109 U. S. 513, 519, 27 L. Ed. 1015, 3 S. Ct. 346; Cincinnati z'. Louisville, etc., R. Co., 233 U. S. 390, 406, 56 L. Ed. 481, 33 S. Ct. 367. 762-62. Private purposes. — "The courts of the states, whenever the question has been presented to them for decision, have, without exception, held that it is beyond the legislative power to take, against his will, the property of one and give it to another for what the court deems private uses, even though full compensation for the taking be required." Hairston v. Dan- ville, etc., R. Co., 308 U. S. 598, 606, 53 L. Ed. 637, 28 S. Ct. 331. "The plaintiflf in error, however, in- sists that the record in this case, which includes all the evidence, shows, unmis- takably, that the taking was for private uses and that the claim by the railway company, that the spur track was de- signed in part for public uses, is no better than a colorable pretense. We assume that, if the condemnation was for private uses, it is forbidden by the fourteenth amendment. Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403, 41 L. Ed. 489; Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 112, 161, 41 L. Ed. 369; Madison- ville Tract. Co. v. Saint Bernard Min. Co., 196 U. S. 239, 251, 49 L. Ed. 463; Clark V. Nash, 198 U. S. 361, 49 L. Ed. 1085; Strickley v. Highland, etc., Min. Co., 300 U. S. 527, 50 L. Ed. 581." Hairs- ton v. Danville, etc., R. Co., 308 U. S. 598, 607, 53 L. Ed. 637, 38 S. Ct. 331. 762-62a. Only land necessary. — Win- slow 7'. Baltimore, etc., R. Co., 208 U. S. 59, 53 L. Ed. 388, 28 S. Ct. 190. A railroad company will not be re- quired by the court in condemnation pro- ceedings to take property for which it finds no public use, and where it is plain that the property is not needed. (1906) Winslow v. Baltimore & O. R. Co., 28 App. D. C. 136, judgment affirmed. Win- slow V. Baltimore, etc., R. Co., 308 U. S. 59, 53 L. Ed. 388, 38 S. Ct. 190. 764-64a. Power of courts. — Hairston v. Danville, etc., R. Co., 208 U. S. 598, 606, 52 L. Ed. 637, 28 S. Ct. 331. 764-64b. By what governed. — Hairston V. Danville, etc., R. Co., 308 U. S. 598, 53 L. Ed. 637, 38 S. Ct. 331. The determination of what is a public use by the courts has been influenced in the diflferent states by considerations touching the resources, the capacity of the soil, the relative importance of in- dustries to the general public welfare, and the long-established methods and habits of the people. In all these respects con- ditions vary so much in the states and territories of the union that different re- sults might well be expected. Hairston v. Danville, etc., R. Co., 308 U. S. 598, 606, 53 L. Ed. 637, 38 S. Ct. 331. 764-64C. Hairston v. Danville, etc., R. Co., 308 U. S. 598, 606, 52 L. Ed. 637, 38 S. Ct. 331. "We must not be understood as saying that cases may not arise where this court would decline to follow the state courts 540 Vol. V EMINENT DOMAIN. 764-766 States had condemned, as a violation of the fourteenth amendment, a taking up- held by the state court as a taking for public uses in conformity with its laws.*^^** 2. What Constitutes a Public Purpose — a. In General. — "When we come to inquire what are public uses for which the right of compulsory taking may be employed, and what are private uses for which the right is forbidden, we find no agreement, either in reasoning or conclusion. "'^^'' b. Railroads — (1) In General. — See note 67. (4) Spur Tracks and Terminal Facilities. — Railroads may acquire land for the construction of spur tracks and terminal facilities, as they are necessary to the successful operation of the road and are uses of a public nature.*^^^ c. Streets and Highzmys.—Ste note 71. h. Irrigation.- — See note 78. in their determination of the uses for which land could be taken by the right of eminent domain. The cases cited, how- ever, show how greatly we have deferred to the opinions of the state courts on this subject, which so closely concerns the welfare of their people. We have found nothing in the federal constitution which prevents the condemnation by one person for his individual use of a right of way over the land of another for the construction of an irrigation ditch; of a right of way over the land of another for an aerial bucket line; or of the right to flow the land of another by the erection of a dam. It remains for the future to disclose what cases, if any, of taking for uses, which the state constitution, law, and court approve will be held to be for- bidden by the fourteenth amendment to the constitution of the United States." Hairston v. Danville, etc., R. Co., 208 U. S. 598, 607, 52 L. Ed. 637, 28 S. Ct. 331. "The condemnation of land in this case has been held by the courts of Virginia to be authorized by the constitution and laws of that state, and we have no right to review that aspect of the decision. The law of Virginia permits no exercise of the right of eminent domain except for public uses. Fallsburg Power Co. :'. Alexander, 101 Virginia, 98; Dice z'. Sherman, 59 S. E. Rep. 388. Therefore, it must be assumed that this taking was held to be for public uses, although there was no specific finding of the fact, but only a general judgment of condemna- tion." Hairston v. Danville, etc., R. Co., 208 U. S. 598, 605, 52 L. Ed. 637, 28 S. Ct. 331. 764-64d. Hairston v. Danville, etc., R. Co., 208 U. S. 598, 607, 52 L. Ed. 637, 28 S. Ct. .331. 764-65a. What are public uses. — Hair- ston V. Danville, etc., R. Co., 208 U. S. 598, 606, 52 L. Ed. 637, 28 S. Ct. 331. 764-67. Railroads. — Winslow v. Balti- more, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. 765-69a. Spur tracks, etc. — Hairston v. Danville, etc., R. Co.. 208 U. S. 598, 52 L. Ed. 637, 28 S. Ct. 331. The condemnation of land by a railroad company for a spur track will not be held to be for a private use, and therefore for- Indden by the United States Const., 14th Amend., where the state courts, in efifect, have held that the use was public, on evidence tending to show that the spur track was designed, in part, for the stor- age of cars while loading and unloading, and to relieve the congestion of business, although the motive which dictated its location over the land in question was to reach a private industry, which contrib- uted to the cost. Hairston v. Danville, etc., R. Co., 208 U. S. 598, 52 L. Ed. 637, L^8 S. Ct. 331. 765-71. Streets and highways. — The right of a railroad company to condemn and for the relocation of .a highway crossed by its tracks, given by Rev. St. §§ 646, 647, is not taken away by the acts of congress relating to the elimination of grade crossings and providing for a union station in this district (31 Stat. 767, c. 353, 31 Stat. 775, c. 354, and 32 Stat. 909, c. 856). (1906) V/inslow v. Baltimore & O. R. Co., 28 App. D. C. 126, judgment affirmed. Winslow t'. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. 766-78. Irrigation. — Hairston v. Danville, etc., R. Co., 208 U. S. 598, 52 L. Ed. 637, 28 S. Ct. 331. Acts 1895, p. 21, c. 21 of Texas (Rev. St. 1895, tit. 60, c. 2), authorizes the or- ganization of corporations for the con- struction of reservoirs, ditches, etc., and the furnishing of water "to all persons entitled to the same" for irrigation and other purposes, to make contracts for the sale of permanent water rights, to lease, to rent, and to otherwise dispose of water, and provides that all persons pos- sessing land adjacent to any ditch shall have a right of water for any of the pur- poses mentioned at just prices, and that, if any shortage occurs, the distribution of water shall be pro rata. Held, that the purposes for which the act authorizes the taking of private property are public in character, judgment (1905), 86 S. W. :i, 98 Tex. 494, 107 Am. St. Rep. 640, af- 541 767-773 EMINENT DOMAIN. Vol. V. k. Mills and Milldams. — See note 83. t. Navigation. — In one case the supreme court of the United States affirmed without report a case from the highest court of a state which held that a cor- poration organized for purpose of navigation could exercise the power of emi- nent domain. ^^'^ Under the statutes of Texas a corporation organized for pur- poses of navigation has power to condemn land for the construction thereon of necessary works to carry on its business. ^^"^ u. Stock Raising. — Under the statutes of at least one jurisdiction, in a case affirmed by the United States supreme court without report, it has been held that a corporation organized for stock raising in connection with other public purposes may exercise the power of eminent domain. '^^'^ IX. What Constitutes a Taking. A. In General. — Where an officer or agent of the United States government appropriates private property for the use of the government such appropriation, when adopted by the United States, constitutes a taking under the power of emi- nent domain. ^-^"^ J|-. Use of Patent without License. — The appropriation by the United States of a license to use an invention patented by an individual who is not an employee of the United States, and was not so employed at the time that the patent was granted, constitutes a taking within the provision of the constitution, requiring due compensation to be made for private property if taken for public use.^*^ K. Damaging without Occupation or Appropriation — 6. Requiring Changes in Bridge. — Changes in Bridge. — See note 13. 9. Destruction of Easement. — The destruction of an easement which re- sults from the appropriation of property for public purposes constitutes a taking firmed. Borden z'. Trespalacios, etc., Irrig. Co., 204 U. S. 667, 51 L. Ed. 671, 27 S. Ct. 785. 767-83. Milling purposes. — Under a statute of Texas it has been held that a corporation organized for milling pur- poses has power to condemn private land for a right of way for its works. Borden v. Trespalacios, etc., Irrig. Co., 204 U. S. 667, 51 L. Ed. 671, 27 S. Ct. 785, af- firming 98 Tex. 494, 86 S. W. 11. 769-91a. Navigation.— Borden v. Tres- palacios, etc., Irrig. Co., 204 U. S. 667, 51 L. Ed. 671, 27 S. Ct. 785. 769-91b. In Texas.— Borden v. Tres- palacios, etc., Irrig. Co., 204 U. S. 667, 51 L. Ed. 671, 27 S. Ct. 785, affirming 98 Tex. 494, 86 S. W. 11. 769-91C. Stock raising. — Borden v. Trespalacios, etc., Irrig. Co., 204 U. S. 667, 51 L. Ed. 671, 27 S. Ct. 785. It has been held that under the statutes of Texas a corporation organized for stock raising and other purposes has the right to condemn land under the power of eminent domain. Borden v. Trespalacios, etc., Irrig. Co., 204 U. S. 667, 51 L. Ed. 671, 27 S. Ct. 785, affirming 98 Tex. 494, 86 S. W. 11. 769-93a. What amounts to a taking. — Crozier v. Krupp, 224 U. S. 290, 56 L. Ed. 771, 32 S. Ct. 488. Where an officer of the United States, in the exercise of his official duty, wrong- fully appropriates and converts private property to the use of the government, an adoption by the United States of the wrongful act of the officer is an adoption of the act when and as committed, and causes such act of the officer to be by virtue of the Act of June 25, 1910, 36 Stat. c. 423, p. 851, a rightful appropria- tion of property by the government for which compensation is provided. Crozier 7'. Krupp. 224 U. S. 290, 56 L. Ed. 771, 32 S. Ct. 488. 771-3a. Use of patent without license. — Crozier z'. Krupp, 224 U. S. 290, 56 L. Ed. 771, 32 S. Ct. 488. 773-13. Changes in bridges.— The action of the secretary of war in requiring changes in a bridge over an interstate waterway within a specified time, and after the parties have been heard, con- formably to Act March 3, 1899, c. 425, § 18, 30 Stat. 1153 (U. S. Comp. St. 1901, p. 3545), enacted to secure navigation against unreasonable obstruction, is not such a taking of private property for public use as must, under the federal constitution, be preceded by making, or sufficiently securing, compensation to the owners of the bridge. Judgment, United States v. Monongahela Bridge Co. (D. C. 1908), 160 F. 712, affirmed. Monongahela Bridge Co. V. United States. 216 U. S. 177. 54 E. Ed. 435, 30 S. Ct. 356. 542 Vol. V. EMINENT DOMAIN. 773-778 under the power of eminent domain. ^•^'^ Thus where a tract of land was flooded and as a result of that flooding a private right of way which gave access to the county road was destroyed, it was held that the destruction of the right of way constituted a taking.^^'' And where the county road was flooded and access by this road destroyed, this was also held to constitute a taking.^^'^ X. Compensation. B. Necessity of Compensation. — See note 28. An award of nominal dam- ages, where the circumstances warrant it, will not be held to deprive an owner of the just compensation to which he is entitled where private property is taken for public use.-'"' C. Necessity of Statutory Provisions for Compensation. — See note 30. D. Persons Entitled to Compensation. — See note 31. 773-15a. Destruction of easement. — United States v. Welch, 217 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527; United States V. Sewell, 217 U. S. 601, 54 L. Ed. 897, 30 S. Ct. 691; United States v. Griz- zard, 219 U. S. 180, 55 L. Ed. 165, 31 S. Ct. 162. 773-15b. Flooding tract of land.— United States v. Welch, 217 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527. A private right of way is an easement and is land, and if it were destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end. Miller V. Horton, 152 Mass. 540, 547; United States V. Welch, 217 U. S. 333, 339, 54 L. Ed. 787, 30 S. Ct. 527. 773-15C. Flooding county road and private way. — United States v. Grizzard, 219 U. S. 180, 55 L. Ed. 165, 31 S. Ct. 162. "But here there has been an actual taking by permanently flooding of a part of the farm of the defendants in error. An incident of that flooding is that a pub- lic road running across the flooded land is also flooded. But if this were not so, and the roadway had simply been cut ofif by the interposition of the flooded portion of the farm, the damage would be the same. Since, therefore, there has been a taking of a part of the owners' single tract and damage has resulted to the owners' remaining interest by reason of the relation between the taken part and that untaken, or by reason of the use of the taken land, the rule applied in the cases cited does not control this case." United States v. Grizzard, 219 U. S. 180, 183, 55 L. Ed. 165, 31 S. Ct. 162. 776-28. Necessity of compensation. — Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. "The constitutional limitation upon the power of eminent domain possessed by the United States is that 'private property shall not be taken for public use without just compensation.' " United States v. Grizzard. 219 U. S. 180. 184, 55 L. Ed. 165, 31 S. Ct. 162. The plain purpose of art. 2, of the or- dinance of 1787 for the government of the northwest territory was to limit the right of eminent domain by the require- ment that compensation should be made. Cincinnati z>. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 S. Ct. 267. 777-29a. Award of nominal damages. — Appleby v. Buffalo, 221 U. S. 524, 55 L. Ed. 838, 31 S. Ct. 699. An award of only nominal damages in proceedings to acquire by eminent do- main the fee to lands under the waters of a navigable stream does not take property for public use without compensation, and hence without due process of law, where substantially all the land abutting upon the stream on either side had already been conveyed away by the owner of the bed, and the proceedings were had under a statute providing adequate machinery for the ascertainment of compensation upon notice and hearing, and the record discloses no ruling of law preventing just compensation to the owner for the prop- erty taken. (1911) Appleby v. Buffalo, 221 U. S. 524, 55 L. Ed. 838, 31 S. Ct. 699, af- firming judgment (1907) In re City of Buffalo, 81 N. E. 954, 189 N. Y. 163, which reverses judgment (1906) 101 N. Y. S. 966. 777-30. Necessity of statutory pro- visions. — The suit in the court of claims for compensation provided for by the Act of June 25, 1910, "whenever an in- vention described in and covered by a patent of the United States shall here- after be used by the United States witli- out license of the owner thereof or law- ful right to use the same," answers all requirements as to compensation neces- sary to sustain the statute as an exercise of the power of eminent domain. Crozier V. Krupp, 224 U. S. 290, 56 L. Ed. 77L 32 S. Ct. 488. 778-31. Owner at time of taking. — A vendee of land upon wliich a railroad company, entitled to enter and build its road thereon, on condition that compen- sation be made, had constructed and put into operation its road without any ob- 543 780-782 EMINENT DOMAIN. Vol. V. F|. Making of Survey as a Condition Precedent to Payment of Com- pensation. — It has been held that a landowner may be required to furnish a survey definitely ascertaining the lands by metes and bounds before the appro- priator can be required to pay compensation.'"'"' G. Measure and Elements of Compensation — 2i4. Dependent upon Extent oe Interest Acquired. — Right of Property Owners to Combine Interests. — The owners of the fee of land taken for a public use, of an ease- ment, of way, light and air over such, and the holder of a mortgage on the same subject to the easement can not combine their interests and have the damages assessed in a lump sum, and estimated as if the land was the property of a single owner.-*^^ 4. Where Part of Tract Is Taken. — Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appro- priated, but the damage to the remainder resulting from that taking, embracing injury due to the use to which the part appropriated is to be devoted. ^"^ The jection from the then owner to its failure to comply with such condition as to com- pensation, takes the land subject to the burden of the right of way, and the right to exact payment therefor belongs to the owner at the time the company entered and constructed the road. Kindred r. Union Pac. R. Co., 225 U. S. 582, 56 L- Ed. 1216, 32 S. Ct. 780. "So, if the appellants be regarded as claiming under the Indian assignees, which is the most favorable view for the appellants, the case still falls within the general rule that where a railroad com- pany enters upon the land of another and constructs a railroad thereover under a statute entitling it so to do on condition that compensation be made to the owner, and the latter permits the road to be constructed and put into op- eration without a compliance with that condition, a subsequent vendee of the owner takes the land subject to the bur- den of the right of way, and the right to exact payment therefor from the rail- road company belongs to the owner at the time the company entered and constructed the road." Kindred v. Union Pac. R. Co., 225 U. S. 582, 56 L. Ed. 1216, 32 S. Ct. 780. 780-39a. Necessity for survey. — United States V. Sewell, 217 U. S. 601, 54 L. Ed. 897, 30 S. Ct. 691. It is ordered that before the govern- ment is required to pay for the land held to have been taken, plaintiffs below shall furnish a survey definitely ascer- taining the land by metes and bounds. United States v. Sewell, 217 U. S. 601, 54 L. Ed. 897, 30 S. Ct. 691. 780-40a. Right to combine interests. — Boston Chamber of Commerce zk Boston, 217 U. S. 189, 54 L. Ed. 725, 30 S. Ct. 459. The owners, respectively, of the fee of land taken for a public street and of an easement of way, light, and air over such land, and the holder of a mortgage on the same, subject to the easement, can not successfully claim to have been de- nied rights under Const. U. S. Amend. 14, because they were not permitted to pool their interests and have the damages assessed in a lump sum, and estimated as if the land was the sole property of one owner. ludgment (1907) 81 N. E. 244, 195 Mass. 338, affirmed. Boston Chamber of Commerce v. Boston, 217 U. S. 189, 54 L. Ed. 725, 30 S. Ct. 459. 782-50a. Taking part of tract. — United States V. Grizzard, 219 U. S. 180, 55 L. Ed. 165, 31 S. Ct. 162. Just compensation to the owner of a farm, a part of which is taken by the United States by permanently flooding it in improving navigation, as an incident to which a public highway crossing the flooded land is also flooded, demands an award of the damages to that part of the farm not taken by reason of the destruc- tion of the easement of access to the turnpike by way of the highway thus destroyed. United States v. Grizzard, 219 U. S. 180, 55 L. Ed. 165, 31 S. Ct. 162. The owner of a farm, a part of which is permanently flooded by a government dam, must be compensated, in addition to the value of the land taken, for the lessened value of the farm, caused by the consequent cutting off of a private way across the lands of others, which is the only practicable outlet from the farm to the country road. United States v. Welch, 217 U. S. 333, 54 L. Ed. 787, 30 S. Ct. 527; United States v. Sewell, 217 U. S. 601, 54 L. Ed. 897, 30 S. Ct. 691. "If, as the court below found, the flood- ing and taking of a part of the plaintiff's farm has depreciated the usefulness and value of the remainder the owner is not justly compensated by paying for only that actually appropriated, and leaving him uncompensated for the depreciation over benefits to that which remains. In recognition of this principle of justice it is required that regard be had to the effect 544 Vol. V. EMINENT DOMAIN. 782-791 just compensation guaranteed by the constitution requires that the recompense to the owner for the loss caused to him by the taking of a part of a parcel, or single tract of land, shall be measured by the loss resulting to him from the appropriation.^'"' G|. Effect of Payment of Compensation. — The payment by the appro- priation and the acceptance by the landowner of the award of the jury in con- demnation proceedings terminates the proceedings.^*^ XII. Condemnation Proceedings. J. Conduct and Mode of Trial— 2. A'Iode of Trial— b. Jury Trial— {l]^) Qualifications of Jurors. — Time of Making Objections to Qualifications of Jurors. — It has been held that under a statute of the District of Columbia providing for the assessment of benefits upon property appropriated for the ex- tension of a street, objection to the qualification of the jurors must be made be- fore they are accepted and sworn. ^^'^ (1 3/4) Oath. — Form of Oath. — Under a special statute providing for the condemnation of land in the District of Columbia, it has been held that a recita- tion in the record that the oath was administered according to the statute imports of the appropriation of a part of a single parcel upon the remaining interest of the owner, by taking into account both the benefits which accrue and the deprecia- tion which results to the remainder in its use and value." United States v. Grizzard, 219 U. S. 180, 184, 55 L. Ed. 165, 31 S. Ct. 162. "That the trial judge found the damages for the land and for the easement of ac- cess separately is not controlling. The determining factor was that the value of that part of the Grizzard farm not taken was fifteen hundred dollars, when the value of the entire place before the taking was three thousand dollars. A judgment for a less sum will not be that 'just com- pensation' to which the defendants are en- titled. The case is not different in legal consequence from what it would have beeji if a railway had been constructed across one's lawn, cutting the owner oflF from his road and outbuildings, etc. To say that such an owner would be compensated by paying him only for the narrow strip ac- tually appropriated, and leaving out of consideration the depreciation to the re- maining land by the manner in which the part was taken, and the use to which it was put, would be a travesty upon jus- tice." United States v. Grizzard, 219 U. S. 180, 185, 55 L. Ed. 165, 31 S. Ct. 162. 782-50b. Loss resulting from appropri- ation. — United States z\ Grizzard, 219 U. S. 18ft, 55 L. Ed. 165, 31 S. Ct. 162. ■ 785-68a. Effect of payment of compen- sation.— Winslow :■. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. A condemnation proceeding becomes functus officio where the owners of the condemned property, who originally in- sisted that the petition could not be main- 12 U S Enc— 35 545 tained, have accepted and received the sum awarded as the value of so much of their lands as was actually taken, and such owners therefore can not thereafter de- mand the condemnation of the remaining land, altiiough they have neither asked for nor received the sum awarded as the amount of the damage to the portion of their lands not actually taken. Judgment (1906), 28 App. D. C. 126, afi^rmed. Wins- low V. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. 791-95a. Time of making objections. — Columbia Heights, etc., Co. i\ Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. Objections that the court did not ex- amine the jurors in the proceeding under the Act of June 6, 1900, for the reassess- ment of benefits upon lots benefited by the extension of Eleventh Street, in the District of Columbia, as to whether they possessed the qualifications required by § 4 of that act, nor administer to them the oath required by statute, come too late when not made at the time the jurors were accepted and sworn. Columbia Heights, etc., Co. V. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. "As to the qualifications of the jurors: Primarily, they had been summoned, as shown by the order to the marshal and his return, as men having the statutory qualifications. The journal recites that the court 'accepted them as qualified.' No hint is found in this transcript that they were not qualified, or that they were guilty of any misconduct. Not having asked the court to examine them before accepting them, or to be then permitted to qualify them, it was not reversible er- ror to deny the privilege after they had been sworn and accepted." Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 556, 54 L. Ed. 877, 30 S. Ct. 581. 791 BMINBNT DOMAIN. Vol. V. that the statutory oath was followed as far as applicable.^^" Necessity That Counsel of Property Owner Be Present. — And under the same statute it has been held that the fact that counsel for the landowner was not present when the jurors were accepted and sworn did not invalidate the impaneling of the jury.^^"^ (3) Instructions. — An instruction one portion of which might give the jury a wrong rule for the assessment of benefits will not be held to be erroneous, where from a consideration of other parts of the instruction a correct rule is given in a way which makes the entire instruction clear.^'*^ (4) Verdict. — Confirmation of Verdict. — A statute of the District of Co- lumbia provided that the commissioners of the district would make application to the supreme court of the District of Columbia for the final ratification and confirmation of the verdicts of the jury for and in respect to the land condemned for the extension of Eleventh Street. Under this statute it was held that the supreme court could ratify the award and thus make it res judicata as to the amount of damages awarded without making it final as to the assessment of benefits.^"'' (5) Reassessment of Benefits. — Under statutes passed providing for the appropriation of land in the District of Columbia, if the court refused to confirm the award of the jury as to the assessment of benefits, a reassessment could be had without disturbing the award as to damages, ^'^'^ and such reassessment is 791-95b. Form of oath.— Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. Statutory form followed. — A journal entry in the proceeding under the Act of June 6, 1900, for the reassessment of ben- efits upon lots benefited by the extension of Eleventh Street, in the District of Col- umbia, which recites that the oath was administered to the jurors in accordance with the provisions of that statute, imports that the statutory oath was followed as far as applicable. Columbia Heights, etc., Co. V. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 791-95C. Presence of counsel. — Colum- bia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 556, 54 h. Ed. 877, 30 S. Ct. 581. The refusal of the court, after the ac- ceptance and swearing of the jury, in a proceeding under the Act of June 6, 1900, for the reassessment of benefits upon lots benefited by the extension of Eleventh Street, in the District of Columbia, to per- mit counsel to examine the jurors as to their qualification, is not reversible error, although counsel was not present at the time they were accepted and sworn, where, under the statute and the warning order, the parties interested were required to be present and "continue in attendance" until the matter was ended. Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 791-97a. Instructions. — Columbia Heights, etc., Co. V. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. An instruction in the proceeding under the Act of June 6, 1900, for the reassess- ment of benefits upon the lots benefited by the extension of Eleventh Street, in the District of Columbia, is not open to the objection that the jury was not limited to the benefits resulting immediately from the opening of the street, but might con- sider all enhancement which might come from subsequent improvement of or upon the street, where the court eliminated any doubt as to its meaning by other parts of its charge, in which the jury was told that the benefits must come immediately from the extension of the street, and not from any subsequent improvement. Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 791-97b. Confirmation of Verdict. — Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. Confirmation of that part of the verdict of the jurors in the proceeding under the Act of March 3, 1899, for the extension of Eleventh Street, in the District of Colum- bia, which award damages to the land not taken, from being left high above or be- low the grade, is not res judicata as to the benefits accruing to the same land, which the statute says shall not be less that 50 per cent of tiie damages sustained. Co- lumbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 791-97C. Reassessmen t. — Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. The Act of Congress of June 6, "1900, provided that the commissioners should' make application to the supreme court of the District of Columbia "for the final rat- ification and confirmation of the awards of the jury for and in respect to the land condemned for the extension of Eleventh Street," etc. And "in the event that the assessments for benefits levied by the jury 546 Vol. V. BMINBNT DOMAIN. 791-793 not a new proceeding which may be barred by the statute of Hmitations.'^"'' P. Review of Proceedings. — Waiver of Right to Review. — A landowner, by accepting the amount of an award in condemnation proceedings, waives his right to have the proceedings reviewed in an appellate court. ^'^'^ Questions Reviewable. — On an appeal from condemnation proceeding a landowner can not demand that the appropriator condemn the entire tract of land where a part only is needed and taken. ^^'^ In condemnation proceedings the power of a court to review the award of the jury is limited to plain errors of law, misconduct or grave error of fact indicating plain partiality or corruption,!^'' and it is not within the province of the United States supreme court on an appeal from such an award to weigh the evidence,!^'^ and where all the evidence in relation to said Eleventh Street shall for any reason be declared void, the said commissioners * * * are authorized and directed to make application to said court for a reassessment for such benefits under and in accordance with the provisions of this act." The procedure under this act differs in many particulars from that un- der the Act of 1898. Columbia Heights, etc., Co. V. Rudolph, 217 U. S. 547, 553, 51 L. Ed. 877, 30 S. Ct. 581. A reassessment of benefits under the Act of June 6, 1900 (31 Stat, at L. 668, chap. 809), upon lots benefited by the ex- tension of Eleventh Street, in the District of Columbia, is properly made, where the earlier Act of March 3, 1899 (30 Stat, at L. ]344, chap. 431), under which the original assessment of benefits was made, had been superseded by the new enactment at the time of the court's refusal to confirm such assessment, which refusal was assumed by the parties to amount to an annulment of the award of benefits by the first jury. Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 791-97d. Limitation. — Columbia Heights, etc., Co. V. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. A proceeding for the reassessment of benefits upon lots benefited by the exten- sion of Eleventh Street, in the District of Columbia, taken under the Act of June 6, 1900, superseding the Act of March 3, 1899, can not be regarded as a new action, for the purpose of applying the statute of limitations, but must be deemed a con- tinuance of the old proceeding. Colum- bia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 793-16a. Waiver.— Winslow v. Balti- more, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. Where, in proceedings bj'' a railroad company to condemn land for railroad purposes, and allowing it to relocate streets crossed by its tracks, a property owner whose land is taken accepts the award of the appraisers, he is estopped to appeal from the decree ratifying such award, or at least from appealing in re- spect to the land taken and the legality of such taking. (1906) Winslow v. Baltimore & O. R. Co., 28 App. D. C. 126, judgment affirmed Winslow v. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. By accepting the sum awarded in con- demnation proceedings as the value of that portion of their lands actually taken, the owners are estopped to insist that the petition was not maintainable. Judgment (1906) 28 App. D. C. 126, affirmed. Wins- low 7'. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. 793-16b. Questions reviewable. — Wins- low V. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. A property owner Can not, in a condem- nation proceeding, properly urge that a railroad company should have condemned the whole of his tract of land, instead of only a portion of it, on an appeal from so much of the decree confirming the award of the appraisers "as fails to require the petitioner to acquire the entire tract," where the proceedings were to acquire a part only. (1906) Winslow v. Baltimore & O. R. Co., 28 App. D. C. 126, judgment affirmed. Winslow v. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. 793-16C. Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 5. Ct. 581. The power of the court to review the award made by the jury appointed to view the premises and hear the testimony in the proceedmg under the Act of June 6, 1900, for the reassessment of benefits resulting from the extension of Eleventh Street, in the District of Columbia, is lim- ited to plain errors of law, misconduct, or grave error of fact, indicating plain par- tiality or corruption. Columbia Heights, etc., Co. V. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 793-16d. Authority to weigh evidence. — Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. "Why the court should be required to read, or hear read, 'in full,' a paper which was confessedly but the substance of the testimony taken before the jury, as 'ab- stracted by appellant from the testimony filed as an affidavit in the case,' we are at 547 793-795 EMPLOYEE. Vol. V. is not before the reviewing court nor any agreed statement of facts, it is impos- sible for the court to say whether the trial court erred in holding the award not unreasonable or so unjust as to require a new trial before another jury.^^^ EMPLOYEE.— See note 2. a loss to know. The power of the court to review the award by such a jury must in the verj' nature of the matter be limited to plain errors of law, misconduct or grave error of fact indicating plain partiality or corruption. The jury saw and heard the witnesses; the court did not. The jury went upon and viewed the premises; the ■court did not. The duty to review did not involve mere error in judgment as to the extent of enhancement in value, for the judgment of the jury manifestly rested upon much which could not be brought before the court. The jury was expected to exercise its own judgment, derived from personal knowledge from a view of the premises, as well as from the opinion evidence which might be brought before them. Shoemaker v. United States, 147 U. S. 282." Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 560, 54 L. Ed. 877, 30 S. Ct. 581. 793-16e. Columbia Heights, etc., Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. Whether or not the court below erred in holding the award of the jury ap- pointed under the Act of June 6, 1900, to reassess the benefits resulting from the extension of Eleventh Street, in the Dis- trict of Columbia, not unreasonable, nor so unjust as to require a new trial before another jury, is not open in the federal supreme court, where it has not all the evidence before it, and there is no agreed statement of facts. Columbia Heights, etc., Co. V. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 581. 795-2. Employees of general land of- fice. — By § 452 of the Revised Statutes "the officers, and clerks of the employees in the general land office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land." Held, that a special agent of the general land office was in every substantial sense an em- ployee, and was prevented from making a valid timber-culture entry. Prosser :•. Finn, 208 U. S. 67, 52 L. Ed. 392, 28 S. Ct. 225. See post. PUBLIC LANDS; PUBLIC OFFICERS. Section 452 of the Revised Statutes whereby, "the officers, clerks, and em- ployees in the general land office are pro- hibited from directly or indirectly pur- chasing or becoming interested in the purchase of any of the public land." em- braces the location of a mining claim by a mineral surveyor. Waskey v. Hammer. 223 U. S. 85, 92, 56 L. Ed. 359, 32 S. Ct. 187. In § 452 of the Revised Statutes whereby, "the officers, clerks, and em- ployees in the general land office are pro- hibited from directly or indirectly pur- chasing or becoming interested in the purchase of any of the public land," the words "officers, clerks and employees," taken collectively, are very comprehensive and easily embrace all persons holding positions under that office and participat- ing in the work assigned to it. The pur- pose of the prohibition is to guard against the temptations and partiality likely to attend efforts to acquire public lands, or interests therein, by persons so situated, and thereby to prevent abuse and inspire confidence in the administration of the public-land laws. Waskey v. Hammer, 223 U. S. 85, 92, 56 L. Ed. 359, 32 S. Ct. 187. Meaning of term employees and rail- road as used in act regulating hours of labor. — The first sentence (of the Act of March 4, 1907, regulating hours of labor of railway employees) states the applica- tion to carriers and employees who are "engaged in the transportation of pas- sengers or property by railroad" in the District of Columbia or the territories, or in interstate or foreign commerce. The definition in the second sentence, of what the terms "railroad" and employees shall include, qualify these words as pre- viously used, but do not remove the limi- tation as to the nature of the transporta- tion in which the employees must be engaged in order to come within the pro- visions of the statute. If the definition, in the last part of the sentence, of the words used in the first part be read in connection with the latter the meaning of the whole becomes obvious. The sec- tion, in effect, thus provides: "This act shall apply to any common carrier or carriers, their officers, agents, and em- ployees (meaning by 'employees' persons actually engaged in or connected with the movement of any train), engaged in the transportation of passengers or prop- erty by railroad (meaning by 'railroad' to include all bridges and ferries used or op- erated in connection with any railroad) in the District of Columbia or any terri- tor}^ * * * or from one State * * * to any other state." etc. In short, the employees to which the act refers, em- bracing the persons described in the last sentence of the section, are those en- 548 Vol. V. BOUAL PROTECTION OP LAW. 797-800 EMPLOYERS AND EMPLOYEES.— See post, Master and Servant. EMPLOYERS' LIABILITY ACT.— See post, Master and Servant. ENDORSEMENT.— See ante. Bills, Notes and Checks, p. 204. ENEMY.— See note 5. ENEMY PROPERTY.— See note 1. ENFORCE.— See note la. ENGROSSING. — See post, Monopolies and Corporate Trusts. ENJOIN. — See post. Injunctions. ENTER— ENTRY.— See note 799-2. ENTIRETY, ESTATES BY.— See post, Husband and Wife; Joint Ten- ants AND Tenants in Common. ENTRYMEN.— See post. Public Lands. EQUAL— EQUALLY.— See note 800-2. EQUAL PROTECTION OP LAW.— See ante, Constitutional Law, p. 264. gaged in the transportation of passengers or property by railroad in the district, territorial, interstate or foreign commerce defined; and the railroad, including bridges and ferries, is the railroad by means of which the defined commerce is conducted. Baltimore, etc., R. Co. v. In- terstate Commerce Comm., 221 U. S. 612, 617, 5.5 L. Ed. 878, 31 S. Ct. 621. See post, INTERSTATE AND FOREIGN COMMERCE. Interstate commerce. — As to employees as used in acts relating to interstate com- merce, see post. INTERSTATE AND FOREIGN COMMERCE. 797-5. Enemy's country. — Under the recognized rules governing the conduct of a war between two nations, Cuba, be- ing a part of Spain, was enemy's country, and all persons, whatever their national- ity, who resided there were, pending the Spanish war. to be deemed enemies of the United States and of all its people. Turagua Iron Co. v. United States, 212 U. S. 297, 53 L. Ed. 520. 29 S. Ct. 385. See post. REVENUE LAWS: WAR. 798-1. Enemy — Enemy property. — "An American corporation, doing business in Cuba, was, during the war with Spain, to be deemed an enemy to the United States with respect of its property found and then used in that country, and such property could be regarded as enemy's property, liable to be seized and confis- cated by the United States in the prog- ress of the war then being prosecuted." Juragua Iron Co. v. United States, 212 U. S. 297, 306, 53 L. Ed. 520. 29 S. Ct. 385. See post, PRIZE. 798-la. Unenforceable contract. — "The laws of Mississippi make dealing in fu- tures a misdemeanor, and provide that contracts of that sort, made without in- tent to deliver the commodity or to pay the price, 'shall not be enforced l)y any court.' The words 'shall not be enforced by any court' are simply another, possibly less emphatic, way of saying that an ac- tion shall not be brought to enforce such contracts.'' Fauntleroy v. Lum, 210 U. S. 230, 234, 52 L. Ed. 1039. 28 S. Ct. 641. See post, GAMBLING CONTRACTS. 799-2. Right of entry. — "The rnere preference right obtained as the result of taking the steps enumerated in §§ 2348, 2349, Rev. Stat., including the filing of the declaratory statement, is, as described in § 2348, simply, 'a preference right of entry, under the preceding section, of the mine so opened and improved.' " United States V. Forrester, 211 U. S. 399, 403, 53 L. Ed. 245, 29 S. Ct. 132. See post, PUB- LIC LANDS. 800-2. Equal to. — A Te.xas statute im- posed a tax upon railroad corporations and other persons owning or controlling any line of railroad in this State "equal to one per cent, of their gross receipts." The court said: "We are of the opinion that the statute levying this tax does amount to an attempt to regulate com- merce among the states. The distinction between a tax equal to one per cent of gross receipts and a tax of one per cent of the same, seems to us nothing, ex- cept where the former phrase is the in- dex of an actual attempt to reach the property and to let the interstate traffic and the receipts from it alone. We find no such attempt or anything to qualify the plain inference from the statute taken by itself. On the contrary, we rather infer from the judgment of the state court and from the argument on behalf of the state that another tax on the property of the railroad is upon a valuation of that property taken as a going concern. This is merely an effort to reach the gross re- ceipts, not even disguised by the name of an occupation tax, and in no way helped by the words equal to." Galveston, etc., R. Co. V. Texas. 210 U. S. 217. 224. 52 L. Ed. 1031. 28 S. Ct. 638. See Flint v. Stone Tracy Co., 220 U. S. 107, 163, 55 L. Ed. 389. 31 S. Ct. 342. See. also, post, IN- TERSTATE AND FOREIGN COM- MERCE. 549 812-820 EQUITY. Vol. V. EQUITABLE DEFENSES.— See ante, Actions, p. 7; Bills, Notes and Checks, p. 204. EQUITABLE ESTATE.— See post, Trusts and Trustees. EQUITABLE ESTOPPEL.— See post, Estoppel. EQUITABLE RELIEF AGAINST JUDGMENT.— See post. Judgments and Decrees ; Libel and Slander. EQUITABLE SET-OFF. — See post. Set-Off, Recoupment and Counter- claim. EQUITY. III. Jurisdiction, 550. B. Office and Purpose, 550. 2. Adaptability of Equity Proceedings to Particular Cases, 550. D. Jurisdiction as Affected by Existence of Adequate Legal Remedy, 550. 2. Rule Construed and Applied, 550. b. Tests as to Existence of Adequate Legal Remedy within Meaning of Rule, 550. (3) Remedy at Law Must Be as Practical and Efficacious as in Equity, 550. H. Scope and Limitation of Jurisdiction, 55L L General Rules Determining Extent and Controlling Exercise, 551. b. Uncontrolled by State Legislation and Uniform Throughout the State, 55 L (2) Administration of Equitable Relief under State Stat- utes, 55L f. Power over Property beyond Territorial Jurisdiction, by Reason of Jurisdiction over Person, 55 L VIII. Pleading, 55 L B. Bill, 55L 2. Original Bill, 55 L b. Form, Requisites and Sufficiency, 551. (5) Prayer for Relief, 55 L (b) Effect of Prayer for General Relief, 55L 3. Supplemental Bills, 55 L CROSS REFERENCES. See the title Equity, vol. 5, p. 803, and references there given. III. Jurisdiction. B. Office and Purpose — 2. Adaptability of Equity Proceedings to Par- ticular Cases. — See note 13. D. Jurisdiction as Affected by Existence of Adequate Legal Remedy — 2. Rule Construed and Applied — b. Tests as to Existence of Adequate Legal Remedy zvithin Meaning of Ride — (3) Remedy at Law Must Be as Practical and Efficacious as in Equity. — See note Z7. 812-13. Looks through forms to sub- bert. 215 U. S. 546, 54 L. Ed. 321, 30 S. stance. — A court of equity is not con- Ct. 218. eluded in a suit in which fraud, oppres- 820-37. Must be as practical and effica- sion, and undue influence are charged by cious as remedy in equity. — The remedy what appears upon the face of the papers, at law of a railroad company to test the but may institute an inquiry into the real validity of a statute fixing rates for rail- facts of the transaction. Wagg v. Her- road transportation by disobeying the 550 Vol. V. EQUITY. 833-857 H. Scope and Limitation of Jurisdiction — 1. General Rules Deter- mining Extent and Controlling Exercise — b. Uncontrolled by State Legis- lation and Uniform Throughout the State — (2) Administration of Equitable Relief under State Statutes. — See note 90. f. Power over Property beyond Territorial Jurisdiction, by Reason of Juris- diction over Person. — See notes 17, 18. VIII. Pleading. B. Bill — 2. Original Bill — b. Form, Requisites and Sufficiency — (5) Prayer for Relief — (b) Effect of Prayer for General Relief. — See note 95. 3. Supplemental Bills. — See note 14. statute once and submitting to a criminal prosecution is not so adequate as to de- prive equity of jurisdiction, where sev- eral years might elapse before a final determination of the question, pending which observance of the statute, if finally found to be invalid, would result in tak- ing its property without due process of law, with no possibility of its recovery. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. The question of the validity, under the provision of the federal constitution for- bidding the taking of property without due process of law, of a state statute establishing rates for railroad transporta- tion which are alleged to be so low as to be confiscatory, is not, because of its complication, a proper one for investi- gation by a jury. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 2S S. Ct. 441. 833-90. Suits to quiet title. — The holder, through a patent from the United States, of the legal title to a lode min- ing claim, in possession, may maintain a suit in equity, in a federal circuit court sitting in Utah, without a prior adjudi- cation in an action at law of its legal title, to quiet title and to restrain defend- ants from further mining or removing ore from beneath the surface of suclv claim, in view of the provisions of Rev. St. Utah, § 3511, that an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim. Judg- ment, United States Min. Co. v. Law- son (1904) 134 F. 769, 67 C. C. A. 587, affirmed. Lawson v. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65. 28 S. Ct. 15. 839-17. Power to decree conveyance of land in another state. — Fall :■. Eastin, 215 U. S. 1, 54 L. Ed. 65. 30 S. Ct. 3. 839-18. Decree and conveyance there- under except by holder of title inop- erative beyond the jurisdiction. — A deed to land situated in Nebraska, made by a commissioner under a decree of the court of another state in an action of divorce, in which, in determining the equi- ties of the parties, conformably to the practice in that state, the land was set apart to the wife as her own separate property, need not be recognized in Ne- braska, under the full faith and credit clause of the federal constitution. Fall r. Eastin, 215 U. S. 1, 54 L. Ed. 65, 30 S. Ct. 3. 852-95. Grant of other relief than that particularly prayed for. — The United States, seeking to follow the illicit gams of its agent into the property or securi- ties into which they have gone, is en- titled, under a prayer for "other, further, and general relief," to a judgment, as for money had and received for its use, for any difference between the cost of the specific property recovered and the gains which it is unable to trace. Decree (1909) 172 F. 1, 96 C. C. A. 587, affirmed. United States v. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. 857-14. Supplemental bill. — Permitting the filing of a supplemental bill after the case has been remanded by an appellate court for the production of further evi- dence can not be deemed an abuse of the trial court's discretion, where the facts set forth in such bill grew out of and were connected with the same trans- action out of which the litigation arose, and were germane to the object of the suit, and where all the grounds of relief, even if not existing when the original bill was filed, were alleged to exist when the supplemental bill was tendered, es- pecially in view of the provisions of N. M. Code Civ. Proc. subsec. 87, that a party may be allowed, on motion, to make a supplemental complaint, answer, or reply alleging facts material to the cause, or praying for any other or diflferent relief, order, or judgment. Rio Grande, etc., Irrig. Co. v. United States, 215 U. S. 266, 54 t. Ed. 190, 30 S. Ct. 97. Defendants are chargeable with notice of an application to file a supplemental bill, where such bill was tendered when the court was open, leave to file was given in open court, and defendants' attorney was served with a copy on the day it was tendered and filed. Decree, United States V. Rio Grande Dam & Irrigation Co. (1906) 85 P. 393, 13 N. M. 386, affirmed. Rio Grande, etc., Irrig. Co. v. United States, 215 U. S. 266, 54 L. Ed. 190, 30 S. Ct. 97. 551 902 ESTATES OF DECEDENTS. Vol. V. EQUITY OF REDEMPTION.— See ante, Chattel Mortgages, p. 230; post, ^Mortgages and Deeds of Trust. EQUIVALENTS.— See post. Patents. ERROR, WRIT OF. — See ante, Appeal and Error, p. 34. ESCAPE. — See the title Escape, vol. 5, p. 893, and references there given. ESCHEAT. — As to escheat of bank deposits, see ante. Due Process oe Law. ESCROW. — See the title Escrow, vol. 5, p. 900. See, also, ante. Conditions, p. 248 ; Contracts, p. 373 ; post, Vendor and Purchaser. As to preference of securities deposited in bank and marked escrow, see ante. Bankruptcy, p. 168. ESPECIAL PRIVILEGES.— See note a. ESTATE. — See ante. Descent and Distribution, p. 463 ; post. Executors and Administrators ; Wills. As to community estate, see post, Husband and WiEE. ESTATES. — See the title Estates, vol. 5, p. 904, and references there given. ESTATES OF ABSENTEES. — See post, Executors and Administrators. ESTATES OF DECEDENTS. — See post. Executors and Administrators. 902-a. Especial privileges. — A contract giving perpetual succession to a corpora- tion and endowing it with a perpetual exemption from taxation as to all its property, real or personal, is an especial privilege. The agreement of the incor- porators to establish and maintain an in- stitution of learning would not take it out of a prohibition against granting especial privileges, and render it an equivalent for the contract obligations assumed. It cannot be seen how any other conclusion can be reached, in view of the fact that the very essence of such a contract is to endow the corporation as to its property forever with the privilege of being ex- empt from the operation and control of the essential governmental power of taxa- tion and thereafter to cause the corpora- tion and all its property, so far as that subject is concerned, to live under the law of the contract and not under the law of general taxation. Berryman v. Board, 222 U. S. 334, 351, 56 L. Ed. 225. 32 S. Ct. 147. See ante, CONSTITU- TIONAL LAW, p.. 264. The generic prohibition against grant- ing of especial privileges, in the Washing- ton Organic Act of ]\Iarch 2, 1867, can not be construed as intended to forbid merely the creation of such privileges as a legis- lative grant of an exclusive right to fer- ries, bridges, etc., even if it be conceded that such grants were a common form of territorial legislative abuse prior to the adoption of that statute, and were the generating cause of the insertion of this prohibition. Berryman r. Board, 222 L^. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. 553 Vol. V. ESTOPPEL. ESTOPPEL I. Definition and General Considerations, 554. C. Application, Operation and Effect, 554. 1. Parties for and against Whom Estoppel Arises, 554. a. Rule as to Alutuality or Reciprocality, 554. II. Estoppel by Record, 554. B. Legislative Records, 554. C. Judicial Records, Judgments and Decrees, 554. m. Estoppel by Deed, 554. C. Operation and Effect, 554. 3. Estoppel by Recitals and Averments, 554. c. Character of Deed, 554. (1) Bonds, 554. 5. Matters Precluded, 554. g. Official and Judicial Bonds, 554. IV. Equitable Estoppel or Estoppel in Pais, 554. C. \'ital or Primary Principle of Doctrine, 554. D. Elements, 554. 3. Fraudulent Purpose or Intent to Mislead, 554. 4. Knowledge of Facts or Gross Negligence, 554. b. Person Alleging Estoppel, 554. c. Parties Having Equal Knowledge of or Equal Means of Knowledge of the Fact, 554. 5. Reliance by Party Alleging Estoppel, Act Done or Omitted, Change of Position, 555. 6. Prejudice to Party Claiming Benefit of Estoppel, 555. E. Grovmds of Estoppel, 555. 5. Failure to Assert Title, Claim or Right, 555. a. To Real Estate, 555. (2) Permitting Sale or Expenditure, 555. (a) In General, 555. (b) Permitting Erection of Improvements, 555. bb. Inducing Belief That Compensation Will Be Accepted, 555. (bb) Public Works, 555. bbb. By Railroads, 555. 16. Taking Benefits, 555. -a. Accepting Benefits of Transaction or Proceeding, 555. (1) In General, 555. (2) Contracts, 555. 20. Inconsistent Acts, Conduct and Positions, 556. a. In General, 556. b. Inconsistent Positions in Judicial Proceedings, 556. 21. Tax Returns, 557. F. Operation and Effect, 557. 2. Parties for and against Whom Available, 557. d. Corporations, 557. (2) Municipal Corporations, Counties, etc., 557. e. Government, 557. 553 918-944 ESTOPPEL. Vol. V. CROSS REFERENCES. See the title Estoppel, vol. 5, p. 913, and references there given. In addition, see post, Laches; Municipal Corporations; Res Adjudicata. I. Definition and General Considerations. C. Application, Operation and Effect — 1. Parties for and against Whom Estoppel Arises — a. Rule as to Mutuality or Reciprocality. — Estoppel to be good must be mutual. ^*^^ II. Estoppel by Record. B. Legislative Records. — See note 28. C. Judicial Records, Judgments and Decrees. — See post, Res Ad- judicata. III. Estoppel by Deed. C. Operation and Effect — 3. Estoppel by Recitals and Averments — c. Character of Deed — (1) Bonds. — See note 53. Recitals in Municipal Bonds. — See post. Municipal, County, State and Federal Securities. 5. Matters Precluded — g. Official and Judicial Bonds. — See post, "Con- tracts," IV, E, 16, a, (2). IV. Equitable Estoppel or Estoppel in Pais. C. Vital or Primary Principle of Doctrine. — The principle of estoppel is well settled. It precludes a person from denying what he has said or the impli- cation from his silence or conduct upon which another has acted. ^^^ D. Elements — 3. Fraudulent Purpose or Inte^nt to Mislead. — There must, however, be some intended deception in the conduct or declarations, or such gross negligence as to amount to constructive fraud.^^^ 4. Knowledge oe Facts or Gross Negligence — b. Person Alleging Estop- pel. — In respect to the title to real property the party claiming to have been in- fluenced by the conduct or declarations must have not only been destitute of knowledge of the true state of the title, but also of any convenient and available means of acquiring knowledge.^'"'' c. Parties Having Equal Knozvledge of or Equal Means of Knowledge of the Fact. — See note 49. 918-lOa. Mutuality. — Bigelow v. Old 944-46a. Person alleging estoppel. — Dominion, etc., Min. Co., 225 U. S. Ill, Crary v. Dye, 208 U. S. 515, 521, 52 L. 121, 56 L. Ed. 1009, 32 S. Ct. 641. Ed. 595, 28 S. Ct. 360, following Brant 920-28. "In Kinkead v. United States, v. Virginia Coal, etc., Co., 93 U. S. 326, 150 U. S. 483, 497, 37 L. Ed. 1152, 1157, 14 23 L. Ed. 927. S. Ct. 172, 177, the court said it was 944-49. Knowledge or means of knowl- well settled 'that a mere recital in an edge equal. — Crary z'. Dye, 208 U. S. act, whether of fact or of law, is not con- 515, 521, 52 L. Ed. 595, 28 S. Ct. 360, elusive unless it be clear that the legis- following Brant v. Virginia Coal, etc., Co., lature intended that the recital should be 93 U. S. 326, 23 L. Ed. 927. accepted as a fact in the case.' " Black- Declarations by the judgment debtor lock V. United States, 208 U. S. 75, 52 L. subsequent to a judicial sale of his in- Ed. 396, 28 S. Ct. 228, 232. terest in a mining claim, showing his ac- 923-53. Bonds. — Hine v. Morse, 218 U. quiescence in such sale, will not estop S. 493, 54 L. Ed. 1123, 31 S. Ct. 37. See him from thereafter asserting the in- post. "Contracts," IV, E, 16, a, (2). validity of such sale as against persons 938-19a. Principle of doctrine. — Crary who leased the property from the sheriff V. Dye, 208 U. S. 515, 52 L. Ed. 595, 28 with an option to purchase, who had S. Ct. 360. equal means of information as to the in- 940-38a. Fraudulent purpose. — Crary validity of the sale, and whose action in V. Dye, 208 U. S. 515, 52 L. Ed. 595, 28 closing their option was not induced by S. Ct. 360, citing Brant v. Virginia Coal, such declarations. judgment, Dye v. etc., Co., 93 U. S. 326, 23 L. Ed. 927. and Crary (N. M. 1906), 85 P. 1038, 9 L. R. Hobbs V. McLean, 117 U. S. 567, 29 L. A. (N. S.) 1136, affirmed. Crary v. Dye, Ed. 940, 6 S. Ct. 870. 208 U. S. 515, 52 L. Ed. 595, 28 S. Ct. 360. 554 Vol. V. ESTOPPEL. 945-977 5. Reliance by Party Alleging Estoppel, Act Done or Omitted, Change OF Position. — The party making an estoppel must in fact act in reliance upon the acts or declarations of the person against whom the estoppel is invoked. ^^* 6. Prejudice to Party Claiming Benefit of Estoppel. — The person al- leging an estoppel must have been misled to his detriment by the acts or declara- tions of the person against whom the estoppel is invoked.^"'' E. Grounds of Estoppel — 5. Failure to Assert Title, Claim or Right — a. To Real Estate— {2) Pennitthig Sale or Expenditure — (a) In General. — See note 87. (b) Permitting Erection of Improvements — bb. Inducing Belief That Com- pensation Will Be Accepted — (bb) Public Works — bbb. By Railroads. — See note 96. 16. Taking Benefits — a. Accepting Benefits of Transaction or Proceeding — (1) In General. — Condemnation Proceedings. — The owner of land taken in condemnation proceedings for a part of his property by accepting the sum awarded for the land actually taken waives the right to insist that the petition was not maintainable, as the statute required the condemnation of his entire property. He can not ratify the condemnation by receiving the appraised value ■of the land condemned and then ask to have the condemnation set aside and an- nulled.*^-^ (2) Contracts. — Bonds, Official and Judicial. — See note 66. 945-51a. Reliance by party alleging es- toppel.— Crary v. Dye, 208 U. S. 515, 525, 52 L. Ed. 595. 28 S. Ct. 360. 946-57a. Prejudice to party invoking. —Crary v. Dye, 208 U. S. 515, 525, 52 L. Ed. 595, 28 S. Ct. 360. See ante, "Parties Having Equal Knowledge of or Equal Means of Knowledge of the Fact," IV, D, 4, c. 955-87. Hussey v. United States, 222 U. S. 88, 56 L. Ed. 106, 32 S. Ct. 33. Sale of widow's community by execu- tor of husband's will. — See post, EXEC- UTORS AND ADMINISTRATORS. 960-96. By railroads. — If a landowner, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with the statute requiring either payment by agreement or proceedings to condemn, remains inactive and permits it to go on and expend large sums in the work, he is estopped from maintaining either trespass or ejectment for the en- try, and will be regarded as having ac- quiesced therein, and will be restricted to a suit for damages. Donohue v. El Paso, etc., R. Co., 214 U. S. 499, 53 L. Ed. 1060, 29 S. Ct. 698. 975-62a. Condemnation proceedings. — Winslow z'. Baltimore, etc., R. Co., 208 U. S. 59, 52 L. Ed. 388, 28 S. Ct. 190. 977-66. Bond of trustee to sell infant's estate. — The validity of a decree for the sale of an infant's real estate for pur- poses of reinvestment, and of the order appointing a trustee to make the sale, and of the bond reciting the due ap- pointment of such trustee, executed to secure the faithful discharge by him of Jiis duties, is not open to question by one who voluntarily became a surety upon the bond, thereby enabling his principal to obtain the proceeds of the sale. Hine z: Morse, 218 U. S. 493, 54 L. Ed. 1123. 31 S. Ct. 37, reversing judgment, 31 App. D. C. 433. Having obtained the trust and confi- dence of the court by aid of the security afforded by the solemn obligation to faithfully execute the order of the court and to pay into the court the proceeds of the sale which he undertook to make, neither the trustee so appointed, nor the surety for his performance of the trust, are in a situation to deny the regularity of the transaction. The proceeds which the principal of the bond received are nei- ther the funds of the beneficial owners of the property, or, if the sale be in fact void so far as to confer no title, the pur- chaser in equity and justice must be protected before the money is disturbed. The benefit which the principal expected to secure, he has been enabled to enjoy through the voluntary execution of his bond by his surety. The bond recites his due appointment, and it would be inequitable and unjust to permit either the principal or his surety to deny the fact. Hine v. Morse, 218 U. S. 493, 510, 54 L. Ed. 1123, 31 S. Ct. 37. Bond of Indian agent. — "This rule of estoppel has been applied in many cases. It was applied in respect to the bond of an Indian agent. The surety upon the bond denied liability because the govern- ment did not produce the commission showing the appointment of his princi- pal. The court said: 'The bond upon which the suit was brought recites that he was appointed Indian agent and the 555 987-996 ESTOPPEL. Vol. V. 20. Inconsistent Acts, Conduct and Positions — a. In General. — See note 10. b. Inconsistent Positions in ludicial Proceedings. — See note 60. As to Whether Defense Involved in Action. — A plaintiff is estopped to urge that a defense which was excluded upon his objection was involved in the action and concluded by the judgment.*^^'^ obligors in the bond are therefore es- topped from denying it.' Bruce v. United States, 17 How. 437, 442, 15 L. Ed. 129." Hine v. Morse, 218 U. S- 493, 510, 54 L. Ed. 1123, 31 S. Ct. 37. Distiller's bond. — "The principal was applied to a distiller's bond where one of the defenses was that the bond was invalid. The court said: 'But we prefer to place our judgment upon the broader ground marked out by the adjudications of this court, to which we have referred. Every one is presumed to know the law. Ignorance standing alone can never be the basis of legal right. If a bond is lia- ble to the objection taken in this case and the parties are dissatisfied, the ob- jection should be made when the bond is presented for execution. If executed un- der constraint, the constraint will destroy it. But where it is voluntarily entered into and the principal enjoys the bene- fits which it is intended to secure and a breach occurs, it is then too late to raise the question of its validity. The parties are estopped from availing themselves of such a defense. In such cases there is neither injustice nor hardship in holding that the contract as made is the measure of the rights of the government and of the liability of the obligors.' " United States V. Hodson, 10 Wall. 395, 409, 19 L. Ed. 937; Hine v. Morse, 218 U. S. 493, 510, 54 L. Ed. 1123, 31 S. Ct. 37. Stay bond. — "It was applied in respect of a stay bond executed under a void act of legislation. 'Not to apply the prin- ciple of estoppel to the bond in this case would.' said the court, 'it seems to us, involve a mockery in judicial adminis- tration and a violation of the plainest principles of reason and justice.' Dan- iels V. Tearney, 102 U. S. 415, 422. 26 L. Ed. 187." Hine r. Morse, 218 U. S. 493, 511, 54 L. Ed. 1123. 31 S. Ct. 37. Applications by state courts. — "The opinions of the highest courts of the states are full of applications of the rule of estoppel. In Plowman v. Henderson, 59 Alabama, 559, the sureties upon the bond of an administrator were not per- mitted to show the illegality of his ap- pointment. To the same effect is White T'. Weatherbee, 126 Massachusetts, 450. The sureties upon the bond of a sheriff were held estopped to deny validity of his appointment or the regularity of his bond. Jones z'. Gallatin County. 78 Ken- tucky, 491. In People v. Norton, 9 N. Y. 176, the sureties upon the bond of a trustee appointed by a chancery court were held estopped to deny the validity of the order appointing him. In State i\ Anderson, 16 Lea (Tenn.), 321, 335, and United States v. Mauric, 2 Brock, 96, the rule is recognized and applied." Hine t'. Morse, 218 U. S. 493, 511, 54 L. Ed. 1123, 31 S. Ct. 37. 987-10. Inconsistent conduct of city of- ficial as to city's tide lands. — The fact that the mayor of a city, as a member of the state board of tide land commission- ers, participated in a survey by which certain lands were excluded from the city, and that the city by ordinances ap- proved the survey and maps in accord- ance therewith, all such acts being prior to a confirmation of the city's title to the land, did not estop the city from claiming the Tand. Judgment, United Land Ass'n z\ Pacific Imp. Co. (1902) 69 P. 1064, 139 Cal. 370, afiirmed. United Land Ass'n r. Abrahams, 208 U. S. 614, 52 L. Ed. 645, 28 S. Ct. 569. 996-60. As to equitable or legal charac- ter of claims. — Plaintiffs in an action at law, who were the defendants in an eq- uity cause involving the same subject matter, having as defense to that cause insisted that the defenses were not cog- nizable in equity, and prevailed in such' contention, are in conscience placed in a position where they can not by a change of attitude assert in the action of law that the claim of the complainants in the eq- uity cause when set up as a defense to the action at law is equitable in nature and thus deprive the defendants of aU means of defense in the action at law. Lutcher, etc.. Lumber Co. z'. Knight, 217 U. S. 257, 54 L. Ed. 757, 30 S. Ct. 505. Federal government. — The federal gov- ernment is not estopped to rely upon the five years' limitation prescribed by the Act of March 3, 1891 (26 Stat, at L. 1095-1102, chap. 561, U. S. Comp. Stat. 1901, pp. 1535, 1571), for constructing an irrigation canal or reservoir, by obtain- ing an injunction interfering with such construction, where, between the disso- lution of the preliminary injunction and the granting of the perpetual injunction, more than five years elapsed, during which the construction was not impeded or hindered. Rio Grande, etc.. Irrig. Co. V. United States. 215 L"^. S. 266. 54 L. Ed. 190. 30 S. Ct. 97. 996-60a. As to whether defense in- volved in action. — Kirven v. Virginia- Carolina Chemical Co. (1907) 58 S. E. 556 Vol. V. EVERY. 996-1003 21. Tax Returns. — The owners of real property are not estopped by their tax returns under oath, valuing such property at less than $5,CXX), from asserting that such property has that value, in order to sustain the jurisdiction of the Fed- eral Supreme Court of a writ of error to review a judgment of the Hawaiian supreme court in an action of ejectment.*''^'' F. Operation and Effect — 2. Parties for and against \\'hom Available — d. Corporations — (2) Municipal Corporations, Counties, etc. — The principles of right and justice, upon which the doctrine of estoppel in pais rest, are applica- ble to municipal corporations."-^'' Any positive acts (infra vires ) by municipal officers, which may have induced the action of the adverse party and where it would be inequitable to permit the corporation to stultify itself, by retracting what its officers had done, will work an estoppel."^*^ e. Government. — See ante, "Inconsistent Positions in Judicial Proceedings," IV, E, 20, b. ESTOPPEL BY RECORD.— See ante. Estoppel, p. 553. ESTOPPEL IN PAIS.— See ante. Estoppel, p. hSi. EVERY.— See note 1. 424, 77 S. C. 493, affirmed. Virginia- Carolina, etc., Co. V. Kirven, 215 U. S. 252, 54 L. Ed. 179, 30 S. Ct. 78. 996-60b. Tax returns.— Spreckles v. Brown. 212 U. S. 208, 53 L. Ed. 476, 29 S. Ct. 256. As to the value of the land in dispute, it sufficiently appears by affidavits in the record and in the court, in which also there is an attempt to explain the low val- uation in the tax returns. Red River Cattle Co. V. Xeedham, 137 U. S. 632, 635, 636, 34 L. Ed. 799-801, 11 S. Ct. 208. The tax returns, in any event, are not conclu- sive. Wilcox V. Consolidated Gas Co. (Jan. 4, 1909) [212 U. S. 19, 53 L. Ed. 382, 29 S. Gt. 192]. Spreckles v. Brown, 212 U. S. 208, 53 L. Ed. 476, 478, 29 S. Ct. 256. 1000-73a. Municipal corporations. — Beadles f. Sniyser. 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522; Louisville v. Cum- berland, etc.. Tel. Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. Inconsistent acts as to title to tide lands. — See ante, "Inconsistent Acts, Con- duct and Positions," IV, E, 20. Estoppel to deny transferability of street franchise. — Louisville z'. Cumber- land, etc., Tel. Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. 1000-73b. Beadles v. Smyser, 209 U. S. 393. 52 L. Ed. 849, 28 S. Ct. 522. A municipality can not assert the dor- mancy, under 2 Wilson's Okla. Stat. 1903, § 4635, of certain judgments against it for failure to issue execution thereon within five years, where, during most of that period, the municipality was carrying out its contract arrangement with its judg- ment creditors to pay such judgments in the order of their rendition, out of the judgment fund, the effect of which was to prevent the judgment creditors from taking such steps as the law permitted to collect their judgments by execution or mandamus. Beadles v. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522. "The principles of natural justice and fair dealing are alike applicable to mu- nicipal corporations as to individuals, and to permit the city to escape the payment of judgments whose validity is not other- wise questioned, for failure to issue exe- cution or sue out a writ of mandamus during the time when the action of the city officers was such as to prevent the exercise of the right, would be to permit the action of the representatives of the city, who have had the benefit of the contract during the time both parties were observing its obligations, to work a gross injustice upon the creditors hold- ing valid judgments against the munici- pality." Beadles v. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522. 1003-1. Every person. — "Words having universal scope, such as 'every contract in restraint of trade,' 'every person who shall monopolize,' etc., in the Anti-Trust Act of July 2, 1890, will be taken as a mat- ter of course to mean only every one sub- ject to such legislation, not all that the legislator subsequently may be able to catch. In the case of the present statute the improbability of the United States at- tempting to make acts done in Panama or Costa Rica criminal is obvious, yet the law begins by making criminal the acts for which it gives a right to sue. We think it entirely plain that what the de- fendant did in Panama or Costa Rica is not within the scope of the statute so far as the present suit is concerned." Ameri- can Banana Co. i'. United Fruit Co.« 213 U. S. 347, 357, 53 L. Ed. 826, 29 S. Ct. 511. See post, MONOPOLIES AND CORPO- RATE TRUSTS. 557 1011-1055 EXCEPTIONS AND OBJECTIONS. Vol. V. EVIDENCE. III. Relevancy, Competency and Admissibility, 558. A. The General Principles Stated, 558. 1. In General, 558. G. Motive and Intent, 558. V. Withdrawing and Striking Out Evidence, 558. B. Striking Out Evidence, 558. CROSS REFERENCES. See the title Evidence, vol. 5, p. 1004, and references there given. In addition, see ante, Conspiracy, p. 256; Constitutional Law, p. 264; Criminal Law, p. 434; Damages, p. 434; Documentary Evidence, p. 469; post, Expert and Opinion Evidence; Fraud and Deceit; Judicial Notice; Libel and Slander; Mines and Minerals; Parol Evidence; Perjury; Pub- lic Lands; Res Adjudicata; Wills. As to cure of error in trial by the subsequent introduction of evidence, see post. Trial. in. Relevancy, Competency and Admissibility. A. The General Principles Stated — 1. In General. — Exclusion of ma- terial evidence on behalf of the accused is reversible error, unless want of preju- dice is shown. ^'^'^ G. Motive and Intent. — See note 36. V. Withdrawing and Striking Out Evidence. B. Striking Out Evidence. — Where evidence, inadmissible without other evidence explaining it, has been admitted under the belief that the explanatory- evidence would also be offered, and the explanatory evidence is not offered, it should be struck out upon motion.^^* EXAMINATION OP WITNESSES.— See post. Grand Jury; Witnesses. EXCEPTIONS AND OBJECTIONS.— See ante, Appeal and Error, p. 34; post. Exceptions, Bill of, and Statement of Facts on Appeal. 1011-17a. Exclusion of material evi- L. Ed. 465, 29 S. Ct. 260, reversing 30 dence.— Judgment (1907) 30 App. D. C. App. D. C. 1. 1, reversed. Crawford v. United States, A letter from a witness, charging the 212 U. S. 183, 53 L. Ed. 465, 29 S. Ct. accused with having abstracted certain 260. See ante, APPEAL AND ERROR, correspondence from the files of a cor- p. 34. poration, admitted without objection, for 1033-36. Motive and intent. — Intent is the purpose of showing a suppression or the design, purpose, resolve, or determi- spoliation of evidence, should be struck nation in the mind of the accused; it can out on motion upon the withdrawal by rarely be proved by direct evidence, but the prosecution of its offer in evidence of must be ascertained by means of infer- the accused's answer to such letter. ences from the facts and circumstances Judgment (1907) 30 App. D. C. 1, re- developed by the proof. Bailey v. Ala- versed. Crawford v. United States, 212 bama, 219 U. S. 219, 55 L. Ed. 191, 31 S. U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260. Ct. 145. See, also, post, HOMICIDE. See, also, ante, DOCUMENTARY EVI- 1055-86a. Striking out evidence. — Craw- DENCE, p. 469. ford V. United States, 212 U. S. 183, 53 558 Vol. VI. EXCEPTIONS, BILL OF, ETC. 9-11 EXCEPTIONS, BILL OF, AND STATEMENT OF FACTS ON APPEAL III. Necessity for Bill of Exceptions or Statement of Facts, 559. A. Where the Errors Are Not Apparent on the Record, 559. 1. In General, 559. 2. Illustrative Cases, 559. • a. Miscellaneous Examples, 559. e. Evidence, 560. (1) In General, 560. B. Where the Errors Are Apparent on the Record, 560. 1. In General, 560. E Effect of Absence of Bill of Exceptions, Agreed Statement of Facts or Special Verdict, 560. 1. Affirmance, 560. a. In General, 560. IV. Form and Sufficiency, 560. C. Authentication, 560. 1. Signing, 560. a. Of Bill of Exceptions, 560. (3) Manner of Signing, 560. c. Of Statement of Facts on Appeal, 560. V. Scope and Contents of Bill, 560. A. In General, 560. E. The Evidence, 561. 5. How Much of the Evidence Should Be Incorporated, 561. b. Present Practice, 561. (1) In General, 561. VI. Settlement of Bill or Statement of Facts, 561. E. Time of Settlement, 561. 4. Settlement during or after the Term, 561. a. In General, 561. f. Removal of Causes from the District of Columbia, 561. VIII. Amendment or Contradiction of Bill, 561. A. Amendment, 561. 1. In General, 561. CROSS REFERENCES. See the title Exceptions, Bill of, and State:ment o^ Facts on Appe^al, vol. 6, p. 1, and references there given. III. Necessity for Bill of Exceptions or Statement of Facts. A. Where the Errors Are Not Apparent on the Record — 1. In Gene;rai,. — Contentions which relate to occurrences at the trial can not be considered on appeal where the record contains* no bill of exceptions. ^^'^ 2. Illustrative; Cases — a. Miscellaneous Examples. — Rulings. — Rulings of the court below on apphcation for continuances- can not be examined on appeal unless a proper bill of exceptions is taken.^s^ 9-17a. Necessity — Errors not apparent ll-25a. Ruling on application for con- of record. — United States v. United States tinuance.— Pickett v. United States, 216 Fidelity, etc., Co., 222 U. S. 283, 284, 56 U. S. 456, 461, 54 L. Ed. 566, 30 S. Ct. L. Ed. 200, 32 S. Ct. 101. 265. 559 14-41 EXCEPTIONS, BILL OF, ETC. Vol. VI. e. Evidence — (1) In General. — See note 14-48. B. Where the Errors Are Apparent on the Record— 1. In General,. a' bill of exceptions is not essential to a writ of error from the federal supreme court to a district court, presenting the sole question of the jurisdiction of the latter court, where it can add nothing to what is apparent on the face on the rec- F. Effect of Absence of Bill of Exceptions, Agreed Statement of Facts or Special Verdict — 1. Affirmance — a. In General. — See note 32-48. IV. Form and Sufficiency. C. Authentication— 1. Signing— a. Of BUI of Exceptions— (3) Manner of Signing. — See note 90. .... c. Of Statement of Facts on Appeal. — The findings of a territorial district court, having been adopted and affirmed by the supreme court of the territory, serve the purpose of the statement of facts required by the Act of April 7, 1874 (18 Stat, at L. 27, chap. 80), on appeal to the federal supreme court.^"^ V. Scope and Contents of Bill. A. In General. — The bill of exceptions on error to the supreme court of the territory of Hawaii should bring up only so much of the record as is necessary to a determination of the case on appeal. It should not bring up the entire case na 14-48. Evidence must be placed on rec- ord by bill of exceptions. — United States V. United States Fidelity, etc., Co., 222 U. S. 283, 284, 56 L. Ed. 200, 32 S- Ct. 101; Pickett v. United States, 216 U. S. 456. 54 L. Ed. 566, 30 S. Ct. 265. Papers or documents used at the hear- ing in the court below can not, in strict- ness, be examined on appeal or writ of error to the federal supreme court, un- less they are made part of the record by bill of exceptions or some other proper mode. Bassing v. Cady, 208 U. S. 386, 52 L. Ed. 540, 28 S. Ct. 392. 18-72a. Errors apparent of record. — Grant Shoe Co. v. Laird Co., 212 U. S. 445. 53 L. Ed. 591, 29 S. Ct. 332. 32-48. Rulings on award of arbitrator. —Whether or not the court below erred in holding the award of the jury ap- pointed under Act June 6, 1900, c. 809, 31 Stat. 665, to reassess the benefits result- ing from the extension of Eleventh Street, in the ^District of Columbia, not unreasonable, nor so unjust as to re- quire a new trial before another jury, is not open in the federal supreme court, where it has not all the evidence before it, and there is no agreed statement of facts. Columbia Heights, etc., Co. v. Ru- dolph, 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 587. 38-90. Signing bill by initials of judge. — A paper in the record on writ of error, styled "Exceptions to the Charge to Jury," initialed "J. B. McP., Trial Judge," and signed by the plaintiff, is not a bill of exceptions. United States v. United States Fidelity, etc., Co.. 222 U. S. 283, 56 L. Ed. 200, 32 S. Ct. 101, affirming judgment (C. C. A.) 186 F. 477, follow- mg Origet v. United States, 125 U. S. 240, 31 L. Ed. 743, 8 S. Ct. 846. 39-96a. Statement of facts on appeal from territorial courts. — The findings of a district court of a territory furnish a sufficient statement of the facts for the purposes of an appeal from the territo- rial supreme court, where the latter court made no express findings of fact, but en- tered a general judgment of affirmance, manifestly based upon the correctness of the findings of the trial court. Mon-. tezuma Canal Co. v. Smithville Canal Co., 218 U. S. 371, 54 L. Ed. 1074, 31 S. Ct. 67; Eagle Min., etc., Co. v. Hamilton, 218 U. S. 513, 54 L. Ed. 1131, 31 S. Ct. 27. 41-lla- Scope and contents — Hawaii — Under the construction given by the supreme court of Hawaii to the statutes of the territory (Rev. Laws of Hawaii, 1905, c. 123, p. 732, et seq.) a bill of ex-' ceptions, unlike a writ of error or an ap- peal, does not bring the entire case or its record to the federal supreme court. Exceptions and error are inherently pro- ceedings of different character. On ex- ceptions, various specific rulings, whether interlocutory or final, whether brought up immediately or only after final judg- ment, are made direct and independent subjects for review; only so much of the record is brought here as is necessary for passing upon the specific exceptions; the decision usually is that the excep- tions be sustained or overruled and that such further proceedings be had as the rulings on the exceptions call for. On error the final judgment alone is brought up, and specific rulings, whether excepted 560 Vol. \l. BXCBPTIOXS, BILL OF, ETC. 49-73 E. The Evidence— 5. How Much of the Evidence Should Be Incor- porated — b. Present Practice — (1) In General. — See note 63. VI. Settlement of Bill or Statement of Facts. E. Time of Settlement — 4. Settlement during or after the Term — a. In General. — Consent to the settlement of a bill of exceptions after the close of the term must be express ; it can not be implied from silence.--*'' f Removal of Causes from the District of Columbia. — See note 31. VIII. Amendment or Contradiction of Bill. A. Amendment— 1. In General.— Time of Allowance.— A bill of excep- tions may be amended to conform the record to the facts after the bond on ap- peal has been given and approved.*'*^ to or not, are considered only inciden- tally in passing upon the correctness of the final judgment; the entire record is brought up, and the judgment of the ap- pellate court is such as the facts and law warrant as shown by the entire case. Cotton V. Territory of Hawaii, 211 U. S. 162. 174, 53 L. Ed. 131, 29 S. Ct. 85. 49-63. Present practice as to incorpo- rating the evidence. — A general state- ment in a bill of exceptions in an action on a bond to secure performance of a building contract, that the plaintiff gave evidence by several witnesses that the buildings were not completed according to the plans and specifications, in the particulars set forth in the assignment of breaches of such contract, and that the value by reason of the omissions, struc- tural defects, and defective materials, was from $2,000 to $3,000 less on each build- ing than if they had been so completed, furnishes no basis for the assertion that there was no evidence of the amount of damage sustained from each of the breaches of the contract, but only of the total damage. Judgment (1906) 27 App. D. C. 210, afhrmed. Mercantile Trust Co. v. Hensey, 205 U. S. 298, 51 L. Ed. 811, 27 S. Ct. 535. The rule that a conviction will be re- versed where it plainly appears that there was no evidence whatever justifying such conviction, even though no request was made to instruct the jury on the whole evidence to return a verdict of not guilty, will not be applied where it is not certi- fied that the Ijill of exceptions contains the entire evidence, and the appellate court is not otherwise satisfied that it does, and it is recited in the bill of ex- ceptions that the plaintiff offered evi- dence during the trial sufficient to go to the jury, tending to prove each and every material allegation of the indictment. Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278^) 28 S. Ct. 163. 68-24a. Consent can not be implied 12 U S Enc— 36 561 from silence of counsel. — The silence of counsel for appellee when a proposed bill of exceptions was presented to the court after the close of the term, and after it had lost all judicial power over the record, does not show that the ap- pellee consented to the filing and allow- ance of the bill nunc pro tunc. (1910) Jennings v. Philadelphia, etc., R. Co., 218 U. S. 255, 54 L. Ed. 1031, 31 S. Ct. 1, af- firming judgment (1908) 31 App. D. C. 173. 68-31. Time of settlement under prac- tice in the district. — A bill of exceptions may not be allowed by the supreme court of the District of Columbia when not presented until after the close of the term at which the judgment sought to be reversed has become final, and an appeal has been allowed and perfected, although the 38 days allowed by common-law rule No. 55 of that court have not yet elapsed, since this rule is applicable only so long as the judgment terin is running, and does not operate to extend the power of the trial judge over the record beyond the term. (1910) Jennings v. Philadel- phia, etc., R. Co., 218 U. S. 255, 54 L, Ed. 1031, 31 S. Ct. 1, affirming judgment (1908) 31 App. D. C. 173. 73-64a. Amendment after bond has been given. — There is no error in amend- ing a bill of exceptions, after an appeal bond has been given and approved, so as to conform to the facts, by showing that the court stated when a physician appointed by the court in a negligent action to ascertain plaintiff's present con- dition was called to testify, that his ex- amination of the plaintiff had been made by consent, and that counsel had agreed that his evidence should be considered as correct, where it does not appear that such statement was unjustified, or that objection to it was made. Herencia v. Guzman, 219 U. S. 44. 55 L. Ed. 81, 31 S. Ct. 135. 79 EXECUTION OF WILLS. Vol. VI. EXCESSIVE DAMAGES.— See ante, Damages, p. 455; post, New Trials. EXCESSIVE TAXATION.— See post, Taxation. EXCHANGE, BILL OF.— See ante, Bills, Notks and Checks, p. 204. EXCHANGE OF PROPERTY.— See the title Exchange of Property, vol. 6, p. 75, and references there given. EXCHANGES. — See the title Exchanges, vol. 6, p. 77, and references there given. EXCISE.— See note 2. EXCISE TAX.— See post. Revenue Laws. EXCLUSIVE RIGHTS.— As to patents, see post, Patents. EXCUSABLE HOMICIDE.— See post. Homicide. EXECUTED CONTRACTS.— See ante, Contracts, p. 373. EXECUTED TRUSTS.— See post. Trusts and Trustees. EXECUTION AGAINST THE BODY AND ARREST IN CIVIL CASES.— See the title Execution against the Body and Arrest in Civil Cases, vol. 6, p. 80, and references there given. EXECUTION AND PROOF OF DOCUMENTS.— See ante. Best and Sec- ondary Evidence, p. 202; Documentary Evidence, p. 469; post, Handwrit- ing; Wills. EXECUTION OF WILLS.— See post, Wills. 79-2. Excise.— Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Income tax an excise and not a direct tax. — The corporation tax law of August 5, 1909, providing for a special excise tax with respect to carrying on or doing busi- ness by corporations, general stock busi- ness or associations organized for a profit and having a capital stock repre- sented by shares, and insurance compa- nies, may be described as an excise upon the particular privilege of doing business in a corporate capacity, that is, with the advantages which arise from corporate or quasi corporate organizations; or, when applied to insurance companies, for doing the business of such companies, the re- quirement to pay such taxes involves the exercise of privileges, and the element of absolute and unavoidable demand is lack- ing. If the business is not done in the manner prescribed in the statute, no tax is payable. The act does not impose di- rect taxation upon property solely be- cause of its ownership, but the tax is with- in the clause which congress is authorized to lay and collect under article 1, § 8, cl. 1, of the constitution, and described gen- erally as taxes, duties, imposts, and ex- cises, upon which the limitation is that they shall be uniform throughout the United States. It is not a direct tax, hence is not invalid because not apportioned among the several states according to population. Flint v. Stone Tracy Co., 220 U. S. 107, 150. 55 L. Ed. 389, 31 S. Ct. 342. See post, REVENUE LAWS. Tax on transfers of property. — The su- preme court accepted the decision of the New York court that a New York statute imposing a tax on the transfers of prop- erty "intended to take effect in possession or enjoyment at or after the death of grantor" is "not a property tax, but in the nature of an excise tax on the transfer of propertv." Keeney v. Comptroller, 222 U. S. 525, 56 L. Ed. 299, 32 S. Ct. 105. 562 Vol. VI. BXnCUTIONS. 110-115 EXECUTIONS. III. Property Subject to Execution, 563. P. Property Exempt from Execution, 563. VIII. Levy of Writ, 563. A^, Necessity for, 563. IX. Return of Writ, 563. A. Indorsement, 563. XI. Lien and Priorities, 563. A. Lien, 563. 2. Commencement and Duration of Lien, 563. B. Priorities, 563. 2. Between Executions and Other Liens, 563. CROSS REFERENCES. See the title Exe;cutioxs, vol. 6, p. 84, and references there given. III. Property Subject to Execution. P. Property Exempt from Execution. — As to wages of seamen, see post, Seamen. VIII. Levy of Writ. ~ A|. Necessity for. — Under laws of Illinois an actual levy of the writ is not necessary to create a lien upon the property of the debtor within the county, but delivery to the sheriff to be executed is sufficient. ^^ IX. Return of Writ. A. Indorsement. — See post, Judicial Sales. XI. Lien and Priorities. A. Lien — 2. Commencement and Duration oe Lien. — See note 34. B. Priorities — 2. Between Executions and Other Liens. — An execution lien is paramount to the rights in the property possessed by a vendor under a contract of conditional sale.^^^ 110-la. Necessity for levy. — Rock Is- 115-45a. Between execution and condi- land Plow Co. v. Reardon, 222 U. S. 354, tional sale.— The lien created in Illinois 56 L. Ed. 231, 32 S. Ct. 164. by the delivery to the sheriff of an execu- 113-34. Commencement and duration. — tion on a judgment on property held by Under Revised Stats, of Illinois, 1874, c. the judgment debtor under a contract of 77, par. 9, a writ of execution becomes a conditional sale is paramount to the rights valid lien upon the goods and chattels of of the conditional vendor. (1912) Rock the debtor upon its deliverance to the Island Plow Co. v. Reardon, 222 U. S. 354, sheriff or other proper officer to be exe- 56 L. Ed. 231, 32 S. Ct. 164. affirming de- cuted. Levy is not necessary. Rock Is- cree (1909) Reardon v. Rock Island Plow land Plow Co. v. Reardon, 222 U. S. 354, Co., 168 F. 654, 94 C. C. A. 118. 56 L. Ed. 231, 32 S. Ct. 164. 563 125 EXECUTORS AND ADMINISTRATORS. Vol. VI. EXECUTORS AND ADMINISTRATORS. II. Jurisdiction over Administration Generally, 564. IV. Appointment and Tenure of Office, 565. A. Appointment, 565. 4. Who May Be Executor or Administrator, 565. VI. Rights, Duties and Liabilities, 565. T. Sales, 565. ' U. Payment of Debts, 566. 5. What Constitute Debts of the Estate, 566. iy2. Services Rendered, 566. V. Distribution, 566. 4. Time of Distribution, 566. 9%. Benefit of Inventory, 566. 9^. Liability of Heirs after Division of Inheritance. 566. 11^. Proceedings for Distribution. 566. IX. Actions by and against Executors or administrators, 567. A. Actions by Executors or Administrators, 567. 1. Capacity to Sue, 567. a. General Statement, 567. •XI. Foreign Executors or Administrators, 567. C. Privity between Different Personal Representatives, 567. 1. Administrators, 567. F. Actions, 568. CROSS REFERENCES. See the title Executors and Administrators, vol. 6, p. 119, and references there given. In addition, see ante, Appeal and Error, p. 34; Attorney and Client, p. 158; Constitutional Law, p. 264; Courts, p. 398; Death by Wrongful Act, p. 456; Descent and Distribution, p. 463; Equity, p. 550; post. Fraud and De- ceit; Judgments and Decrees; Parties; Perpetuities; Res Adjudicata ; Trusts and Trustees ; Wills. As to conclusiveness of foreign judgment as to decedent's estates, see post, Foreign Judgments, Records and Judicial Proceedings. II. Jurisdiction over Administration Generally. See note 7. Jurisdiction Primarily in State Courts. — In this country the right to ad- minister property left by a foreigner within the jurisdiction of a state is primarily 125-7. Jurisdiction over administration. ecclesiastical, probate, orphans; surrogate — It is the duty of the sovereign to pro- or equity courts. The jurisdiction may be vide a tribunal, under whose direction the exercised exclusively in one, or divided just demands against an estate may be de- among two or more, as the sovereign shall termined and paid, the succession decreed, determine. But somewhere the power and the estate devolved to those who are must exist to decide finally as against the found to be entitled tc it. Sometimes this world all questions which arise in the duty is performed by conferring jurisdic- settlement of the succession. Tilt z'. Kel- tion upon a single court and sometimes sey, 207 U. S. 43, 55, 52 L. Ed. 95, 28 S. by dividing the jurisdiction among two or Ct. 1. three courts. The courts maj' be termed 564 \'ol. VI. EXECUTORS AND ADMINISTRATORS. 126-144 committed to state law. It seems to be so regulated in the state of California, by giving the administration of such property to the public administrator.^^^ IV. Appointment and Tenure of Office.- A, Appointm_ent— 4. Wiio May Wm Kxi-cutor or Administrator.— See notes 33, 130-35. VI. Rights, Duties and Liabilities. T. Sales.— See note 144-35. 126-8a. Jurisdiction in state courts. — Rocca V. Thompson, 223 U. S. 317, 56 L. Ed. 453, 33 S. Ct. 207. Federal courts without jurisdiction. — There is no federal law of probate or of the administration of estates. Rocca v. Thompson. 223 U. S. 317, 56 L. Ed. 453, 32 S. Ct. 207. See, also, ante, COURTS, p. 398. 130-33. Philippine Islands. — On the death of the wife, the husband, if surviv- ing, was entitled, under the Spanish law in force in the Philippine Islands, to settle the affairs of the community, and on his death his executor was the proper admin- istrator of the same. Enriquez v. Go- Tiongco, 220 U. S. 307, 55 L. Ed. 476, 31 S. Ct. 423. 130-35. Consular officers can not admin- ister estates. — The most-favored-nation clause in the Italian treaty of May 8, 1878 (20 Stat, at L. 732), does not give an Ital- ian consul general the right to adminis- ter the estate of an Italian citizen dying intestate in one of the United States, to the exclusion of the one authorized by the local law to administer the estate, because of the privilege conferred by the Argen- tine treaty of July 27, 1853 (10 Stat, at L. 1009), art. 9, upon the consular officers of the respective countries as to citizens dy- ing intestate, "to intervene in the posses- sion, administration, and judicial liquida- tion of the estate of the deceased, con- tormably with the laws of the country, for the benefit of the creditors and legal heirs," since this provision, if applicable, can not be construed as intended to super- sede the local law us to the administration of such estates. The term "intervene" contained in the treaty of July 27, 1853, can only have reference to the universally recognized right of a consul to tempora- rily possess the estate of citizens of his nation for the purpose of protecting and conserving the rights of those interested before it comes under the jurisdiction of the laws of the country for its administra- tion. The right to intervene in adminis- tration and judicial liquidation is for the same general purpose, and pre-supposes an administration or judicial liquidation instituted otherwise than by the consul, who is authorized to intervene. Rocca v. Thompson, 223 U. S. 317, 56 L. Ed. 453, 32 S. Ct. 207. Early instructions of secretaries of state, emphasizing the right and duty of consuls to administer upon the effects of citizens of the United States, dying in for- eign lands, must be read in the light of the statute of the United States, § 1709, U. S. Conip. Stat. 1901, p. 1170, which, while it recognizes the right of consuls and vice consuls to take possession of the personal estate left by any citizen of the United States who shall die within their consu- lates, leaving there no legal representative, partner, or trustee, to inventory the same, and to collect debts, provides in the fifth paragraph of the section that if, at any time before the transmission to the United States Treasury of the balance of the es- tate, the legal representative appears and demands his effects in the hands of the consul, they shall be delivered up, and he shall cease further proceedings, and the duties imposed are where "the laws of the country permit." Rocca v. Thompson, 223 U. S. 317, 56 L. Ed. 453, 456, 32 S. Ct. 207. The consular regulations of the United States tersely express the duty of a con- sul as to the conservation of the property of deceased countrymen, and declares that he has no right, as consular officer, apart from the provisions of treaty, local law, or usage, to administer the estate, or, in that character, to aid any other person in so administering it, without judicial au- thorization. Rocca V. Thompson, 223 U. S. 317, 56 L. Ed. 453, 32 S. Ct. 207. In the law of the Argentine Confedera- tion of 1865, as presented in the argument of this case, no right of administration is given to the consul of a foreign country. It is true, he may appoint an executor, which appointment it is provided is to be at once communicated to the testamen- tary judge. Rocca v. Thompson, 223 U. S. 317. 56 L. Ed. 453, 32 S. Ct. 207. There is nothing in this treaty undertak- ing to change the well-recognized rule be- tween states and nations which permits a country to first protect the rights of its own citizens in local property before per- mitting it to be taken out of the jurisdic- tion for administration in favor of those residing beyond their borders. Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 52 L. Ed. 625, 29 S. Ct. 337. See post, TREATIES. 144-35. Power to sell realty. — Authority to carry out an executory contract for the sale of testator's real property is conferred 565 158-165 EXECUTORS AND ADMINISTRATORS. Vol. VI. U. Payment of Debts — 5. What Constitute De^bts of the: Estate — i>4. Services Rendered. — Services in Aid of Winding Up Community Business.^ — Services rendered in aid of winding up the community business were a proper charge on the community estate, under P. I. Civ. Code 1889, art. 1064, even though rendered after the death of both husband and wife.^"^ V. Distribution. 4. Time of Distribution. — The time for distributing the estate of an absentee, and for barring actions relative to the property, prescribed by Rev. Laws Mass., c. 144, is not so arbitrary and unreasonable as to be wanting in due process of law, because the rights of the absentee are absokitely barred after one year from the appointment of a receiver, in the event that such appointment was not made within thirteen years from the date of the disappearance of the absentee, other- wise, after fourteen years from such disappearance.'''-*'' 9%. Benefit of Inventory. — Waiver of Benefit of Inventory. — There is no presumption that heirs waived the benefit of inventory on division of the in- heritance under the Porto Rico law.''^'' 9>2. Liability of Hfirs afi^er Division of Inheritance. — Personal Lia- bility of Heirs. — The liability of the succession after the inheritance has been divided is by virtue of Civ. Code Porto Rico, 1889, arts. 1003, 1023, 1084, at an end, and gives place to a personal liability of each heir for the whole debt to the. extent of the assets received by him if he has accepted with benefit of inventory, or, otherwise, in fuU.'^^'' 11^^. Proceedings for Distribution. — Notice of Distribution. — Sufficient notice and other safeguards to satisfy the constitutional guaranty of due process of law are afforded by the provisions of Rev. Laws Mass. c. 144, for the distri- bution of the estate of an absentee, where there is reasonably careful provision for notice by publication before the appointment of a receiver, and the whole pro- ceeding begins with a seizure by the sheriff of the property mentioned in the orig- inal petition. ^^^ Ten days' statutory notice of the time appointed for the settle- ment of the final account of an executor, and for action upon the petition for upon the executor by a will which invests waived the benefit of inventory, and hence him with full and complete authority over under Civ. Code Porto Rico, arts. 1003, the testator's estate, and empowers him 1023, 1084, was liable after the inheritance to sell the real property at public sale was divided for the entire debt of the after one month's notice, upon such terms succession. The efifect of such a waiver as he thinks proper. Stewart v. Griffith, was to make the heir personally liable 217 U. S. 323, 54 L. Ed. 782, 30 S. Ct. 528. without limit, as he was in the early law 158-37a. Service in aid of winding up of Rome, of England, and of France community business. — Enriquez v. Go- (Civil Code Porto Rico, 1889, art. 1084), Tiongco, 220 U. S. 307, 55 L- Ed. 476, 31 and there is no ground for presuming S. Ct. 423. that the heir accepted his share without A judgment against an executor and benefit of inventory, or is liable for any- general administrator administering the thing beyond the unascertained value of estates of both his deceased parents, for what he received. Whether he waived services rendered to both estates by the the benefit of inventory or not is a pure wish of all the heirs, in aid of winding up question of fact. Ubarri v. Laborde, 214 the community business, bound the com- U. S. 168, 53 L. Ed. 953, 29 S. Ct. 549; munity estate, under the Spanish law in Laborde v. Ubarri, 214 U. S. 173, 53 L. force in the Philippine Islands. Enriquez Ed. 955, 29 S. Ct. 552. V. Go-Tiongco, 220 U. S. 307, 55 L. Ed. 164-79b. Personal liability of heirs. — 476, 31 S. Ct. 423. Ubarri v. Laborde, 214 U. S. 168, 53 L. 164-74a. Distribution of estate of absen- Ed. 953, 29 S. Ct. 549; Laborde v. Ubarri, tees.— Blinn v. Nelson, 222 U. S. 1, 56 L. 214 U. S. 173, 53 L. Ed. 955, 29 S. Ct. 552. Ed. 65, 32 S. Ct. 1, affirming decree Nel- 165-81a. Notice of distribution, — (1911) son V. Blinn, 197 Mass. 279, 15 L. R. A. Blinn v. Nelson, 222 U. S. 1, 56 L. Ed. (N. S.) 651, 83 N. E. 889, 125 Am. St. Rep. 65, 32 S. Ct. 1, afiirming decree (1908), 364, 14 Ann. Cas. 147. Nelson v. Blinn, 197 Mass. 279, 83 N. E. 164-79a. Waiver of benefit of inventory. 889, 15 L. R. A. (N. S.) 651, 125 Am. St. —There is no presumption that an heir Rep. 364, 14 Ann. Cas. 147. 566 Vol. VI. EXECUTORS AND ADMINISTRATORS. 165-185 final distribution of the decedents' estate, is not wanting in due process of law as to a nonresident claimant.^^'' Proper Parties. — In a suit to set aside a family settlement, parties materially interested are necessary parties defendant. ^^<= IX. Actions by and against Executors or Administrators. A. Actions by Executors or Administrators— 1. Capacity to Sue— a. General Statement. — Suit for specific performance of contract for sale of land.9«^ XI. Foreign Executors or Administrators. C. Privity between Different Personal Representatives— 1. Adminis- trators. — See note 49. 165-81b. Ten days' statutory notice. — The claim that ten days' statutory notice of the time appointed for the settlement of the final account of an executor, and for action upon the petition for final dis- tribution of the decedent's estate, was so unreasonable as to be wanting in due process of law as to a nonresident claim- ant, was clearly unsubstantial and devoid of merit, and furnished no support for the contention that rights under the con- stitution of the United States had been violated. The distribution of the estate was but an incident of the proceeding prescribed by the laws of California in respect to the administration of an estate in the custody of one of its probate courts. Goodrich v. Ferris, 214 U. S. 71, 53 L. Ed. 914, 29 S. Ct. 580. See ante, DUE PROCESS OF LAW, p. 475. "It is elementary that probate proceed- ing by which jurisdiction of a probate court is asserted over the estate of a decedent for the purpose of administer- ing the same is in the nature of a pro- ceeding in rem, and is therefore one as to which all the world is charged with notice. And that the law of California conforms to this general and elementary rule beyond question." Goodrich v. Fer- ris, 214 U. S. 71, 53 L. Ed. 914, 29 vS. Ct. 580. 165-81C. Proper parties. — The .mother's estate and her children by a second mar- riage are necessary parties defendant to a bill which seeks to set aside for fraud a family settlement made between the mother and the children of the first marriage, to annul the title which ap- parently flowed therefrom, to avoid col- laterally decrees of the Porto Rican courts concerning the same, and to set aside, as simulated and fraudulent, the sales made in virtue of the title appar- ently vested by the settlement, where such bill, though alleging that the prop- erty transferred to the mother by such settlement was acquired by the husband by inheritance, contains no averment concerning the property allotted to the daughters which tends to rebut the legal presumption of community as to the prop- erty acquired during marriage, which the bill seeks to administer and distribute. Garzot v. Rubio, 209 U. S. 283, 52 L,. Ed. 794, 28 S. Ct. 548. 178-96a. Suit for specific performance of contract for sale of land. — An executor may maintain a suit for the specific per- formance of a contract for the sale of land, the property of the testator, under Md. Code 1888, art. 93, § 104, empowering an executor to prosecute any personal ac- tion whatever, whether in law or in equity, that the testator might have prose- cuted, except an action for slander, and § 81 of the same article, authorizing the executor of a person who shall have made sale of real estate, and has died before receiving the purchase money, or con- veying the same, to make a conveyance to the purchaser, provided he shall satisfy the court that such purchaser has paid the full amount of the purchase price. Stewart v. Grififith, 217 U. S. 323, 54 L. Ed. 782, 30 S. Ct. 528. See post, SPE- CIFIC PERFORMANCE. 185-49. Privity between administrators in different states. — Brown v. Fletcher's Estate, 210 U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702: Ingersoll v. Coram, 211 U. S. 335, 53 L. Ed. 208, 29 S. Ct. 92. There is no such relation between an executor and administrator with the will annexed, appointed in another state, as will make a decree against the latter binding upon the former or the estate in his possession. Judgment (1906), 109 N. W. 686, 146 Mich. 401, affirmed. Brown v. Fletcher's Estate, 210 U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702. A judgment against an ancillary admin- istrator in a suit by him to declare and enforce a lien on certain interests in the distributive shares of the property of a decedent is not a bar to a suit founded on the same cause of action, brought by an ancillary administrator of the estate in another jurisdiction. Decree, Coram V. Ingersoll (1906), 148 Fed. 169, 78 C. C. A. 303, reversed. Ingersoll v. Coram, 211 U. S. 335, 53 L. Ed. 208, 29 S. Ct. 92. A decree entered, after an order of revivor, against the administrator with 567 188-198 EXPERIMENTS IX EVIDEXCE. Vol. VL F. Actions. — See note 65. Suits Removed to Federal Courts. — A foreign administrator, who has brought an action in IlHnois to recover for the neghgent kilhng of his intestate, is not precluded from filing a plea to the jurisdiction of the federal circuit court, to which the action has been removed, by the proviso to Kurd's Rev. St. 111. 1905, c. 3, § 18, that no nonresident shall be appointed or act as administrator.^^^ EXECUTORY INTEREST.— See post, Remainders, Reversions and Exec- utory Interests. EXEMPLIFICATION. — See ante, Best and Secondary Evidence, p. 202; Documentary Evidence, p. 469. EXEMPTIONS. — See ante, Banks and Banking, p. 184; post, Homestead Exemptions; Licenses; Revenue Laws. As to exemption from capture, see post. Prize. As to exemption of seamen's wages from execution, etc., see post, Seamen. EXERCISE.— See note 2a. EXIGENCY.— See note a. EXONERATION. — See ante. Contribution and Exoneration, p. 375 ; post,. Principal and Surety. EXPATRIATION. — See ante. Citizenship, p. 235 ; post, Naturalization. EXPERIMENTS IN EVIDENCE.— See the title Experiments in Evidence. vol. 6, p. 199, and references there given. the will annexed of a nonresident, who had died pending suit, confirming an award in arbitration proceedings had in the suit under a rule of court, does not bind the nonresident executors and legatees, who did not appear and were not validly served with process, although the stipulation for submission to arbi- tration provided that the arbitration should continue in case of the death of either party, and that his successors and legal representatives should be bound by the final award. Brown v. Fletcher's Estate, 210 U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702. 188-65. Suits in District of Columbia.— An executor who could have maintained in Maryland, where the land lies, a suit for the specific performance of a con- tract for its sale, can, under D. C. Code, § 329 (31 Stat, at L. 1242, chap. 854), maintain the suit in the District of Co- lumbia if the defendant resides there. Stewart v. Griffith, 217 U. S. 323, 54 L. Ed. 782, 30 S. Ct. 528. 188-65a. Suits removed to federal courts.— Patch :■. Wabash R. Co., 207 U. -S. 277, 52 L. Ed. 204, 28 S. Ct. 80. 197-2a. Company with power to exer- cise powers and privileges of another company. — Incorporating a railway com- pany with power to exercise all the pow- ers and privileges conferred by an earlier act incorporating another railway com- pany does not confer upon the new cor- poration the immunit}'^ from taxation en- joyed by the earlier company under its charter. It is one thing to have authority to exercise all the "powers and privileges" of another company, and another thing to enjoy an exemption from taxation. The exercise of the "powers and privileges" of the company referred to was reasonably essential to the construction and operation of the independent railroad. Its immu- nity from taxation was not. Therefore, no immunity from taxation which did not then exist was conferred by the Georgia Act of January 21, 1852. authorizing the consolidation of the stocks of two railway companies under the name and style of one of such companies, which should con- tinue to exercise all the powers and priv- ileges conferred by existing law upon (he corporation of that name, and be under all the liabilities and restrictions imposed upon it. Wright v. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. See ante, CORPORATIONS, p. 381; post, TAXATION. 198-a. Public exigency. — A public ex- igency exists, for the "common preserva- tion," when the legislature declares that for a bona fide public purpose there should be a right of way for a common carrier across a particular piece of property. The uses to which § 32S3a, Rev. Stat, Ohio, authorizes a condemnation of a right of way are undeniably public and not private uses. When that is the case, "the propri- ety of expediency of the appropriation can not be called in question by any other authority." Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 406, 56 Ed. 481, 32 S. Ct. 267. See ante, EMINENT DOMAIN,. 568 Vol. VI. EXPLOSIONS AND EXPLOSIVES. 2 06-208 EXPERT AND OPINION EVIDENCE. I. Expert Evidence, 569. D. Examination of Expert \\'itnesses, 569. 4. x-\ssuming Facts Xot in Evidence, 569. II. Nonexpert Opinion, 569. B. Admissibility of Nonexpert Testimony, 569. 1. Opinion Deduced from Undisclosed Facts, 569. 5. Insanity, 569. CROSS REFERENCES. See the title Expert and Opixiox Evidexce, vol. 6, p. 200. and references there given. I. Expert Evidence. D. Examination of Expert Witnesses — 4. Assumixg Facts Xot ix Evi- dexce. — A witness can not testify as to values in answer to a question which as- sumes as a fact what there is no evidence to support. ^•''^ II. Nonexpert Opinion. B. Admissibility of Nonexpert Testimony — 1. Opixiox Deduced from UxDiscLOSED Facts. — See note i^i. 5. IxsAXiTY. — See note 45. EXPERT WITNESSES.— See ante. Expert axd Opixiox Evidexce, p. 569. EXPLOSIONS AND EXPLOSIVES.— See the references given under Explo- sioxs AXD ExpiosivES, vol. 6, p. 209. In addition, see post, Ships and Shipfix'g. As to liability of oil company to a consumer for explosion caused by kerosene, which had an admixture of gasoline, through the negligence of the oil company and which was supplied to the consumer through the agency of a retailer, see post, Negligexce. As to inspection of oils, see post, Ixspection Laws. As to 206-35a. Assuming facts not in evi- Trust Co., 213 U. S. 257, 53 L. Ed. 788, 29 dence.— Harten v. Loffler, 29 App. D. C. S. Ct. 420. 490, affirmed in Harten v. Loffler, 212 U. In no other way than this can the full S. 397, 53 L. Ed. 568, 29 S. Ct. 351. See. knowledge of an unprofessional witness also, ante. EVIDEXCE, p. 558. with regard to the issue be placed be- 207-38. Opinion deduced from undis- fore the jury, because ordinarily it is closed facts. — A statement that the prin- impossible for such witness to give an cipal chief of the Choctaw Nation ratified adequate description of all appearances an illegal sheriffs sale, giving no facts which to him have indicated sanity or upon which the alleged ratification was insanity. Such testimony has been well based, is a conclusion of law, and as such described as a compendious mode of as- is inadmissible in evidence. Decree certaining the result of the actual obser- (1905), 138 F. 394, 70 C. C. A. 534, af- vations of witnesses. Ordinarih', and firmed'. Walker v. McLoud, 204 U. S. perhaps necessaril3% the witness in testi- 302, 51 L. Ed. 495, 27 S. Ct. 293. fying to his opportunities for observation 208-45. Insanity. — A lay witness who has and his actual observation relates more had an adequate opportunity to observe or less fully the instances of his con- the speech and other conduct of a person versation or dealings with the person whose soundness or unsoundness of mind whose mental capacity is under consid- is in issue may, in addition to relating the eration, and it is, of course, cornpetent, significant instances of speech and con- either upon direct or cross-examination, duct, testify to his opinion as to mental to elicit those instances in detail. Turner capacity, formed at the time from such v. American, etc.. Trust Co., 213 U. S. observation. Decree (1907). 29 App. D. 257, 260, 53 L. Ed. 788, 29 S. Ct. 420. C. 460, affirmed. Turner v. American, etc., 569 210 EXTRA COMPENSATION. Vol. VI. power to prevent the sale of oils excepting those conforming to a certain stand- ard, see post, Police Power. As to power of states to regulate sale of gun- powder, see ante. Constitutional Law, p. 264; post, Interstate and Foreign Commerce; Police Power. EXPORTS AND IMPORTS.— See note 2. EX POST FACTO LAWS. — See ante, Constitutional Law, p. 264. EXPRESS COMPANIES.— See the title Express Companies, vol. 6, p. 212, and references there given. In addition, see ante, Carriers, p. 216; post. In- terstate AND Foreign Commerce; Taxation. EXPRESSIO UNIUS.— See post, -Statutes. EXPRESS MALICE.— See post, Homicide. EXPRESS TRUST. — See post. Trusts and Trustees. EXTENSION.— See post. Patents. EXTORTION. — See the title Extortion, vol. 6, p. 214, and references there given. EXTRA ALLOWANCE. — See ante. Army and Navy, p. 150; post, United States. EXTRA COMPENSATION.— See post. Public Officers. 210-2. Goods from foreign states. — States. The provision that the rates Article 8 of the Cuban Treaty of Decern- granted to Cuba shall continue "prefer- ber 17, 1903, provides that "'the rates of ential in respect to all like imports from duty herein granted by the United States other countries" does not relate to charges to the republic of Cuba are and shall con- on shipments between places under the tinue during the term of this convention same flag, but to duties laid on shipments preferential in respect to all like imports — on imports — from countries which are from other countries." This article refers foreign to the United States. Faber v. to imports — the correlative of exports. United States, 221 U. S. 649, 55 L. Ed. 897, This necessarily related to shipments from 31 S. Ct. 659. See post, REVENUE a country which was foreign to the United LAWS. 570 Vol. VI. EXTRADITION. 220 EXTRADITION. II. International, 571. D. Statutory Provisions, 571. 4. Complaint, 571. c. Requisites, 571. 5. Evidence, 572. c. Authentication Requirements of the Act of 1882, 571. d. Sufficiency of Evidence, 571. e. Presumptions as to Conduct of Trial, 573. E. Trial on Another Charge, 573. III. Interstate, 573. A. The Constitutional Provision, 573. 1. Nature of, 573. 3. Terms of, 573. , D. Extraditable Persons, 573. 2. Fugitives from Justice, 573. a. "Fugitive" Defined, 573. c. Actual Presence, 573. E. Powers and Duty of Governor, 574. 1. Governor Demanding Extradition of Fugitive, 574. 2. Governor of Whom Extradition of Fugitive Is Demanded, 574. a. In General, 574. b. Statutory Provisions, 574. f. Evidence before Governor, 574. (1) Questions of Law and Fact to Be Proved, 574. (2) Evidence of Fugitivity, 574. G. Habeas Corpus, 575. 1. Right of Accused to Invoke Aid, 575. 3. Review of Governor's Decision, 575. H. Procedure, 575. 1. The Indictment, 575. J. Extraditing Twice for Same OflFense, 576. IV. Trial on Another Charge, 576. A. In International Cases, 576. CROSS REFERENCES. See the title Extradition, vol. 6, p. 215, and references there given. II. International. D. Statutory Provisions — 4. Compi,aint — c. Requisites. — See note 18. 220-18. Requisites. — The general doc- technicality with which these proceed- trine in respect of extradition complaints ings were formerly conducted has given is well stated by Judge Coxe in Ex parte place to more liberal practice, the ob- Sternaman, 77 Fed. Rep. 595, 597, as fol- ject being to reach a correct decision lows: "The complaint should set forth upon the main question. Is there reason- clearly and briefly the ofifense charged. able cause to believe that a crime has It need not be drawn with the formal been committed? The complaint maj', in precision of an indictment. If it be suffi- some instances, be upon information and ciently explicit to inform the accused per- belief. The exigencies may be such that son of the precise nature of the charge the criminal may escape punishment un- against him, it is sufficient. The extreme less he is promptly apprehended by the 571 220 EXTRADITION. Vol. VL Complaint Sworn to upon Information and Belief. — A complaint sworn to upon information and belief is sufficient in proceedings for the extradition of a person to a foreign country, where it is supported by the testimony of witnesses who are stated to have deposed, and who therefore must be presumed to have been sworn. ^^^ 5. EvidKnce.— c. Authentication Requirements of the Act of 1882. — See note 21. d. Sufficiency of Evidence. — See note 22. Identity. — A finding that the identity of the prisoner with the person whose extradition to a foreign country is sought is made out can not be said to be er- representatives of the country whose law he has violated. From the very nature of the case, it may often happen that such representative can have no personal knowledge of the crime. If the offense be one of the treaty crimes, and if it be stated clearly and explicitly so that the accused knows exactly what the charge is, the complaint is sufficient to authorize the commissioner to act." Yordi v. Nolte, 215 U. S. 227, 2.30, 54 L. Ed. 170, 30 S. Ct. 90. Good faith to the demanding foreign government requires the surrender of the accused in extradition proceedings if there is presented, even in somewhat un- technical form, such reasonable ground to suppose him guilty of crime as to make it proper that he should be tried. Glucks- man v. Henkel, 221 U. S. 508, 55 L. Ed. 830, 31 S. Ct. 704. See, also. Pierce v. Creecy, 210 U. S. 387, 52 L. Ed. 1113, 28 S. Ct. 714. Necessity of attaching record of pro- ceedings before foreign court. — To give jurisdiction to a United States commis- sioner of a proceeding to extradite a fugitive from the justice of a foreign state, the record of proceedings before the foreign court, and the depositions of witnesses therein contained, upon which the extradition proceeding is based, need not be attached to the complaint, if they are in the custody and keeping of the one making the complaint, and the commis- sioner is possessed of the information which they contain, which is sufficient to satisfy him that the proceeding is based upon real grounds. Judgment, Ex parte Yordi (D. C), 166 F. 921, affirmed. Yordi V. Nolte, 215 U. S. 227, 54 L. Ed. 170, 30 S. Ct. 90. The irregularity, if any, in making a complaint in extradition proceedings on information and belief, without attaching thereto the record of the foreign court which is the basis of the proceeding, is cured by the production at the hearing of such record, which is sufficient to justify the detention of the accused. Yordi V. Nolte, 215 U. S. 227, 54 L. Ed. 170, 30 S. Ct. 90. Variance. — A variance in proceedings for the extradition to a foreign country of a person charged with forgery and utter- ing forged paper, in that the complaint speaks of bills of exchange, while the evi- dence shows the forged instruments to have been promissory notes, is not fatal, where the instruments are sufficiently identified. Qlucksman v. Henkel, 221 U. S. 508, 55 L. Ed. 830, 31 S. Ct. 704. The effect of a variance between the complaint and the evidence in proceed- ings for the extradition of a person to a foreign country is to be decided on gen- eral principles, irrespective of the law of the state where the proceedings are had. Qlucksman v. Henkel. 221 U. S. 508, 55 L. Ed. 830. 31 S. Ct. 704. 220-18a. Complaint sworn to upon in- formation and belief sufficient. — Qlucks- man V. Henkel, 221 U. S. 508, 55 L. Ed. 830, 31 S. Ct. 704; Yordi v. Nolte, 215 U. S. 227. 54 L. Ed. 170, 30 S. Ct. 90. See, also. Rice v. Ames, 180 U. S. 371, 45 L. Ed. 577. 220-21. Authentication requirements of the Act of 1882. — Unsworn statements cer- tified i)y the United States ambassador and the charge d'affaires to be authenti- cated properly and legally so as to be received for similar purposes by tribunals of the country from which the accused has fled are, by the express terms of Act August 3, 1882, c. 378, 22 Stat. 215 (U. S. Comp. St. 1901, p. 3593), admissible in evidence in extradition proceedings. Elias 7'. Ramirez, 215 U. S. 398, 54 E. Ed. 253, 30 S. Ct. 131. 220-22. Sufficiency of evidence. — The evidence is sufficient to justify commit- ment in extradition proceedings on a charge of forgery of railway wheat cer- tificates purporting to show the true weight of car loads of wheat shipped from the United States to Mexico, where the accused was a member of a finn of cus- toms brokers which presented to the Mexican customs authorities certificates showing weights much less than the true weight; that the Mexican government was thereby defrauded of a large amount of import duties; that the accused was the principal, if not the only, beneficiary of the fraud; and that, instead of reparation or explanation, resort was had to flight. Judgment, Ex parte Ramirez (Ariz. 1907), 90 P. 323, reversed. Elias v. Ramirez, 215 U. S. 398, 54 L. Ed. 253, 30 S. Ct. 131. 572 Vol. VI. EXTRADITION. 220-224 roneous where, in addition to a photograph under seal of the foreign magistrate, which represents the prisoner, there are other facts tending to establish such identity.^^*" e. Presumption as to Conduct of Trial. — Courts are bound by the existence of an extradition treaty to assume that the trial in the demanding state will be fair. 22b E. Trial on Another Charge. — See post, "Trial on Another Charge," IV. III. Interstate. A. The Constitutional Provision — 1. Nature; of. — See note 28. 3. Terms of. — See note 30. D. Extraditable Persons — 2. Fugitives from Justice — a. "Fugitive" De- fined. — See note 37. c. Actual Presence. — See note 39. A man may be indicted in a case in which he can not be extradited. ^^'^ A criminal need not do within the state every act necessary to complete the crime. If he does there an overt act which is, and is intended to be, a material step towards accomplishing a crime, and then absents himself from the state, and does the rest elsewhere, he becomes a fugitive from justice for extradition purposes vv^hen the crime is complete, if not before.^^" 220-22a. Identity. — Glucksnian v. Hen- kel, 221 U. S. 508, 55 L. Ed. 830, 31 S. Ct. 704. 220-22b. Presumption as to conduct of trial.— Ghicksman c'. Henkel, 221 U. S. 508, 55 L. Ed. 830, 31 S. Ct. 704. 222-28. Nature of. — McNichols v. Pease, 207 U. S. 100, 52 L. Ed. 121, 28 S. Ct. 58. 222-30. Terms of,— U. S. Const., art. 4, § 2. McNichols v. Pease, 207 U. S. 100, 52 L. Ed. 121, 28 S. Ct. 58; Pierce v. Creecy, 210 U. S. 387, 52 L. Ed. 1113, 28 S. Ct. 714; Strassheim v. Daily, 221 U. S. 280, 55 L. Ed. 735, 31 S. Ct. 558. No person may be lawfully removed from one state to another by virtue of this provision, unless: 1. He is charged in one state with treason, felony or other crime; 2, he has fled from justice; 3, a demand is made for his delivery to the state wherein he is charged with crime. If either of these conditions are absent, the constitution affords no warrant for a restraint of the liberty of any person. Pierce 7'. Creecy, 210 U. S. 387, 401, 52 L. Ed. 1113, 28 S. Ct. 714. The constitution does not require, as an indispensable prerequisite to interstate extradition, that there should be a good indictment, or even an indictment of any kind. It required nothing more than a charge of crime. Pierce v. Creecy, 210 U. S. 387, 403, 52 L. Ed. 1113, 28 S. Ct. 714. See post, "The Indictment," III, H, ]. 223-37. "Fugitive" defined.— McNichois V. Pease, 207 U. S. 100, 52 L. Ed. 121, 28 S. Ct. 58; Bassing v. Cady, 208 U. vS. 386, 52 L. Ed. 540, 28 S. Ct. 392; Strassheim v. Daily, 221 U. S. 280, 55 L. Ed. 735, 31 S. 'Ct. 558. Purpose for leaving state. — A person who is in the state at the time the crime •with which he is charged was committed. and thereafter leaves the state, no matter for what reason or under what belief, he is a fugitive from the justice of that state within the meaning of the constitution and laws of the United States. Bassing z\ Cady, 208 U. S. 386, 52 L. Ed. 540, 28 S. Ct. 392; McNichols v. Pease, 207 U. S. 100, 52 L. Ed. 121, 28 S. Ct. 58; Ex parte Hofifstot, 180 Fed. 240, order af- firmed in Hoffstot V. Flood, 218 U. S. 665, 54 L. Ed. 1201, 31 S. Ct. 222. A person indicted the second time for the same offense is none the less a fugi- tive from justice within the meaning of Const. U. S., art. 4, § 2, and Rev. St. U. S., § 5278 (U. S. Comp. St. 1901, p. 3597), governing extradition, because, after the dismissal of the first indictment, on which he was originally extradited, he left the state with the knowledge of, or without objection bv. the state authorities. Bass- ing V. Cady, 208 U. S. 386. 52 L. Ed. 540. 28 S. Ct. 392. See post, "Extraditing Twice for Same Offense," III, J. 224-39. Actual presence. — Petitioner, a resident of New York, indicted in Penn- sylvania for conspiracy to bribe members of the Pittsburg city council, could not be extradited, in the absence of some oroof that he had been physically present in Pennsylvania when the offense was committed, as otherwise he could not be a fugitive from justice of that state. (C. C.),'Ex parte Hoffstot, 180 F. 240. order affirmed in Hoffstot v. Flood, 218 U. S. 665. 54 L. Ed. 1201, 31 S. Ct. 222. 224-39a. Liability to indictment as de- termining. — Ex parte Hoffstot, 180 Fed. 240, order affirmed in Hoffstot v. Flood, 218 U. S. 665, 54 L. Ed. 1201. 31 S. Ct. 222. 224-39b. Overt Act. — Strassheim v. Daily, 221 U. S. 280, 55 L. Ed. 735, 31 S. Ct. 558. 573 224-225 EXTRADITION Vol. VI. Proof of Presence. — Showing that the accused was in the state in the neigh- borhood of the time alleged in the indictment as the date of the crime, is enough to preclude a discharge upon habeas corpus in extradition proceedings, on the ground that he was not a fugitive from justice.^*^*^ E. Powers and Duty of Governor — 1. Governor Demanding Extradi- tion OF Fugitive. — Requisition by Governor of Porto Rico. — Precisely the same power to issue a requisition for the return of a fugitive criminal as is pos- sessed under Rev. St. U. S. § 5278 (U. S. Comp. St. 1901, p. 3597), by the gov- ernor of any organized territory, is given the governor of Porto Rico by the pro- visions of the Foraker act (Act April 12, 1900, c. 191, § 14, 31 Stat. 80), that the laws of the United States not localjy inapplicable shall be in force and effect in Porto Rico, and of section 17 (page 81) that the governor of Porto Rico shall have al] the powers of governors of the territories of the United States that are not locally inapplicable.'*'^'' 2. Governor of Whom Extradition of Fugitive Is Demanded — a. In Gen- eral. — See note 45. b. Statutory Provisions. — See note 47. f. Evidence before Governor — (1) Questions of Law and Pact to Be Proved. — Right to Be Heard before Governor. — The executive of the surrendering state may act upon the requisition papers in the absence of the accused, and with- out previous notice to him.-"^^'' (2) Evidence of Pugitivity. — See note 54. 224-39C. Proof of Presence. — Strassheim V. Daily, 221 U. S. 280, 55 L. Ed. 735, 31 S. Ct. 558. Where there was specific evidence that petitioner, a resident of New York, par- ticipated there in a conspiracy to bribe members of the city council of Pittsburg to select certain banks in Pittsburg, one of which petitioner was president, as city depositories, and there was substantial evidence from which a jury would be justified in drawing an inference that pe- titioner was in Pittsburg on a day when some act or acts in furtherance of the conspiracy were performed, there was sufficient proof that he was a fugitive from justice to justify his extradition to Pennsylvania. (C. C), Ex parte Hoffstot, 180 F. 240, judgment affirmed in Hoffstot V. Flood, 218 U. S. 665, 54 L. Ed. 1201, 31 S. Ct. 222. 224-44a. Requisition by governor of Porto Rico. — Kopel v. Bingham, 211 U. S. 468, 53 L. Ed. 286, 29 S. Ct. 190. In Kopel V. Bingham, 211 U. S. 468, 53 L. Ed. 286, 29 S. Ct. 190, the court said: "It is impossible to hold that Porto Rico was not intended to have power to re- claim fugitives from its justice, and that it was intended to be created an asylum for fugitives from the United States." Porto Rico is a territory, within the meaning of the provision of Rev. St. U. S., § 5278 (U. S. Comp. St. 1901, p. 3597), authorizing the executive authority, of any state or territory to inake requisition for the extradition of fugitive criminals. Order (1907), 81 N. E. 773, 189 N. Y. 124, affirmed. Kopel v. Binsrham, 211 U. S. 468, 53 L. Ed. 286, 29 S. Ct. 190. 224-45. Power and duty of governor of whom fugitive demanded. — McNichols v. Pease, 207 U. S. 100, 52 L. Ed. 121, 28 S. Ct. 58. 225-47. Statutory provisions. — Mc- Nichols V. Peace, 207 U. S. 100, 52 L. Ed. 121, 28 S. Ct. 58; Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32; Comp- ton V. Alabama, 214 U. S. 1, 53 L. Ed. 885, 29 S. Ct. 605. See post, "The In- dictment," III, H, 1. 225-51a. Right to Hearing before Gov- ernor. — Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32. 225-54. Evidence of fugitivity.— Bassing z: Cady, 208 U. S. 386, 52 L. Ed. 540, 28 S. Ct. 392: Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32. When a person is held in custody as a fugitive from justice under an extradition warrant, in proper form, and showing upon its face all that is required by law to be shown as a prerequisite to its be- ing issued, he should not be discharged from custody unless it is made clearly and satisfactorily to appear that he is not a fugitive from justice within the mean- ing of the constitution and laws of the United States. McNichols v. Pease. 207 U. S. 100, 112. 52 L. Ed. 121, 28 S. Ct. 58. An extradition requisition reciting that the accused was charged by indictment with a specified crime and had, become a fugitive from the justice of that state, ac- companied by a certified copy of the in- dictment, makes a prima facie case against the accused as an alleged fugitive from justice, and, in the absence of proof to the contrary, authorizes the executive of the surrendering state to issue his war- 574 Vol. VI. EXTRADITION. 226-228 G. Habeas Corpus— 1. Right of Accused to Invoke; Aid.— See note 58. 3. Review of Governor's Decision. — How Far Decision May Be Re- viewed. — See note 62. H. Procedure — 1. The Indictment. — Necessity of Indictment or Affi- davit. — The executive of a state upon whom demand is made for the arrest and extradition of a fugitive criminal has no power to issue his warrant of arrest for a crime committed in another state, so far as any authority has been con- ferred upon him by the federal statutes, unless he is furnished with a copy of the indictment or affidavit required by the provisions of Rev. St. U. S. § 5278 (U. S. Comp. St. 1901, p. 3597), governing interstate extradition.'^^''' rant for the arrest and delivery of the al- leged criminal. Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32. Suggestion that fugitive will not re- ceive a fair and impartial trial.— The mere suggestion that the alleged fugitive from the justice of another state, because of his race and color, will not receive a fair and impartial trial, and will not be adequately protected against violence while in custody, does not require the ex- ecutive of the state in which he may be found to refuse to surrender him on de- mand made in conformity with the fed- eral constitution and laws, nor furnish a ground for his release on habeas cor- pus. Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32. See ante, "Pre- sumption as to Conduct of Trial," II, D, 5, e. Rebuttal. — The prima facie case arising on habeas corpus from an extradition warrant, regular on its face, and the re- quisition papers on which it was issued, charging a larceny from the person, com- mitted at Kenosha, Wisconsin, on a spe- cified day, is not rebutted by affidavits which import nothing more than that the accused was in Chicago, Illinois, at 1 o'clock and during the whole of the after- noon of that day, although the petition for habeas corpus contains an allegation that the accused had heard the person against whom the crime is alleged to have been committed testify in another habeas corpus proceeding that such crime was committed at 2 o'clock in the afternoon of the day named. McNichols v. Pease, 207 U. S. 100, 52 L. Ed. 121, 28 S. Ct. 5S. Whether the alleged criminal is or is not such fugitive from justice may, so far as the constitution and laws of the United States are concerned, be determined by the executive upon whom the demand is made in such way as he deems satisfac- tory, and he is not obliged to demand proof apart from proper requisition pa- pers from the demanding state, that the accused is a fugitive from justice. Mc- Nichols V. Pease, 207 U. S. 100, 109, 52 L. Ed. 121, 28 S. Ct. 58; Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32. 226-58. Right to invoke aid. — A pro- ceeding by habeas corpus in a court of competent jurisdiction is appropriate for determining whether the accused is sub- ject, in virtue of the warrant of arrest, to De taken as a fugitive from the justice of the state in which he is found to the state whose laws he is charged with vio- latmg. McNichols i;. 'Pease, 207 U. S. 100, 109, 52 L. Ed. 121, 28 S. Ct. 58. One arrested and held as a fugitive from justice is entitled, of right, upon habeas corpus, to question the lawfulness of his arrest and imprisonment, showing by competent evidence, as a ground for his release, that he was not, within the meaning of the constitution and laws of the United States, a fugitive from the justice of the demanding state, and thereby overcoming the presumption to the contrary arising from the face of an extradition warrant. McNichols v. Pease, 207 U. S. 100, 109, 52 L. Ed. 121, 28 S. Ct. 58. And see post, HABEAS CORPUS. 227-62. How far it may be reviewed. — When it appears, that the affidavit in question was regarded by the executive authority of the respective states con- cerned as a sufficient basis, in law, for their acting, the one in making a re- quisition, the other in issuing a warrant for the arrest of the alleged fugitive, the jtidiciary should not interfere, on habeas corpus, and discharge the accused, upon technical grounds, and unless it be clear that what was done was in plain con- travention of law. Compton v. Alabama, 214 U. S. 1, 8, 53 L. Ed. 885, 29 S. Ct. 605; Ex parte Hof¥stot, 180 Fed. 240, oider af- firmed in Hoffstot V. Flood, 218 U. S. 665, 54 L. Ed. 1201. 31 S. Ct. 222. The objection that an extradition re- quisition contains a clause that the de- manding state will not be responsible for any expense attending the arrest and de- livery of the alleged fugitive is not avail- able to the accused on habeas corpus to inquire into the legality of the extradition proceedings, but is a matter for the con- sideration of the executive of the sur- rendering state when he receives the of- ficial demand for the surrender of the al- leged fugitive criminal. Marbles v. Creecy, 215 U. S. 63, 54 L. Ed. 92, 30 S. Ct. 32. 228-70a. Necessity of indictment or affi- davit. — Compton V. Alabama, 214 U. S. 1, 53 L. Ed. 885, 29 S. Ct. 605. Affidavit before notary sufficient. — An 575 228-229 EXTRADITION. Vol. VI. Sufficiency of. — The indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the ac- cused was substantially charged with crime.'^^'' J. Extraditing Twice for Same Offense. — A second indictment for the same offense may serve as the basis for the second extradition of a person as a fugitive from justice without violating any rights secured to him by the federal constitution or laws, where the first indictment, on which the accused was origi- nally extradited, was dismissed on motion of the state's attorney before the ac- cused was placed in jeopardy." ^^ IV. Trial on Another Charge. A. In International Cases. — Prosecution for Subsequent Offense — Op- portunity to Return. — Immunity from trial for an offense committed by a person after his extradition until he has been afforded an opportunity to return to the country whence he was extradited was not given by the provisions of the treaties with Great Britain of August 9, 1842 (8 Stat. 576), and July 12, 1889 (26 Stat. 1508), or Rev. St. U. S. § 5275 (U. S. Comp. St. 1901, p. 3596), under which such immunity as to prior offenses only is secured. ^*^^ affidavit before a notary who, under Civ. Code Ga. 1895, p. 982, § 4052, is ex officio a justice, must be regarded as satisfying the requirement of the provisions of Rev. St. U. S. (Pen. Code 1895, p. 93, § 293), § 5278 (U. S. Comp. St. 1901, p. 3597), governing interstate extradition, that such affidavit be made before a magis- trate, where the governor of Georgia has based his requisition upon such affidavit, and a warrant has been issued thereon by the governor of the state upon whom the demand for arrest and extradition was made. Compton v. Alabama, 214 U. S. 1, 53 L. Ed. 885, 29 S. Ct. 605. 228-71a. Sufficiency of. — Pierce v. Creecy, 210 U. S. 387, 405, 52 L. Ed. 1113, 28 S. Ct. 714; Strassheim v. Daily, 221 U. S. 280, 55 L. Ed. 735, 31 S. Ct. 558. An indictment, whether good or bad as pleading, which unmistakably describes every element of the criine of false swear- ing, as defined by Pen. Code Tex. 1895, art. 209, is a charge of crime within the meaning of Const. U. S., art. 4, § 2, par. 2, regulating interstate extradition, judg- ment, Ex parte Pierce (C. C. 1907), 155 F. 663, affirmed. Pierce v. Creecy, 210 U. S. 387, 52 L. Ed. 1113, 28 S. Ct. 714. In Pierce v. Cr-eecy, 210 U. S. 387, 52 L. Ed. H13, 28 S. Ct. 714. the court said, in passing upon the sufficiency of the indict- ment, if more were required of the in- dictment than substantially charging ac- cused with the crime, it would impose upon courts in the trial of writs of ha- beas corpus, the duty of a critical ex- amination of the laws of states with whose jurisprudence and criminal pro- cedure they can have only a general ac- quaintance. Such a duty would be an intolerable burden, certain to lead to er- rors in decision, irritable to the just pride of the states and fruitful of miscarriages of justice. The duty ought not to be as- sumed unless it is plainly required by the constitution, and there is nothing in the letter or the spirit of that instrument which requires or permits its perform- ance. A count in an indictment for obtaining money by false pretenses, alleging that money was obtained from the state by falsely representing that certain machin- ery sold to the state was new, whereas in tact it was secondhand, substantially charges a crime so as to preclude a dis- charge on habeas corpus in extradition proceedings, although the contract of sale contains guaranty and testing clauses, which relate, however, only to workman- ship and freedom from defects. Strass- heim V. Daily, 221 U. S. 280, 55 L. Ed. 735, 31 S. Ct. 558. 229-78a. Extraditing twice for same of- fense.— Bassing V. Cady, 208 U. S. 386, 52 L. Ed. 540, 28 S. Ct. 392. See ante, " 'Fugi- tive' Defined," III, D, 2, a. 229-80a. Prosecution for subsequent of- fense — Opportunity to return. — Collins v. O'Neil, 214 U. S. 113, 53 L. Ed. 933, 29 S. Ct. 573. An extradited person is given no right to have his trial brought to a conclusion before he can be tried for an offense sub- sequently committed by the provisions of the treaties with Great Britain of August 9, 1842 (8 Stat. 576), and July 12, 1889 (26 Stat. 1508), or Rev. St. U. S., § 5275 (U. S. Comp. St. 1901, p. 3596), under which he is entitled to a reasonable time to re- turn to the country whence he was extra- dited before he can be tried for another offense committed prior to his extradition. Collins i: O'Neil, 214 U. S. 113, 53 L. Ed. 933 29 S Ct 573 lin^Coliins v. O'Neil, 214 U. S. 113, 53 L. Ed. 933, 29 S. Ct. 573, the court said: "It is impossible to conceive of represen- tatives of two civilized countries solemnly 576 231-241 FAILURE. Vol. VI. —See note 231-2. REMEDIES.— See EXTRAORDINARY. EXTRAORDINARY TiONS ; Mandamus. EXTRA PAY.— See ante, Army and Navy p EXTRATERRITORIAL.— See ante, Courts, p. L,A\\'. FACTORS AND COMMISSION MERCHANTS.— See the title Factors and Commission Merchants, vol. 6, p. 232, and references there given. FAILURE.— See note 241-2. post, Habeas Corpus; Injunc- 150. 398; post, International entering into a treaty of extradition, and therein providing that a criminal sur- rendered according to demand, for a crime that he has committed, if subse- quently to his surrender he is guilty of murder or treason or other crime is, nevertheless, to have the right guaranteed to him to return unmolested to the coun- try which surrendered him. We can im- agine no country, by treaty, as desirous of exacting such a condition of surrender or any country as willing to accept it. When a treaty or statute contains a pro- vision that the party surrendered shall be tried for no other offense until he has had an opporttmity to leave the country, the meaning of such a provision is perfectly plain, and must receive a reasonable and sensible construction. The party pro- ceeded against must not be tried for any other offense existing at the time when he was extradited (whether at the time of such extradition it had or had not been discovered), until he shall have had a rea- sonable time to return to the country from which he was taken, after his trial or other termination of the proceeding. That such privilege should be accorded to one who commits a crime after his sur- render to a demanding government lacks all semblance of reason or sense." 231-2. Extraordinary emergency. — The building of public levee on the Missis- sippi River in the eastern district of Lou- isiana can not be said to present at all times an extraordinary emergency, within the meaning of the Act of August 1, 1892, c. 352, 27 Stat. 340, restricting hours of labor of laborers and mechanics employed by the government or by any contractor or subcontractor, upon any of the public works of the United States, and making it unlawful for any officer of the govern- ment or any such contractor to require or permit such laborers to work a longer time "except in cases of extraordinary emergency." It has been decided that no mere requirement of business convenience or pecuniary advantage is an extraordi- nary emergency within the meaning of the act. Besides, the extraordinary emer- gency which relieves from the act is not one that is contemplated and inheres nec- essarily in the work. It is a special oc- currence, and the phrase used emphasizes this. It is not an emergency simply which is expressed by it, something merely sud- 12 U S Enc— 37 577 den and unexpected, but an extraordi- nary one, one exceeding the common de- gree. The phrase "continuing extraordi- nary emergency" is self-contradictory. United States v. Garbish, 222 U. S. 257, 258, 56 L. Ed. 190, 32 S. Ct. 77. See post, LABOR. 241-2. Failure to complete contract. — In a government contract for dredging made by a copartnership, to begin work on or before March 1, 1899, and to com- plete it on or before July 1, 1902, one term of the contract was that if they should fail to begin on time or should, "in the judgment of the engineer in charge, fail to prosecute faithfully and diligently the work in accordance with the specifica- tions and requirements of this contract, then, in either case, the party of ihe first part, or his successor legally appointed, shall have power, with the sanction of the chief of engineers, to annul this contract by giving notice in writing to that effect.'' Toward the end of the contract, four paragraphs further on than the last, was the further agreement: "In case of failure on the part of the party of the second part to complete this contract as specified and agreed upon, that all sums due and per- centage retained shall thereby be forfeited to the United States, and that the said United States shall also have the right to recover any or all damages due to such failure in excess of the sums so forfeited, and also to recover from the party of the second part, as part of said damages, what- ever sums may be expended by the party of the first part in completing the said contract, in excess of the price herein stipulated to be paid to the party of the second part for completing the same." The words "in case of failure ^^ * * to complete this contract as specified and agreed upon," on their face mean failure to complete by July 1, 1902, not failure to complete because turned off by the engi- neer in charge, a year and six months be- fore that time arrived, when competent persons might do the job. The earlier clause under which the so-called annul- ment took place provides for no such con- sequence, but only for a forfeiture of reserved percentage and money due. United States v. O'Brien, 220 U. S. 321, 325, 55 L. Ed. 481, 31 S. Ct. 406. See post. UNITED STATES. 242-244 FBBS. Vol. VL FAILURE OF CONSIDERATION.— See ante, Bills, Notes and Checks, p. 204. And see ante, Contracts, p. 373, and references there given. FAIR.— See note a. FAITH. — See post, Good Faith, and references there given. FAITH AND CREDIT.— See post, Foreign Judgments, Records and Judi- cial Proceedings. FALSE ENTRY. — See ante, Banks and Banking, p. 184. FALSE IMPRISONMENT.— See t^ie title False Imprisonment, vol. 6, p. 242, and references there given. FALSE PRETENSES AND CHEATS.— See False Pretenses and Cheats, vol. 6, p. 243, and references there given. In addition, as to a count in an in- dictment for obtaining money by false pretenses, substantially charging a crime so as to preclude a discharge on habeas corpus in extradition proceedings, see ante. Extradition, p. 571. FALSE REPRESENTATIONS.— See post. Fraud and Deceit. FALSIFICATION OF PUBLIC DOCUMENTS.— See post. Forgery and Counterfeiting. FALSIFYING RECORDS. — See post, Indictments, Ineormations, Pre- sentments AND Complaints; Records. FAMILY SETTLEMENTS. — See ante, Executors and Administrators, p. 564; post, Fraud and Deceit. FAVORED NATION CLAUSE.— See post. Treaties. FEDERAL CONSTITUTION.— See ante. Constitutional Law, p. 264. FEDERAL CORPORATION.— See note 2a. FEDERAL COURTS.— See ante. Courts, p. 398, and references there given. FEDERAL EMPLOYERS' LIABILITY ACT.— See post. Fellow Servants: Master and Servant. FEDERAL QUESTION.— See ante, Appeal and Error, p. 34; Courts, p. 398: post. Removal oe Causes. FEES.— See note 3. 242-a. Process fair on its face. — "The case falls clearly within the rule, often ap- plied in this and other courts, which is well stated in Cooley on Torts, 3d ed.. vol. 2, p. 888, as follows: 'The process that shall protect an officer must, to use the customary legal expression, be fair on its lace. By this is not meant that it shall appear to be perfectly regular, and in all respects in accord with proper practice, and after the most approved form; but what is intended is, that it shall apparently be process lawfully issued, and such as the officer might lawfully serve. More precisely, that process ma}^ be said to be fair on its face which proceeds from a court, magistrate, or body having author- ity of law to issue process of that nature, and which is legal in form, and on its face contains nothing to notify or fairlj' apprise the officer that it is issued without au- thority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it.' " Bryan v. Ker, 222 U. S. 107, 56 L. Ed. 114, 117, 32 S. Ct. 26. See post, SUMMONS AND PROCESS. 244-2a. Federal corporation. — A corpo- ration originally incorporated in the In- dian Territory under the Arkansas stat- utes which were put in force therein by the act of congress of February 18, 1901 (31 Stat, at L. 794, chap. 379), became an Oklahoma corporation when that state was admitted to the Union, must be re- garded for jurisdictional purposes as a citizen of that state and not a federal corporation. Shulthis z'. McDougal, 225 U. S. .561. 56 L. Ed. 1205, 32 S. Ct. 704. See ante. COURTS, p. 398. 244-3. Fee to do business within state a tax. — "The statutory requirement that the telegraph company shall, as a condition of its rights to engage in local business in Kansas, first pay into the state school fund a given per cent of its authorized capital, representing all of its business and property everj^where, is a burden on the company's interstate commerce and its privilege to engage in that commerce, in that it makes both such coinmerce, as conducted by the company, and its prop- erty outside of the state, contribute to the support of the state's schools. Such is the necessary effect of the statute, and that result can not be avoided or concealed by calling the exaction of such a per cent of its capital stock a fee for the privilege of doing local business. To hold otherwise 578 Vol. VI. FELLOW SERVANTS. 247-248 FEES AND EMOLUMENTS.— See ante, Ci^Erks of Court, p. 241; Du Facto Officers, p. 460; post, Public Officers. FELLOW SERVANTS. II. History and Origin of Doctrine, i7^J. III. Operation of Doctrine, 579. A. At Common Law, 579. 4. With Respect to Character of Negligent Act, 579. b. Negligence in Discharge of Positive or Nonassignable Duties of Master, 579. (1) In General, 579. (2) Safe Place to Work, Safe Tools, Machinery, Appli- ances, etc., 580. (a) In General, 580. 6. Servants in Separate Departments, 580. c. Particular Employments, 580. (1) Employees of Railroads, 580. 7. Concurrent Negligence of Master or Vice Principal with That of Fellow Servant, 580. 10. Servants Who Are or Are Not Fellow Servants, 581. C. Federal Employer's Liability Acts, 581. IV. Actions, 581. A. What Law Governs, 581. B. Question of Law and Fact, 581. ■ D. Instructions, 582. CROSS REFERENCES. See the title Fellow Servants, vol. 6, p. 245, and references there given. In addition, see ante, Courts, p. 398; post. Interstate and Forfign Com- merce; Master and Servant. II. History and Origin of Doctrine. Power of Courts to Change.— The doctrine as to fellow servants may be, as it has. been called, a bad exception to a bad rule, but it is established, and it is not open to courts to do away with it upon their personal notions of what is ex- pedient,''^ the legislature must act if any change is to be made in the fellow- servant doctrine.'^ III. Operation of Doctrine. A. At Common Law — 4. With Respect to Character of Negligent Act — b. Negligence in Discharge of Positive or Nonassignable Duties of Master — (1) In General. — See note 15. is to allow form to control substance. 247-7a. Power of court to change. — The statute here involved prohibits a Beutler z'. Grand Trunk, etc., R. Co., 224 foreign corporation from doing any local U. S. 85, 5G L. Ed. 679, 32 S. Ct. 402, cit- business in Kansas unless such corpora- ing Kuhn v. Fairmont Coal Co., 215 U. tion first pays into the state's school fund S. 349, 54 L. Ed. 228, 30 S. Ct. 140; and a tax, or, which is the same thing, a fee, Northern Pac. R. Co. v. Hambly, 154 U. in the form of a given per cent of all its S. 349, 360, 38 L. Ed. 1009, 14 S. Ct. 983. capital, representing all of its busi- 247-7b. Power of legislature.— Beutler ness, property and mterests everywhere. ^. Grand Trunk, etc.. R. Co., 224 U. S. Western Union Tel. Co. v. Coleman, 216 §5 55 ^ Ed 679 3^ S Ct 402 U. S^l 37, 54 L. Ed^ 355, 30 S.Ct. 190. '^^^^^^ McCabe, etc., Constr. Co. z: See Pullman Co. z,. Kansas 216 U S 56, ^^-^ g^g U. S. 275, 52 L. Ed. 788, 28 S. 62, 54 L. Ed. 378, 30 S. Ct. 232. See, also, p . ' ' post, INTERSTATE AND FOREIGN ^^- ^^**- COMMERCE. 579 248-266 FELLOW SBRVAXTS. \o\. VI. (2) Safe Place to Work, Safe Tools, Machinery, Appliances, etc. — (a) In General. — The master must provide a safe and suitable place and structure in and upon which his servants are to do their work and the action of employees to whom he delegates this duty is the action of the master who is liable for the neg- ligence of his representative or servant in its performance. ^^^ 6. Servants in Separate Departments — c. Particular Employments — (1) Employees of Railroads. — Laborers Employed upon a Railroad Track and Employees of a Moving Train. — See note 69. 7. Concurrent Negligence of Master or \'ice Principal with That of Fellow Servant. — See note 74. 248-16a. Duty as to place to work. — McCabe, etc., Constr. Co. v. Wilson, 209 U. S. 275, 52 L. Ed. 788, 28 S. Ct. 558; Standard Oil Co. v. Brown, 218 U. S. 78. 54 L. Ed. 939. 30 S. Ct. 669. 264-69. Fireman and superintendent of construction and bridge foreman. — A fire- man employed on a locomotive and en- gaged in the movement of a train is not a fellow servant with the superintendent of construction and the foreman of a bridge gang, who are present and engaged in supervising and directing the work on the bridge. McCabe, etc., Constr. Co. v. Wilson, 209 U. S. 275. 52 L. Ed. 788, 28 S. Ct. 558, affirming 17 Okl. 355, 87 P. 320. These latter employees represented the principal in an entirely different line of employment from that in which the plain- tiff was engaged, were discharging a positive duty of the master to provide a safe place and suitable place and struc- tures in and upon which his employees are to do their work, and in discharging that duty they, and not the plaintiff, represented the master. McCabe, etc.. Constr. Co. v. Wilson, 209 U. S. 275, 52 L. Ed. 788, 28 S. Ct. 558, following Union Pac. R. Co. V. O'Brien, 161 U. S. 451, 40 L. Ed. 766, 16 S. Ct. 618. A railway engineer and a section fore- man are both fellow servants of a section hand, so that the latter can not recover from tlie railway company for injuries re- sulting from their negligence. Texas, etc., R. Co. 7-. Bourman, 212 U. S. 536, 53 L. Ed. 641, 29 S. Ct. 319; Beutler v. Grand Trunk, etc., R. Co., 224 U. S. 85, 56 L. Ed. 679. 32 S. Ct. 402. "Both the engineer and the section foreman were fellow servants of the plain- tiff; and. if the plaintiff's injury was caused by the negligence of either, the law, as it many times has been declared h\ this court, will not permit a recovery. Baltimore, etc., R. Co. v. Baugh, 149 U. S. 368. 37 L. Ed. 772, 13 S. Ct. 914; North- ern Pac. R. Co. V. Hambly, 154 U. S. 349. 38 L. Ed. 1009, 14 S. Ct. 983; Central R. Co. V. Keegan, 160 U. S. 259, 40 L. Ed. 418. 16 S. Ct. 269; Northern Pac. R. Co. v. Peterson. 162 U. S. 346, 40 L. Ed. 994. 16 S. Ct. 843; Northern Pac. R. Co. v. Charless, 162 U. S. 359, 40 L. Ed. 999, 16 S. Ct. 848; Martin v. Atchison, etc., R. Co., 166 U. S. 399, 41 L. Ed. 1051, 17 S. Ct. 603;- Alaska Min. Co. v. Whelan, 168 U. S. 86, 42 L. Ed. 390, 18 S. Ct. 40; New England R. Co. v. Conroy, 175 U. S. 323, 44 L. Ed. 181, 20 S. Ct. 85; Northern Pac. R. Co. V. Dixon, 194 U. S. 338, 48 L. Ed. 1006, 24 S. Ct. 683." Texas, etc., R. Co. V. Bourman, 212 U. S. 536, 54 L. Ed. 641, 29 S. Ct. 310. An employee at work in the repair yard of a railroad is a fellow servant of mem- bers of an engine and switching crew by whose negligence in running a car needing repair from the general tracks into the special yard the former is killed. Beutler v. Grand Trunk, etc., R. Co., 224 U. S. 85, 56 L. Ed. 679, 32 S. Ct. 402. No testimony can shake the obvious fact that the character of their respective occupations brought the people engaged in them into necessary and frequent con- tact, although they may have had no per- sonal relations. Every time that a car was to be repaired it had to be switched into the repair yard. There is no room for the exception to the rule that exists where the negligence consists in the un- disclosed failure to furnish a safe place to work in; an exception that prehaps has been pushed to an extreme in the effort to limit the rule. Santa Fe Pac. R. Co. V. Holmes. 202 U. S. 438, 50 L. Ed. 1094, 26 S. Ct. 676; McCabe, etc., Constr. Co. V. Wilson, 209 U. S. 275, 52 L. Ed. 788, 28 S. Ct. 558; Beutler v. Grand Trunk, etc., R. Co., 224 U. S. 85, 56 L. Ed. 679, 32 S. Ct. 402. 266-74. Concurring negligence of mas- ter and fellow servant. — Concurring neg- ligence of the master and a fellow serv- ant does not exclude the master's liability if his negligence in failing to provide and maintain a safe place to work contributed to the injury. Judgment (1907), 152 F. 120. 81 C. C. A. 338, 11 L. R. A. (N. S.), 684, reversed. Kreigh v. Westinghouse, etc., Co., 214 U. S. 249, 53 L. Ed. 984. 29 S. Ct. 619, follows Grand Trunk R. Co. v. Cum- mings. 106 U. S. 700. 27 L. Ed. 266, 1 S. Ct. 493; Deserant v. Cemllos, etc., R. Co.. 178 U. S. 409, 420. 44 L. Ed. 1127, 20 S. Ct. 967. Tlie negligence of a fellow servant does not exclude the master's liability if the 580 Vol. VI. FELLOW SERVANTS. 271 10. Servants Who Are or Are Not Fellow Servants. — See ante, "Em- ployees of Railroads," III, A, 6, c, (1). C. Federal Employer's Liability Acts.— Among the departures from the common law made by the Act of April 22, 1908, 35 Stat, at L., 65 chap., 149 U. S. Comp. Stat. Supp. 1909, p. 1071, is this: The rule that the negligence of one employee resulting in injury to another was not to be attributed to their common employer is displaced by a rule imposing upon the employer responsibility for such an injury, as was done at common law when the injured person was not an employ ee.^*^^ IV. Actions. A. What Law Governs. — Law applied bv federal courts. See ante, Courts, p. 398. B. Question of Law and Fact. — It may be that in the state court the ques- tion whether or not certain employees of a railroad were fellow servants would be left to the jury, but whether certain facts do or do not constitute a ground of liability is in its nature a question of law. To leave it uncertain is to leave the law uncertain. In the federal courts the question is one of law.^^'' Concurring- Negligence of Master and Fellow Servant. — See ante, "Con- current Negligence of Master or \'ice Principal with That of Fellow Servant," III, A, 7. latter's failure to warn an employee working on the floor of a dimly lighted stable of the danger to him from the cus- tomary use of a hole in the ceiling to toss or drop hay or feed to the floor below contributed to the injury. (1910), Stand- ard Oil Co. V. Brown, 218 U. S. 78, 54 L. Ed. 939. 30 S. Ct. 669, affirming judg- ment (1908), 31 App. D. C. 371. If it be granted that the servant who contributed to the injury was a fellow servant of the plaintiff, and was negli- gent; it was nevertheless for the jury to say whether the fault of the master con- tributed to the injury. Kreigh v. West- inehouse. etc., Co., 214 U. S. 249. 53 L. Ed. 984, 29 S. Ct. 619; Standard Oil Co. v. Brown, 218 U. S. 78, 54 L. Ed. 939, 30 S. Ct. 669. No reversible error is committed in leaving to the jury an action for personal injuries sustained by an employee from a falling timber, while he was digging a post hole under a coal chute and other employees were tearing up the floor above him, with instructions that if the injur}' was due to the negligence of the master in sending men to work above the employee, as a contributing cause, the master was liable, but not if the injury was due only to the negligence of fellow servants in their \\2.y of performing their work. Texas, etc., R. Co. v. Howell, 224 U. S. 577, 56 L. Ed. 892. 32 S. Ct. 601. "It was open to the jury to find that the usual duty to take reasonable care to furnish a safe place to the plaintiff in his work remained. They well might be of opinion that the general nature of the things to be done gave no notice to the plaintifif that he was asked to take a necessary risk. .\t the same time, they were warranted in saying that if the de- fendant saw fit to do the work above and below at the same time, it did so with the notice of the danger to those underneath, and took chances that could not be at- tributed wholly to the hand through which the harm happened. Even if Howell, the plaintiff, knew that repairs were going on overhead, that did not necessarily put him on an equality with his employer, and require a ruling that he took the risk. Kreigh v. Westinghouse, etc., Co., 214 U. S. 249. 53 L. Ed. 984, 29 S. Ct. 619." Texas, etc., R. Co. V. Howell. 224 U. S. 577. 56 L. Ed. 892, 32 S. Ct. 001. 271-90a. Federal Employers' Liability Act. — Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327. 32 S. Ct. 169. Sec post, MASTER AXD SERVANT. Constitutionality as to states. — See ante, CONSTITUTIONAL LAW. p. 264; DUE PROCESS OF LAW. p. 475; post. INTERSTATE AND FOREIGN COMMERCE. Constitutionality as to District of Co- lumbia and trustees. — See post. INTER- STATE AXD FOREIGN COMMERCE. As abrogating rule as to assumption of risk of employment. — See post, M.\STER AND SERVANT. As adoption of comparative negligence rule.— See post, PIASTER AND SERV- ANT. As prescribing agreements, etc.. for ex- emption from liability — Set-off of insur- ance, etc., contribution. — See post. MAS- TER AXD SERVANT. Jurisdiction of state and federal court. —See ante. COURTS, p. 398. 271-91a. Question of law and fact. — Beutler v. Grand Trunk, etc.. R. Co.. 224 U. S. 85, 56 L. Ed. 679, 32 S. Ct. 402. 581 271-281 FIERI FACIAS. Vol. VI. D. Instructions. — The refusal to instruct that an engineer and a section foreman are both fellow servants of a section hand injured in attempting to alight from a moving train, and that, if such injury was caused by the negligence of either, the railway company is not liable, is reversible error, where the jury might have based its verdict for plaintiff on the carelessness either of the sec- tion foreman or engineer. ^^'^ Concurring Negligence of Master and Fellow Servant. — See ante, "Con- current Negligence of Master or Vice Principal with That of Fellow Servant," III, A, 7. FELONY. — See ante, Criminal Lav^, p. 434; Extradition, p. 571. As to the terms "treason, felony and breach of the peace," as used in the constitutional provision exempting senators and representatives from arrest, see post, Priv- ilege. FEME COVERT OR FEME SOLE.— See post. Husband and Wife. FENCE LAW,— See ante. Animals, p. 27. FENCES. CROSS REFERENCES. See the title Fences, vol. 6, p. 272, and references there given. In addition, see ante, Animals, p. 27; post. Public Lands. Application to United States. — Quaere, do local fence laws apply to the United States ?i^ FER.ffi NATUR.ffi.— See ante. Animals, p. 27. FERRIES. — See the title FlrriES, vol. 6, p. 274, and references there given. FIDELITY AND GUARANTY INSURANCE. CROSS REFERENCES. See Fidelity and Guaranty Insurance, vol. 6, p. 282, and references there given. See, also, the title Banks and Banking, vol. 3, pp. 96-106. In addition, see ante. Banks and Banking, p. 184. An employer is entitled to recover upon a bond of a surety company to in- demnify him against loss attributable to the dishonesty of an employee upon proving the bond, an embezzlement, and a breach by a refusal to indemnify. He was not obliged to aver that he had made the examinations which he agreed should be made. If he had failed in that duty, it was for the surety company to so plead and prove. ^^ Liability on the bond is defeated where the loss was due to the neglect of the employer to supervise the conduct of the employee by making such monthly examinations of his accounts as it agreed to make or have made.i*^ FIERI FACIAS.— See ante. Executions, p. 563. 271-93a. Instructions. — Texas, etc., R. 281-la. Right of employer to recover. Co. V. Bourman, 212 U. S. 536, 53 L. Ed. —Title Guaranty, etc.. Co. v. Nichols, 224 641, 29 S. Ct. 319, affirming 160 F. 452. U. S. 346, 56 L. Ed. 795, 32 S. Ct. 475. And see post, INSTRUCTIONS. 281-lb. Liability defeated.— Title Guar- 272-la. Light v. United States, 220 U. anty, etc., Co. v. Nichols, 224 U. S. 346, S. 523, 55 L. Ed. 570, 31 S. Ct. 485. _ 56 L. Ed. 795, 32 S. Ct. 475. 582 Vol. VI. FOLIO CHARGE. 299-301 FINAL JUDGMENTS OR DECREES.— See ante, App^ai, and Error, p. 34; Bill op Review, p. 203. FINDINGS OF COURT.— See ante, Appeal and Error, p. 34. FINES. — See the title Fines, vol. 6, p. 284, and references there given. In addition, see ante, Constitutional Law, p. 264. FIRE INSURANCE.— See post, Insurance. FIRES. — See the title Fires, vol. 6, p. 287, and references there given. In addition, as to liability for fire caused by negligent mixture of coal oil and gas- oline, see post. Negligence. As to the court judicially noticing a custom in the territory of Oklahoma to use coal oil in kindling fires, see post. Judicial Notice. FISH AND FISHERIES. IV. Protection and Regulation of Fish and Fisheries, 583. G. Power of State to Regulate, 583. 2. In Interstate Rivers, 583. CROSS REFERENCES. See the title Fish and Fisheries, vol. 6, p. 291, and references there given. In addition, see post. Interstate and Foreign Commerce; Oysters. IV. Protection and Regulation of Fish and Fisheries. G. Power of State to Regulate — 2. In Interstate Rivers. — Oregon can not under its concurrent jurisdiction, under Act Cong. Feb. 14, 1839, c. ZZ, 11 Stat. 383, over the Columbia river, make criminal the operation of a purse net in that river within the territorial limits of the state of Washington, under au- thority and license from that state.'*"^ FISHING BILL. — "A discovery sought upon suspicion, surmise or vague guesses is called a 'fishing bill,' and will be dismissed."^ FIXTURES. CROSS REFERENCES. See the title Fixtures, vol. 6, p. 300, and references there given. Machinery is placed in a plant by the owner within the meaning of Porto Rico Code, § 335, defining the conditions under which property, movable in its nature, becomes immobilized, where it is installed by a tenant under a stipulation in the lease that it shall become a part of the plant belonging to the owner, without compensation to the lessee.^" FLAG. — See ante. Constitutional Law, p. 264; post. Police Power. FLAG LIEUTENANT.— See ante. Aid, p. 17. FOLIO CHARGE.— See ante. Clerks of Court, p. 241. 299-47a. Judgment State v. Nielsen 221 U. S. 533. 340, .5.5 L. Ed. 842, 31 S. Ct. (Or.), 95 Pac. 720, reversed. Nielsen r. 683. See ante, DISCOVERY, p. 465. Oregon. 212 U. S. 315, 53 L. Ed. 528, 29 301-6b. Machinery installed by tenant. S. Ct. 383. See, also, ante, ROUND- — Valdes v. Central Altagracia, 225 U. S. ARIES, p. 206; post, N A V I G .\ B L E 58, 56 L. Ed. 980, 32 S. Ct. 664. See. also, WATERS. post, LANDLORD AND TENANT. 299-a. Fishing bill. — Carpenter v. Winn, 583 FOREIGN CORPORATIONS. Vol. VI. FOODS AND DRUGS. — See Food, vol. 6, p. 302, and references there given. In addition, see post, Health. As to right of state to legislate against adulterated foods, see ante, Constitutional Lavv^, p. 264. As to denial of equal protection of the law under food statutes, see ante, Constitutional Lav^, p. 264. As to provisions in a cold storage ordinance for destruction of unwholesome food not being unconstitutional as depriving persons of property without due process of law, because it does not provide for notice and opportunity to be heard before such destruction, or because the part destroyed might have some value for other purposes than food, see ante, Due Process op Law, p. 475. As to what consti- tutes "misbranding" within the food and drugs act of Jan. 30, 1906, see post, In- terstate AND Foreign Commerce. As to prohibiting sale of adulterated food under the food and drugs act of Jan. 30, 1906, and its etTect upon commerce, see post, Interstate and Foreign Commerce. As to object of food and drugs act of Jan. 30, 1906, see post, Interstate and Foreign Commerce. As to notice and hearing being a condition precedent to the prosecution of a manufacturer, instituted by the department of agriculture, for shipment of misbranded goods in interstate commerce, see post. Interstate and Foreign Commerce. FORCIBLE ENTRY AND DETAINER.— See the title Forcible Entry and Detainer, vol. 6, p. 303, and references there given. FORECLOSURE. — See post. Mortgages and Deeds of Trust. FOREIGN COMMERCE. — See post. Interstate and Foreign Commerce. FOREIGN CORPORATIONS. II. Extraterritorial Rights and Powers, 585. A. Existence Out of State Granting Charter, and Comity Rule, 585. 2. Power to Exclude or Expel, 585. a. In General, 585. c. Corporations Engaged in Interstate and Foreign Commerce, 585. 4. Terms of Admission, 585. a. Discretion of Legislature, 585. (1) General Rule, 585. (2) Limitations, 586. b. License, Deposit, or Payment of Tax, 586. c. Maintenance of Office, and Agent for Service of Process, 587. e. Condition against Removal of Actions to Federal Courts, 587. g. Filing Statement of Condition, 588. h. Prohibiting Suit in State Courts, 588. 5. Effect of Noncompliance with Terms, 588. 8. Regulation and Control, 589. 9. Validating Contracts Made Prior to Admission to State. 590. 10. Forfeiture of Permit and Expulsion, 590. B. Powers, 591. 1. In General, 591. III. Actions and Suits by and against, 591. A. Power to Sue, 591. B. Liability to Suit, 591. C. Jurisdiction, 591. CROSS REFERENCES. See the title Foreign Corporations, vol. 6, p. 305, and references there given. In addition, see ante, Appearances, p. 144; post, Monopolies and Corpo- rate Trusts. As to right to subject by attachment to payment of debt property claimed by 584 Vol. VI. FOREIGN CORPORATIONS. 309-315 a citizen as against the debtor, see ante, Alie;ns, p. 18; Due Process of Law, p. 475 ; post, Quo Warranto ; Treaties. II. Extraterritorial Rights and Powers. A. Existence Out of State Granting Charter, and Comity Rule — 2. Power to Exclude or Expel — a. In General. — The general principle that the right of a foreign corporation to engage in business within a state depends solely on the will of such state has been long settled, ^"'^ but there is no uncontrollable power in a state to prohibit all foreign corporations, in whatever business en- gaged, from doing business within its limits. A state has the right to prohibit a toreign corporation from doing business within its borders, unless such pro- hibition is so conditioned as to violate some provision of the federal constitu- tion.!*"' Expulsion. — See note 11a. c. Corporations Engaged in Interstate and Foreign Commerce. — The inter- state busniess of a foreign corporation is a business of an acceptional character, and is protected by the constitution against interference by state authority. A corporation of one state, authorized by its charter to engage in lawful commerce among ihe states, can not be prevented by another state from coming into its limits for all the legitimate purposes of such commerce. ^^'^ 4. Terms of Admission — a. Discretion of Legislature — (Ij General Rule. — See note 24. Means and Motive Immaterial. — If it exerted such power from a consid- eration of acts done in another jurisdiction, the motive for the exertion of the lawful power does not operate to destroy the right to call the power into play.^^'' 309-lOa. Power to exclude. — Western Union Tel. Co. i'. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. 309-lOb. Extent of power. — Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. See, also, post, INTERSTATE AND FOREIGN COMMERCE. 310-lla. Expulsion. — As the power of the state to prevent a foreign corporation from continuing to do business is but the correlative of its authority to prevent such corporation from coming into the state, unless, by the act of admission, some contract right in favor of the cor- poration arose, it follows that the pro- hibition against continuing to do business in the state because of acts done beyond the state was none the less a valid exer- tion of power as to a subject within the jurisdiction of the state. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. See post, "Forfeiture of Permit and Expulsion," II, A, 10. 311-14a. Corporations engaged in inter- state commerce. — -Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. See post, INTERST.\TE AND FOREIGN COMMERCE. 313-24. Discretion as to terms. — A state has a right to exclude a foreign corpora- tion from its borders, and to impose con- ditions upon the entry of stich corpora- tions into the state for the purpose of carrying on business therein, provided such conditions are not repugnant to the constitution and laws of the United States. Western Union Tel. Co. v. Cole- man, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. "In Lafayette Ins. Co. v. French, 18 How. 404, 407, 15 L. Ed. 451, the court, speaking by Mr. Justice Curtis, said: 'A corporation created by Indiana can trans- act business in Ohio only with the con- sent, express or implied, of the latter state cBank v. Earle, 13 Pet. 519, 10 L. Ed. 274). This consent may be accom- panied by such conditions as Ohio may think fit to impose; and these conditions must be deemed valid and effectual by other states and by this court, provided they are not repugnant to the constitu- tion or laws of the United States.' " West- ern Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. 315-29a. Means and motive immaterial. — Hammond Packing Co. v. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. In both the refusal to permit the com- ing into the state and the exclusion there- from of a corporation previously admitted because of acts done without the state while it may be said that the acts done out of the state and their anticipated re- flex result may have been the originating cause for the exertion for the lawful au- thority to refuse permission to come into the state, or to revoke such permission previously given, that fact is immaterial in a judicial inquiry as to the right either 585 315-317 FOREIGN CORPORATIONS. Vol. VI. (2) Limitations. — See note 31. The general rule has been laid down that a state may, if it chooses to do so, exclude foreign corporations from its limits, or impose such terms and conditions on their doing business in the state as, in its judgment, may be consistent with the interests of the people. But those were cases in which the particular foreign corporation before the court was engaged in ordinary business, and not directly or regularly in interstate or foreign com- merce. ^^'^ b. License, Deposit, or Payment of Tax. — A corporation of one state, author- ized by its charter to engage in lawful commerce among the states, may go into another state without obtaining a license from it for the purposes of its interstate business, and without liability to taxation there on account of such business.^** to refuse to give or to revoke a permit to do business within the state. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. 315-31. Limitations. — In all the cases in which the supreme court has con- sidered the subject of the granting by a state to a foreign corporation of its con- sent to the transaction of business in the state, it has uniformly asserted that no conditions can be imposed by the state which are repugnant to the constitution and laws of the United States. Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. A state statute which makes the right to a permit dependent upon the surren- der by the foreign corporation of a privi- lege secured to it by the constitution and laws of the United States, must be held to be void. Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. 315-31a. Limitations. — Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. See post, INTER- STATE AN'D FOREIGN COMMERCE. And see ante, "Corporations Engaged in Interstate and Foreign Commerce," II, A, 2, c. Southern R. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536, 540, 30 S. Ct. 287. See, also, Louisville, etc., R. Co. v. Gaston, 216 U. S. 418, 54 L. Ed. 542, 30 S. Ct. 291. In Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1. 13, 24 L. Ed. 708, the case of Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357, was referred. And the court said: "We are aware that, in Paul 7'. Virginia, supra, this court decided that a state might exclude a corporation of another state from its jurisdiction, and that corporations are not within the clause of the constitution which declares that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Art. 4, § 2. That was not, however, the case of a corporation engaged in interstate com- merce; and enough was said by the court to show that, if it had been, very different questions would have been presented." Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355. 30 S. Ct. 190. A state can not, as a condition to the right of a foreign corporation to do in- terstate business, compel the corporation to waive its constitutional exemption from state taxation on its interstate busi- ness and on its property outside of the state, nor can it prescribe as a condition of the corporation's right to do local business that it agree to waive the con- stitutional guaranty of the equal protec- tion of the law, or the guaranty against being deprived of its property otherwise than by due process of law. Pullman & Co. V. Coleman, 216 U. S. 56, 53 L. Ed. 378, 30 S. Ct. 232. 317-34a. Liability to taxation.— West- ern Union Tel. Co. v. Coleman, 216 U. S. 1. 54 L. Ed. 355, 30 S. Ct. 190. "A state can not, under the guise of a license tax, exclude from its jurisdiction a foreign corporation engaged in inter- state commerce." Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. See the title INTER- STATE AND FOREIGN COMMERCE. "In the Western U. Teleg. Case, West- ern Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190, it was held that a state could not impose a tax upon an interstate commerce corporation as a condition of its right to do domestic business within the state, which tax in- cluded within its scope the entire capital of the corporation, without as well as within the borders of the state." South- ern R. Co. V. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. See, also, Louis- ville, etc., R. Co. V. Gaston. 216 U. S. 418, 54 L. Ed. 542, 30 S. Ct. 291. The exaction from a foreign telegraph company for the benefit of the permanent school fund, under the authority of Kan. Gen. Stat. 1901, p. 280, of a "charter fee" of a given per cent of its entire au- thorized capital stock, as a condition of continuing to do local business in the state, is invalid under the commerce and due-process-of-law clauses of the federal constitution, as necessarily amounting to a burden and tax on the company's inter- state business and on its property located or used outside the state. Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. 586 Vol. VI. FOREIGN CORPORATIONS. 318-320 c. Maintenance of Office, and Agent for Service of Process. — See note 35. e. Condition against Removal of Actions to Federal Courts. — See note 44. While the right to do local business within the state may not have been derived from the federal constitution, the right to resort to the federal courts is a cre- ation of the constitution of the United States and the statutes passed in pur- suance thereof.'*'*^ A state statute forfeiting the right of a foreign corporation to do business in the state and subjecting it to penalties in case it should bring a suit in the federal courts, or remove one from the' state courts to the federal courts, is void.^^'' 318-35. Office and agent for service of process. — Many states have provided that foreign corporations, in order to do busi- ness within the state, must make pro- vision for service upon some local agent, or by authority conferred upon some state officer to accept service of sum- mons. And but for such statutes and the authority given by the states to obtain service upon local agents, there could be no recovery upon contracts of such com- panies, unless redress be sought in a dis- tant state where the company may hap- pen to have its home office. Commercial Mut. Acci. Co. V. Davis, 213 U. S. 245, bV, L. Ed. 782. 29 S. Cfe. 445. See post, SUMMONS AND PROCESS. 320-44. Condition against going into federal courts. — State statutes requiring foreign corporations, as a condition of being permitted to do business within the state, to stipulate not to remove into the courts of the United States suits brought against them in the courts of the state, have been adjudged to be unconstitutional and void. Western Union Tel. Co. f. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190, approving Barrow Steamship Co. V. Kane, 170 U. S. 100, 110, 42 L. Ed. 964, 18 S. Ct. 526. "In Southern Pac. Co. v. Denton, 146 U. S. 202, 36 L. Ed. 943, 13 S. Ct. 44. the court considered the question of the validity of a Texas statute relating to foreign corporations desiring to transact business in that state. That statute pro- vided that the application of the corpora- tion to do business in the state should contain a stipulation that the permit be subject to certain provisions of the stat- ute, one of which was that the permit shall become null and void if the corpora- tion, being sued in a state court, should remove the case into a court of the United States upon the ground of the diverse citizenship of the parties or of local prejudice against such corporation. Dealing with that point, this court, speak- ing by Mr. Justice Gray, said: 'But that statute, requiring the corporation, as a condition precedent to obtaining a per- mit to do business within the state, to surrender a right and privilege secured to it by the constitution and laws of the United States, was unconstitutional and void, and could give no validity or effect to any agreement or action of the cor- poration in obedience to its provisions, citing Insurance Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365; Barron v. Burnside, 121 U. S. 186, 30 L. Ed. 915, 7 S. Ct. 931; Texas Land & Mortg. Co. v. Worsham, 76 Tex. 556, 13 S. W. 384. See, also, to the same effect, Martin v. Baltimore, etc., R. Co., 151 U. S. 673, 684, 38 L. Ed. 311. 14 S. Ct. 533; St. Clair v. Cox, 106 U. S. 350, 356, 27 L. Ed. 222, 1 S. Ct. 354; Bar- row Steamship Co. v. Kane, 170 U. S. 100, 111, 42 L. Ed. 964, 18 S. Ct. 526.'" Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. 320-44a. Herndon v. Chicago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633. 320-44b. Herndon v. Chicago, etc., R. Co., 218 U. S. 135, 54 L. Ed. O'lO, 30 S. Ct. 633. citing Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Pullman Co. v. Coleman, 216 U. S. 56, 53 L. Ed. 378, 30 S. Ct. 232; Ludwig V. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280, and Southern R. Co. V. Greene, 216 U. S. 400, 54 L. Ed. 536, 30 S. Ct. 287. The license or permit to do local busi- ness, given to a foreign company which has come into the state in compliance with its laws, and has required, under the sanction of the state, a large amount of property within its borders, can not be revoked under the authority of Act, Mo. March 13, 1907 (Laws 1907, p. 174), and the company subjected to penalties be- cause it brings a suit in a federal court, or removes a suit from a state court to a federal court, especially where a domes- tic railway company may bring suit in a federal court, or, in a proper case, re- move one thereto, without forfeiting its right to do business, or incurring a lia- bility to penalties. (1910), Herndon v. Chicago, etc.. R. Co.. 218 U. S. 135. 54 L. Ed. 970, 30 S. Ct. 633; Roach v. Atchison, etc., R. Co., 218 U. S. 159, 54 L. Ed. 978, 30 S. Ct. 639. Affirming decree, Chicago. R. I. & P. Ry. Co. V. Swanger (C. C. 1908). 157 F. 783; Roach v. .\tchison, etc.. R. Co., 218 U. S. 159. 54 L. Ed. 978. 30 S. Ct. 639. 321 FOREIGN CORPORATIONS. Vol. VI. g. Filing Statement of Condition. — See post, "Prohibiting Suit in State Courts," II, A, 4, h. h. Prohibiting Suit in State Courts. — See post, "Effect of Noncompliance with Terms," II, A, 5. The doing of a single act of business within a state by a foreign corporation when there was no purpose to do any other business or have a place of business in the state does not constitute doing business within the state within the meaning of a statute prohibiting the maintenance of an ac- tion in the state courts by a foreign corporation not authorized to do business therein.'* ^"^ 5. Effect of Noncompliance with Terms. — See ante, "Condition against Removal of Actions to Federal Courts," II, A, 4, e. Effect on Contracts. — The supreme court of the United States has distinctly held that a contract made by a foreign corporation with a citizen of another state is not necessarily void because the corporation had not complied with the laws of such other state, imposing conditions upon it as a prerequisite to the lawful transaction of business therein.'*^" It has been so held where the penalty prescribed for noncompliance with the conditions precedent to doing business was that the officers, agents and stockholders should be personally liable on any contracts of such foreign corporations as might be in default;'*^'' and where the 321-45a. Prohibiting suit in state court. — International, etc., Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 673, 30 S. Ct. 481, citing Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 734, 28 L. Ed. 1137, 5 S. Ct. 739. What constitutes carrying on business within state. — A foreign corporation con- ducting a correspondence school, whose business involves the solicitation of stu- dents in Kansas by local agents, who are also to collect and forward to the home office the tuition fees, and the systematic intercourse by correspondence between the company and its scholars and agents, wherever situated, and the transportation of the needful books, apparatus, and pa- pers, is doing business within the state, within the meaning of Gen. St. Kan. 1901, § 1283, which prohibits the maintaining of an action in the Kansas courts by any corporation doing business in the state which has not filed with the secretary of state the statement of its condition, pro- vided for by that section. Judgment (1907), 91 P. 74, 76 Kan. 328, reversed. International, etc., Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481. "While the supreme court of Kansas has distinctly held that the statute did not imbrace single transactions that were only incidentally necessary to the busi- ness of a foreign corporation, it also ad- judged that the business done by the text- hook company in Kansas was not of that kind, but indicated a purpose to regularly transact its business from time to time in Kansas, and therefore it was to be re- garded as doing business in that state, within the meaning of the statute; and that it 'was the intention of the legislature rhat the state should reach every con- tinuous exercise of a foreign franchise." " International, etc., Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481. 321-48a. Effect on contracts. — Lupton's Sons Co. v. Automoljile Club, 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711. 321-48b. Officers, agents and stock- holders personally liable. — Lupton's Sons Co. V. Automobile Club, 225 U. S. 489, 36 L. Ed. 1177, 32 S. Ct. 711. "In Fritts v. Palmer, ]32 U. S. 282, 33 L. Ed. 317, 10 S. Ct. 93, a tract of land in Colorado had been conveyed to a Mis- souri corporation in disregard of consti- tutional and statutory provisions which prohibited a foreign corporation from purchasing or holding land in that state until it should acquire the right to do business therein by fulfilling certain pre- scribed conditions. Here the Missouri corporation had unquestionably violated the laws of Colorado when it purchased the property without having previously designated its place of business and an agent, as required by the Colorado stat- ute. The only penalty which that statute provided, however, for noncompliance with these provisions, was that the offi- cers, agents, and stockholders should be personally liable on any contracts of such foreign corporation as might be in de- fault. The supreme court held that the fair implication to be that, in the judg- ment of the Colorado legislature, this penalty was ample to effect the object of the statute prescribing the terms upon which foreign corporations might do business in that state; and hence the ju- diciary ought not to inflict the additional and harsh penalty of forfeiting the estate which had been conveyed to the Missouri corporation. In other words, the court refused to treat the conveyance as void, notwithstanding that it was made to a corporation which was forbidden to re- ceive it." Lupton's Sons Co. f. Automo- bile Club, 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711. 588 Vol. VI. FOREIGX CORPORATIONS. 321 penalty prescribed was a disability to sue in the courts of the state upon any con- tract made by such corporation in the state. In this view, despite its transaction of business without authority, the foreign corporation can sue upon its contracts in any court of competent jurisdiction other than a court of the state prohibiting such suit.^^'' 8. Regulation and Control. — Subject to Laws and Policy of State. Where a foreign corporation has complied with the provisions of law entitling 321-48C. Prohibition against suit in state courts. — The prohil)ition against suit in the New York courts, which is the only penalty prescribed for a disregard by a foreign corporation of the provisions of X. Y. Laws 1890, chap. 563, § 15, pro- hibiting the doing of local business by a foreign corporation without a certificate of authority, does not make the contract void, but it remains valid and enforceable by suit in the federal courts. Lupton's Sons Co. z'. Automobile Club, 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711. See, also, ante, '"Prohibiting Suit in State Courts," II, A, 4, h. '"In Mahar v. Harrington Park Villa Sites, 204 N. Y. 231. 97 N. E. 587, the court of appeals of New York has declared that a contract made by a foreign corporation doing business within the state without certificate of authority is not absolutely void; that the only penalty prescribed by the general corporation law for a disre- gard of the provisions of § 15 is a disabil- ity to sue upon such a contract in the courts of New York; and that the contract remains valid and effective in all other re- spects.'" Lupton's Sons Co. v. Automobile Club, 225 U. S. 489. 56 L. Ed. 1177, 32 S. Ct. 711. "Accordingly, it was held by the court of errors and appeals of New Jersey that a suit might be brought by the corpora- tion in that state upon a contract made in New York, where it was doing busi- ness without the prescribed certificate. Alleghany Co. v. Allen, 69 N. J. L. 270, 55 Atl. 724. The court conceded the gen- eral rule both in New Jersey and New York to be that a contract void by the law of the state where made would not be enforced in the state of the forum. But it was held that the New York statute did not in terms declare the contract void; it provided that no such action should be maintained in that state." Lupton's Sons Co. V. Automobile Club, 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711. "In dismissing the writ of error to re- view that judgment (Allen v. Alleghanv Co., 196 U. S. 458, 465, 49 L. Ed. 551, 25 S. Ct. 311), this court commented upon the decision of the New York court in the case of the Neuchatel Asphalte Co. z\ New York, 155 N. Y. 373, 49 N. E. 1043, which rose under the statute in an earlier form, the section (15) of the general cor- poration law then providing that the for- eign corporation should not maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate. This court said: 'The court of appeals in that case held that the purpose of the act was not to avoid contracts, but to provide effect- ive supervision and control of the Inisi- ness carried on by foreign' corporations; that no penalty for noncompliance was provided, except the suspension of civil remedies in that state, and none others would be implied. This corresponds with our rulings upon similar questions. Fritts V. Palmer, 132 U. S. 282, 33 L. Ed. 317, 10 S. Ct. 93.' " Lupton's Sons Co. v. Au- tomobile Club, 225 U. S. 489, 56 L. Ed 1177, 32 S. Ct. 711. "It must follow, upon the similar con- struction of § 15, as it read at the time of the transaction in question, that the Lup- ton Company, whether or not it was doing a local business in New York, had the right to bring this suit in the federal court. The state could not prescribe the qualifi- cations of suitors in the courts of the United States, and could not deprive of their privileges those who were entitled under the constitution and laws of the United States to resort to the federal courts for the enforcement of a valid con- tract. Union Bank z'. Vaiden, 18 How. 503, 507, 15 L. Ed. 472; Hyde v. Stone, 20 How. 170, 175, 15 L. Ed. 874; Cowles v. Mercer County, 7 Wall. 118, 122, 19 L. Ed. 86; Insurance Co. z'. Morse, 20 Wall. 445, 22 L. Ed. 365; Barron z: Burnside, 121 U. S. 186, 30 L. Ed. 915, 7 S. Ct. 931; Law- rence V. Nelson, 143 U. S. 215, 36 L. Ed. 130, 12 S. Ct. 440; In re Tyler, 149 U. S. 164, 189, 37 L. Ed. 689, 13 S. Ct. 785; Bar- row Steamship Co. v. Kane, 170 U. S. 100, 111, 42 L. Ed. 964. 18 S. Ct. 526. The state in the statute before us made no such at- tempt. The only penalty it imposed, to quote again from the jNIahar Case, was a disability to sue 'in the court of New York.' Before this decision of the state court, the circuit court of appeals for the second circuit reached the same conclusion as to the meaning of the statute, and up- held the right of the foreign corporation to sue in the federal court. Johnson 7'. New York Breweries Co., 101 C. C. A. 639, 178 Fed. 513." Lupton's Sons Co. z'. Auto- mobile Club, 225 U. S. 489, 56 L. Ed. 1177. 32 S. Ct. 711. 589 327 FOREIGN CORPORATIONS. Vol. VI. it to admission to a state, and is doing business under its authority, so far as pertains to business done therein and ah matters connected therewith, it is amen- able to the laws of the state, and in duty bound to obey them as though it were a domestic corporation.^^'* Access to Books and Papers. — The books and papers of a foreign corpo- ration, pertaining to business done in a certain state under authority of its laws, which are required as evidence in legal proceedings therein, though taken out- side the state, are still within the jurisdiction of its courts in contemplation of law, since the corporation is within its jurisdiction, and the books and papers are within the control of the corporation and belong in that state for all legiti- mate purposes of evidence required by its courts.^ ^^ 9. Validating Contracts Made Prior to Admission to State. — Contracts of a foreign corporation which have been adjudged invalid because of its fail- ure to register within the state before making such contracts are embraced by the provisions of Act Pa. May 23, 1907 (P. L. 205), legalizing contracts of foreign corporations which, after making such contracts, but prior to the passage of the act, have established a known place of business in the state, and designated authorized agents for the transaction of its business, and, before commencing suit, have paid all taxes that would have accrued if they had complied with the law at the time of beginning business.^ ^'^ 10. ForFe;iture of Permit and Expulsion. — See ante, "In General," II, A, 2, a. See post. Quo Warranto. Receivership. — The appointment by a state court of a receiver for a foreign corporation whose permit to do business has been forfeited for violation of the state anti-trust laws is not invalid because the judgment of forfeiture permits the corporation to continue its interstate business, where the order appointing the receiver is not rested solely upon Act April 11, 1907 of Texas (Laws 1907, p. 175, c. 87), making special provisions for carrying out judgments under the anti-trust laws, but also upon a statute in force before the permit to do business was granted, empowering such appointment.*^' ^"^ Jurisdiction of State Court. — Jurisdiction of a state court of the property of a foreign corporation attaches so as to prevent interference on the part of a federal court when a receiver of the property of such corporation has been ap- pointed, the judicial process served, and the receiver duly qualified, although such receiver has not taken actual possession of the property.^ ^'^ The possible 327-61a. Subject to laws and policy of same contract, where the corporation has state. — In re Consolidated Rendering Co., brought itself within the provisions of Pa. 06 Atl. 790, 80 Vt. 65, judgment affirmed. Act May 23, 1907, legalizing contracts Consolidated, etc., Co. v. Vermont, 207 U. made by foreign corporations which, after S. 541, 52 L. Ed. 327, 28 S. Ct. 178. making such contracts, but prior to the 327-61b. Access to books and papers. — passage of act, have established a known In re Consolidated Rendering Co., 66 Atl. place of business in the state, and designated 780, 80 Vt. 55, affirmed. Consolidated, etc., authorized agents for the transaction of its Co. V. Vermont, 207 U. S. 541, 52 L. Ed. business, and before cominencing suit, 327, 28 S. Ct. 178. have paid all taxes that would have ac- 327-610. Validating contracts made crued if they had complied with the laws prior to admission. — West Side, etc.. R. at the time of beginning business. West Co. V. Pittsburg Constr. Co., 219 U. S. 92, Side, etc., R. Co. v. Pittsburg Constr. Co., 55 L. Ed. 107, 31 S. Ct. 196, affirming Pitts- 219 U. S. 92. 55 L. Ed. 107, 31 S. Ct. 196. burg Const. Co., 75 A. 1029, 227 Pa. 90. 327-61d. Forfeiture of right— Receiver- The judgment of a federal court dis- ship. — Palmer z'. Texas, 212 U. S. 118, 53 missing an action by a foreign corporation L. Ed. 435, 29 S. Ct. 230, modifying Texas because of its failure to register within v. Palmer, 158 F. 705. See post, RECEIV- the state before entering into the contract ERSHIP. in suit is not denied full faith and credit 327-61e. Jurisdiction of state court.— by a decision of a state court holding that Palmer 7'. Texas, 212 U. S. 118, 53 L. Ed. such judgment is not a bar to a second ac- 435, 29 S. Ct. 230. tion between the same parties upon the 590 Vol. VI. FOREIGN EXTRADITION. 327-334 danger of prosecutions and interference pending an appeal with supersedeas from an order of a state court appointing a receiver of the property of a foreign corporation whose permit to do business in the state has been forfeited for vio- lating the state anti-trust laws, wall not justify a federal court in interfering with the state court's custody of the res, acquired by the appointment and quali- fication of the receiver.*^ 1* B. Powers— 1. In General.— To Contract.— See ante, "Efifect of Noncom- pliance with Terms," II, A, 5. III. Actions and Suits by and against. A. Power to Sue. — See ante. "Effect of Noncompliance with Terms," II, -^' ^- . . . B. Liability to Suit. — A foreign corporation, in order to be subject to the jurisdiction of a court, must be doing business within the state of the court's jurisdiction, and service must there be made upon some duly authorized ofificer or agent.'^^'^ C. Jurisdiction. — See ante, "Effect of Noncompliance with Terms," II, A^ 5; "Liability to Suit," III, B. FOREIGNER.— See note la. FOREIGN EXECUTORS AND ADMINISTRATORS.— See ante. Execu- tors AND Administrators, p. 564. FOREIGN EXTRADITION.— See ante. Extradition, p. 571. 327-61f. Interference by federal court. — Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. The jurisdiction of a state court over the res, acquired by the appointment and qualification of a receiver of the property of a foreign corporation, is not lost, so as to permit interference on the part of a federal court, because of an appeal with supersedeas from the order appointing the receiver, where the state courts hold that the effect of the appeal and supersedeas bond is merely to suspend the order ap- pointing the receiver pending the deter- mination of the appeal. Palmer z'. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. 330-75a. Liability to suit. — Herndon- Carter Co. v. Norris, Son & Co., 224 U. S. 496, 56 L. Ed. 857, 32 S. Ct. 550, following St. Clair V. Cox, 106 U. S. 350, 27 L. Ed. 222, 1 S. Ct. 354; Goldey v. Morning News, 156 U. S. 518, 39 L. Ed. 517, 15 S. Ct. 559, and Peterson v. Chicago, etc., R. Co., 205 U. S. 364, 51 L. Ed. 841. 27 S. Ct. 513. "That.it is essential, in order to obtain jurisdiction over a foreign corporation having * * * neither property nor agent in the state, that it be doing business in the state, is settled bv numerous decisions of this court. St. Clair v. Cox, 106 U. S. 350, 27 L. Ed. 222, 1 S. Ct. 354; Goldey v. Morning News, 156 U. S. 518, 39 L. Ed. 517, 15 S. Ct. 559; Barrow Steamship Co. V. Kane, 170 U. S. 100, 42 L. Ed. 964, 18 S. Ct. 526; Connecticut Mut. L. Ins. Co. v. Spratley, supra; Conley v. Mathieson Al- kali Works, 190 U. S. 406, 47 L. Ed. 1113,. 23 S. Ct. 728; Pennsylvania, etc.. Fire Ins. Co. V. Meyer, 197 U. S. 407, 49 L. Ed. 810, 25 S. Ct. 483; Peterson v. Chicago, etc., R. Co., 205 U. S. 364, 51 L. Ed. 841, 27 S. Ct. 513." Commercial Mut. Acci. Co. v. Davis, 21 U. S. 245, 53 L. Ed. 782, 29 S. Ct. 445. "Previous cases in this court have not defined the extent of the business neces- sary to the presence of a foreign corpora- tion in the state for the purpose of a valid service; it is sufficient if it is doing' busi- ness therein." Commercial Mut. Acci. Co. V. Davis, 213 U. S. 245, 53 L. Ed. 782, 29 S. Ct. 445. 334-la. Foreigners as used in Treaty of Paris. — In article IX of the Treaty of Paris, 30 Stat. 1754, provided that "Span- ish subjects, natives of the peninsula, re- siding in the territory over which Spain by the present treaty relinquishes or cedes her* sovereignty, * * * have the right to carry on their industry, commerce and professions, being subject in respect thereof to such laws as are applical>le to other foreigners." The words "such laws as are applicable to other "foreigners," referred not to the Spanish law, but to the laws enacted by the new sovereignty. Spaniards only became foreigners after the cession of the islands, and it is ob- vious that the words meant such laws as shall be applicable to other foreigners. Bosque V. United States, 209 U. S. 91. 96. 52 L. Ed. 698, 28 S. Ct. 501. See post,. TREATIES. 591 338-339 FOREIGN JUDGMENTS, ETC. Vol. VI. FOREIGN JUDGMENTS, RECORDS AND JUDICIAL PROCEEDINGS. II. Judgments, Records and Judicial Proceedings of Courts of Other States, 592. B. Operation and Conclusiveness, 592. 2. Under Provisions in Articles of Confederation, Constitution and Federal Statutes as to Full Faith and Credit, 592. a. Provisions Stated, 592. b. Provisions Construed and Applied, 593. (2) By Whom and to What Records and Judicial Pro- ceedings Faith and Credit Must Be Accorded, 593. (a) In General, 593. (b) Judgments of State Courts in Other States or Territories, 593. (c) Judgments of State Courts in Federal Courts, 593. (d) Judgments of Federal Courts in State Courts, 593. (3) Extent of Faith and Credit Required to Be Given, 593. (4) Application of Provisions as Dependent upon Exist- ence of Actual Valid Judgment or Decree, 594. (b) Inquiry as to Jurisdiction, 594. (e) Effect of Irregularities or Errors in Decision, 594. (5) Application as Dependent upon Nature of Adjudica- tion, 594. (a) General Rule, 594. D. Enforcement, 595. 1. Necessity for New Suit, 595. 4. Pleading, 595. c. Pleadings by \\'ay of Defense, 595. (1) Matters Pleadable, 595. CROSS REFERENCES. See the title Foreign Judgments, Records and Judicial Procee:dings, vol. 6, p. 335, and references there given. II. Judgments, Records and Judicial Proceedings of Courts of Other States. B. Operation and Conclusiveness — 2. Under Provisions in Articles of Confederation, Constitution and Federal Statutes as to Fule Faith and Credit — a. Prox'isions Stated. — See notes 10, 12. 338-10. Provisions of the United States Bigelow v. Old Dominion, etc., Min. Co., Const., art. 4, § 1, as to full faith and 225 U. S. Ill, 56 L. Ed. 1009, 32 S. Ct. credit.— Everett v. Everett, 215 U. S. 203, 641. 54 L. Ed. 158, 30 S. Ct. 70; ^tna Life Constitutionality of Rev. Stat., § 906, Ins. Co. V. Tremblay, 223 U. S. 185, 56 giving faith and credit to territorial legis- L. Ed. 398, 32 S. Ct. 309; Converse v. lation. — Congress had the power to enact Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 Rev. St. U. S. 1901, § 906 (U. S. Comp. S. Ct. 415; Bigelow v. Old Dominion, etc., St. 1901, p. 677), under which territorial Min. Co., 225 U. S. Ill, 56 L. Ed. 1009, legislation must be given, by every court 32 S. Ct. 641. within the United States, the same faith 339-12. Provision of Act of Congress and credit which it has by law or usage of May 26, 1790, c. 11, stat. 122 (now § 905 in the court of the territory enacting it. of Revised Statutes).— Tilt v. Kelsey, 207 Judgment (Tex. Civ. App. 1907), 99 S. U. S. 43, 52 L. Ed. 95, 28 S. Ct. 1; Faunt- \V. 190, affirmed. Atchison, etc., R. Co. leroy v. Lum, 210 U. S. 230, 52 L. Ed. v. Sowers, 213 U. S. 55, 53 L. Ed. 695, 1039, 28 S. Ct. 641; Converse v. Hamilton, 29 S. Ct. 397. 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415; 592 Vol. \'I. FOREIGX JUDGMEXTS, ETC. 342-345 b. Proz'isions Construed and Applied — (2) By Whom and to What Records and Judicial Proceedings Faith and Credit Must Be Accorded — (a) In General. — See note 23. (b) Judgments of State Courts in Other States or Territories. — See note 25. ( c ) Judgments of State Courts in Federal Courts. — See note 29. (d) Judgments of Federal Courts in State Courts. — See note 31. (3 ) Extent of Faith and Credit Required to Be Given. — See note 36. 342-23. The constitution of a state must be given full faith and credit in the courts of another state, and the duty to do so is as obligatory as in the case of judicial proceedings of such other state. Smithsonian Institution v. St. John, 214 U. S. 19, 53 L. Ed. 892, 29 S. Ct. 601. Statutes of other states. — The denial of the validity of the statute of another state, and of the binding force of such statute to control the right of action as- serted is the denial of a right under the constitution of the United States. Atchi- son, etc., R. Co. V. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. The full faith and credit demanded by U. S. Rev. Stat.. § 906, U. S. Comp. Stat- 1901, p. 677, is not given to N. M. Act of March 11, 1903, governing actions for per- sonal injuries received in that territory, where a recovery is permitted in a state court on such a cause of action, with no showing of a compliance with the pre- liminaries of notice and demand presented by the territorial statute. El Paso, etc., R. Co. V. Gutierrez, 215 U. S. 87, 54 L. Ed. 106. 30 S. Ct. 21. Construction of statute. — The mere construction by a state court of the stat- ute of another state, without questioning its validity, does not deny to it the full faith and credit demanded by the consti- tutional provision. Smithsonian Institu- tion V. St. John, 214 U. S. 19, 53 L. Ed. 892, 29 S. Ct. 601. Where the supreme court construes the statute of another state in the light of the opinions of the courts of that state, it gives full faith and credit to the public acts and judicial proceedings of such state; and, because it is construed to a defeated party's detriment, it gives him no right to claim that the constitution of the United States has been violated in such construction. (Civ. App. 1904) New York Life Ins. Co. v. English. 79 S. W. 616, dismissed. New York Life Ins. Co. V. English. 199 U. S. 610, 50 L. Ed. 332. 342-25. Judgments of state courts in other states or territories. — A judgment enforceable in the state where rendered must be given effect in another state, un- der the full faith and credit clause of the federal constitution, although the modes of procedure to enforce its collection may not be the same in both states. C1910) Sistare v. Sistare, 218 U. S. 1, 54 L. Ed. 905, 30 S. Ct. 682, reversing judg- 12 U S Enc— 38 593 ment (1907) 66 A. 772, 80 Conn. 1, 125 Am. St. Rep. 102. 343-29. Effect of judgments of state courts in federal courts. — A judgment of a state court sustaining the exemption claimed by a railway company under its charter from any taxation except one based on its net profits, which, under the local law of the state, is not res judicata as to taxes for other years than the one directly involved, can be accorded no greater efficacy in the federal courts. De- cree, Georgia R. & Banking Co. v. Wright (C. C. 1904) 132 F. 912, affirmed. Wright f. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 344-31. .A state court can not, by de- cree, compel one of two connecting car- riers maintaining live stock depots at or near Louisville, as points of delivery for stock having that as their general desti- nation, to transfer and deliver at the point of physical intersection "any and all live stock or other freight coming over its lines in Kentucky," consigned to the oth- er's depot or persons doing business there, and to change destination to such depot on request at any station, and par- ticularly at its "break-up j-ards" in South Louisville, where a federal court previ- ously dismissed a bill in a similar suit be- tween the parties, dealing only w-ith in- terstate shipments. Judgment (1906) 97 S. W. 778, 30 Ky. Law Rep. 18, reversed. Louisville, etc., R. Co. v. Central Stock- yards Co., 212 U. S. 132, 53 L. Ed. 441, 29 S. Ct. 246. 345-36. To be given same effect as in courts of state, etc., from which taken. — Tilt V. Kelsey, 207 U. S. 43, 52 L. Ed. 95, 28 S. Ct. 1; Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749. 32 S. Ct. 415. Judgments of federal courts in state courts. — A judgment of the supreme court of the United States to the effect that a policy of fire insurance could not be re- covered upon as it stood nor be helped out by anj' doctrine of the common law is not denied full faith and credit by an adjudication of a state court that such judgment is not a bar to a suit in equity to reform the policy so that it will ex- press consent to concurrent insurance, and to recover upon such policy as re- formed. Decree, Grand View Bldg. Ass'n V. Northern Assur. Co. (Neb. 1905) 102 N. W. 246, affirmed. Northern Assur. 348-358 FOREIGN JUDGMENTS, ETC. Vol. VL (4) Application of Provisions as Dependent upon Existence of Actual Valid Judgment or Decree — (b) Inquiry as to Jurisdiction. — See note 50. (e) Effect of Irregularities or Errors in Decision. — See note 70. (5) Application as Dependent upon Nature of Adjudication — (a) General Rule. — See note 76. Co. V. Grand View Bldg. Ass'n, 203 U. S. 106, 51 L. Ed. 109, 27 S. Ct. 27. The judgment of a federal court dis- missing an action by a foreign corpora- tion because of its failure to register within the state before entering into the contract in suit is not denied full faith and credit by a decision of a state court hold- ing that such judgment is not a bar to a second action between the same parties upon the same contract, where the cor- poration has brought itself within the provisions of Act Pa. May 23, 1907 (P. L. 205), legalizing contracts made by for- eign corporations, which, after making such contracts, but prior to the passage of the act, have established a known place of business in the state, and designated authorized agents for the transaction of its business, and before commencing suit, have paid all taxes that would have ac- crued if they had complied with the laws at the time of beginning business. (1911) West Side, etc., R. Co. v. Pittsburgh Constr. Co., 219 U. S. 92, 55 L. Ed. 107, 31 S. Ct. 196, affirming judgment. Pitts- burg Const. Co. V. West Side Belt R. Co. (1910), 75 A. 1029, 227 Pa. 90. 348-50. Right of inquiry as to jurisdic- tion over person or subject matter now unquestioned. — Tilt v. Kelsey, 207 U. S. 43, 52 L. Ed. 95, 28 S. Ct. 1; Brown v. Fletcher's Estate, 210 U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702; Fauntleroy v. Lum, 210 U. S. 230, 52 L. Ed. 1039, 28 S. Ct. 641. The full faith and credit due the pro- bate proceedings of the New Jersey courts do not require that the courts of New York shall be bound by the adjudi- cation of the New Jersey courts on the question of domicile. Order, In re Tilt's Estate (1905), 75 N. E. 1134, 182 N. Y. 557, reversed. Tilt v. Kelsey, 207 U. S. 43, 52 L. Ed. 95, 28 S. Ct. 1. A decree entered, after an order of re- vivor, against the administrator with the will annexed of a nonresident, who had died pending suit, confirming an award in arbitration proceedings had in the suit under a rule of court, does not bind the nonresident executors and legatees, who did not appear and were not validly served with process, although the stipu- lation for submission to arbitration pro- vided that the arbitration should continue in case of the death of either party, and that his successors and legal representa- tives should be bound by the final award. Judgment (1906), 109 N. W. 686, 140 Mich. 401, affirmed. Brown v. Fletcher's Estate, 210 U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702. A decree of a federal circuit court sit- ting in New York, dismissing a suit in personam brought against one of two joint tort feasors, is not denied full faith and credit by the refusal of a Massachu- setts court to give it effect as a bar to a suit upon the same facts against the other, who was not a resident of New York, and not a party to the first suit, where such refusal was rested upon the ground that, under the general law, what- ever might be the rule in New York, the relationship between two joint tort fea- sors was not such as to make the one not sued a party by either privity or repre- sentation, this being a jurisdictional ques- tion which the Massachusetts court was at liberty to determine for itself. Bige- low V. Old Dominion, etc., Min. Co., 225 U. S. Ill, 56 L. Ed. 1009, 32 S. Ct. 641. 356-70. Not impeachable as based on mistake of law. — A judgment is conclusive as to all the media concludendi, and can not be impeached either in or out of the state by showing that it was based upon a mistake of law. American Exp. Co. v. Mullins, 212 U. S. 311, 53 L. Ed. 525, 29 S. Ct. 381; Fauntleroy v. Lum, 210 U. S. 230, 52 L. Ed. 1039, 28 S. Ct. 641. Holding an express company liable to the consignor of a shipment of intoxicat- ing liquors which were seized and de- stroyed under a default judgment ren- dered in a court of another state in a proceeding in the nature of one in rein denies to such judgment the full faith and credit to which it is entitled under the constitution and laws , of the United States, where the company notified the consignor of the seizure in time, and re- ceived from him an assurance that he would contest its legality. American Exp. Co. Z'. Mullins, 212 U. S. 311, 53 L. Ed. 525, 29 S. Ct. 381. 358-76. Adjudications as to probate of will. — The conclusiveness attending, un- der the New Jersey practice, the probate of a will, the settlement of the executors' account, and the final distribution of the estate pursuant to orders which the court made after having decreed that all those who had neglected to bring in their claims were forever barred from their ac- tion therefor against the executors, ren- ders repugnant to the full faith and credit clause of the federal constitution where no attack on the jurisdiction of the New Jersey courts was made, the subsequent assessment, under Laws N. Y. 1896, p. 869, c. 908, upon the personal estate of 594 Vol. VI. FOREIGN LAI VS. 362-376 D. Enforcement — 1. Necessity for New Suit. — See note 91. 4. Pleading — c. Pleadings by Way of Defense — (1) Matters Pleadable. — See note 2. FOREIGN LAWS. I. What Are Foreign Laws, 595. A. Laws of the States, 595. 2. In State Courts, 595. II. Foreign Laws in Evidence, 595. A.Judicial Notice, 595. 2. Laws of Territories Ceded to the United States, 595. B. Proof of Foreign Laws, 595. L In General, 595. ': III. Extraterritorial Effect of Foreign Laws, 595. CROSS REFERENCES. See the title Foreign Laws^ vol. 6, p. 374, and references there given. In addition, see ante. Common Law, p. 245. I. What Are Foreign Laws. A. Laws of the States — 2. In State Courts. — But the duty of giving full force and effect to the constitution of a state by another state is as obligatory as the similar duty in respect to the judicial proceedings of that state. ^^ II. Foreign Laws in Evidence. A. Judicial Notice — 2. Laws of Territories Ceded to the United States. — See note 7. B. Proof of Foreign Laws — 1. In General. — See note 9. III. Extraterritorial Effect of Foreign Laws. For a detailed discussion of this subject, see ante. Conflict of Laws, p. 250. the decedent as a resident of New York, any court. Fauntleroy v. Lum, 210 U. S. of a succession tax, which, under section 230, 52 L,. Ed. 1039, 28 S. Ct. 641. 222 of that act, is made a lien on the prop- 375-3a. Constitution of another state, erty and a personal obHgation of the — Smithsonian Institution v. St. John, 214 transferees and executors. Order, In re U. S. 19, 53 L. Ed. 892, 29 S. Ct. 601. Tilt's Estate (1905), 75 N. E. 1134, 182 376-7. Spanish law.— The federal su- N. Y. 557, reversed. Tilt v. Kelsey, 207 preme court will take judicial notice of U. S. 43, 52 L. Ed. 95, 28 S. Ct. 1. the Spanish law, as far as it affects the 362-91. Not a judgment enforceable by insular possession of the United States. execution.— Fall t'. Eastin, 215 U. S. 1, 54 Ponce v. Roman CathoHc Apostolic L Ed 65 30 S Ct 3 Church, 210 U. S. 296, 53 L. Ed. 1068, 28 366-2. Illegality of original cause of ac- S. Ct. 737. tion.— The Mississippi courts can not The history of Porto Rico and its legal deny to a judgment of a Missouri court, and political institutions, up to the time based upon an award in arbitration pro- of 'ts annexation to the United States, ceedings in Mississippi, the full faith and are matters which must be recognized by credit secured by Const. U. S. art. 4, § 1, the federal supreme court. Ponce v. to the judgments of sister states, because Roman Catholic Apostolic Churchy 210 the original controversy grew out of a U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. gambling transaction in futures in Mis- 376-9. Proof of foreign laws in general. sissippi, which is made a misdemeanor by — The federal courts can not assume with- Ann. Code Miss. 1892, §§ 1120, 1121, 2117, out proof that, under the law of Cuba, which further provide that contracts of like that of the forum, a promise to re- that character shall not be enforced by pair or replace defective machinery, when 595 381-391 FORWARDING AGENT. Vol. VI. FOREIGN MINISTERS.— See ante, Ambassadors and Consults, p. 256. FOREST RESERVE.— See post, Public Lands. FORFEITURE. — See post, Mines and Minerals; Penalties and For- feitures. FORGED. — See post, Forgery and Countereeiting. FORGERY AND COUNTERFEITING. I. Forgery, 596. A. Definition and General Consideration, 596. 3. Injury by Forgery, 596. CROSS REFERENCES. See the title Forgery and Counterfeiting, vol. 6, p. 380, and references there given. As to recovery back of payments on forged paper, see ante, Banks and Banking, p. 184. As to extradition of a person for the crime of forgery, see ante. Extradition, p. 571. I. Forgery. A. Definition and General Consideration — 3. Injury by Forgery. — An actual financial or property loss need not be charged or proved in order to make out a case under Rev. St. § 5418 (U. S. Comp. St. 1901, p. 3666)^ of forging vouchers required upon examination by the civil service commission of the United States, certifying to the character, physical capacity, etc., of the ap- plicant, and presenting the same to the commission.-^ FORMER ACQUITTAL AND CONVICTION.— See ante. Autrefois, Ac- quit AND Convict, p. 161. FORMER RECOVERY.— See post. Res Adtudicata. FORTHCOMING AND DELIVERY BONDS,— See the title Forthcoming AND Delivery Bonds, vol. 6, p. 387, and references there given. In addition, as to gaining a redelivery bond in an action of replevin, see post, Replevin. FORWARDING AGENT.— See note 391 -2a. notified by an employee of the defect, throws upon the master the risk of in- jury to such employee from such defect until the time for performance has ex- pired, or that it does away with or leaves to the jury what otherwise would be neg- ligence as a matter of law. Cuba R. Co. r. Crosby, 222 U. S. 473, 56 L. Ed. 274, 32 S. Ct. 132. reversing judgment (1909) 170 F. 369, 95 C. C. A. 539. See ante, COMMON LAW, p. 245. "In the case at bar the court was deal- ing with the law of Cuba, a country in- heriting the law of Spain, and, we may presume, continuing it with such modifi- cations as later years may have brought. There is no general presumption that that law is the same as the common law. We properly may say that we all know the fact to be otherwise. Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co., 164 Fed. 869. Whatever presumption there is purely one of fact, that may be corrected by proof. Therefore, the pre- sumption should be limited to cases in which it reasonably may be believed to express the fact. Generally speaking, as between two common-law countries, the common law of one reasonably may be presumed to be what it is decided to be in the other, in a case tried in the latter state. But a statute of one would not be presumed to correspond to a statute in the other, and when we leave common- law territory for that where a different system prevails, obviously, the limits must be narrower still." Porto Rico Sugar Co. V. Lorenzo, 222 U. S. 481, 56 L. Ed. 277, 32 S. Ct. 132. 381-2a. Injury from forgery. — United States V. Plyler, 222 U. S. 15, 56 L. Ed. 70, 32 S. Ct. 6. 391-2a. Business of forwarding agents. — "The business so carried on by these agents was thus described by Mr. Com- missioner Knapp in his dissenting opin- ion, to which we have previously referred (14 L C. C. Rep. 440): 'The business of 596 Vol. VI. FRAUD AND DECEIT. 391 FOURTEENTH AMENDMENT.— See ante. Civil Rights, p. 236; Consti- tutional Law, p. 264. FRANCHISE. — See ante, Banks and Banking, p. 184; Corporations, p. 381 ; Estoppel, p. hho ; post, Street Railways ; Telegraphs and Tele- phones; Water Companies and Waterworks. FRAUD AND DECEIT. IV. Manner of Perpetration, 598. A. In General 598. 1. By Agent, 598. C. By Concealment or Nondisclosure, 598. 1. Concealment or Suppression, 598. V. Operation and Efifect, 598. A. Effect on \'alidity of Transaction, 598. 1. IMakes Transaction \^oidable, 598. VI. Actions and Remedies, 598. A. Jurisdiction, 598. 1. In Equity, 598. b. Remedy at Law Must Be Inadequate, 598. B. Right of Action and Relief Afforded, 599. 2. Action of Deceit, 599. 7. Substantial Justice Afforded, 599. C. Parties, 599. 2. Parties Defendant, 599. G. Evidence, 599. 1. Presumptions and Burden of Proof, 599. a. Fraud Never Presumed but to Be Proved, 599. b. Burden of Proof, 599. 2. Competency, 599. d. Parol Evidence, 599. e. Circumstantial Evidence, 599. 3. Sufificiency and Weight, 599. b. Circumstantial Evidence, 599. CROSS REFERENCES. See the title Fraud and Deceit, vol. 6, p. 394, and references there given. In addition, see ante, Banks and Banking, p. 184; Corporations, p. 381 ; In- surance ; Mortgages and Deeds of Trust ; Officers and Agents of Private Corporations; Public Lands; Quieting Title; Removal of Causes; Re- scission, Cancellation and Reformation ; Stock and Stockholders. the forwarding agent, in so far as is ma- transported. The consignee of tlie ship- terial to the question involved, is to col- ment, whoever he may be, receives the lect less than carload shipments from dif- carload and distributes its contents to the ferent consignors, combine such shipments parties for whom they are intended. The into carloads, and ship the same in the forwarding agent finds his compensation name of the forwarding agent, or of the and profit in the difference between the owner of one of the less than carload ship- carload and less than carload rates.' " In- ments to one consignee, who may be terstate Commerce Coinm. v. Delaware, the forwarding agent himself, another etc., R. Co., 220 U. S. 235, 243, 5,i L. Ed. forwarding agent at the point of destina- 448, 31 S. Ct. 392. See post, IXTER- tion with whom he has business relations. STATE AND FOREIGN COMMERCE, or the owner of a part of the property 597 404-426 FRAUD AND DECEIT. Vol. VI. IV. Manner of Perpetration. A. In General — 1. By Agent. — A principle can not claim the benefit of a fraud committed by his agents; and a corporation can not obtain the benefits of a fraudulent transaction where knowledge of the fraud on the part of its offi- cers is to be imputed to the corporation itself. ^^'^ C. By Concealment or Nondisclosure — 1. Concealment or Suppression. — The deceit which avoids a contract need not be by misrepresentation in words. It exists where the party who obtains the consent does so by means of concealing or omitting to state material facts, with intent to deceive, by reason of which omission or concealment the other party was induced to give a consent which he would not otherwise have given. This is the rule of the common law and also that of the Philippine Civil Code, and in both cases is based upon the proposition that, under all of the circumstances of the case, it was the duty of the party who obtained the consent, acting in good faith, to have disclosed the facts which he concealed. This was the Spanish law before the adoption of the code. In such cases concealment is equivalent to misrepresentation.^^^ The words "Insidious machinations" in article 1269, Philippine Civil Code, providing when "there is deceit" in obtaining "consent" of a contracting party, may be said to mean a deceitful scheme or plot with an evil design, or, in other words, with a fraudulent purpose. ^^"^ V. Operation and Effect. A. Effect on Validity of Transaction — 1. Makes Transaction Voidable. — Where one of the contracting parties is induced to execute a contract by fraud or deceit, such contract is voidable at the election of the party afifected thereby .'''^^ VI. Actions and Remedies. A. Jurisdiction — 1. In Equity — b. Remedy at Law Must Be Inadequate. — Equity does not now take jurisdiction in cases of fraud where the relief prop- erly obtained on that ground can be obtained in a court of law, and where, so far as necessary, discovery may be obtained as well as in equity. ^^'^ 404-29a. Agent. — McCaskill Co. v. United successful result. Strong v. Repide, 213 States, 216 U. S. 504, 54 L. Ed. 509, 30 U. S. 419, 53 L. Ed. 853, 29 S. Ct. 521. S. Ct. 386. See post, OFFICERS AND 417-73a. Transaction voidable.— Strong AGENTS OF PRIVATE CORPORA- v. Repide, 213 U. S. 419, 53 L. Ed. 853, TIONS. 29 S. Ct. 521. 411-55a. Suffusion of facts.— Strong z\ If the purchase of stock is obtained by Repide, 213 U. S. 419, 53 h. Ed. 853, 29 reason of the purchase is fraud or deceit, S Ct 521 it is immaterial whether the agent of the '411-55b. Insidious machinations.-Strong seller had the power to sell the stock or V. Rep.de. 213 U. S. 419, 53 L. Ed. 853, 29 "°t- ^[ ^""^"^ %' ^^^^'^ l""'^^^^' J}l^J^]! c; Ct •'>-[ '-^^ "°^ stand. Strong v. Repide, 213 U. S. Purchase of stock by director.— A pur- ^he purchaser of corporate stock can chase of stock m a corporation by a di- not escape liability for his fraud in con- rector and owner of the three fourths of cealing facts affecting its value which he the entire capital stock who was also ^^g ;„ gooj f^ith bound to disclose, on administrator general of the company, t^g theory that, because of the insistence and engaged in the negotiations which of the seller that her agent was not au- finally led to the sale of the company s thorized to make the sale, there had never lands to the Philippine Islands govern- ^een any consent on her part, obtained ment at a price which greatly enhanced by fraud or otherwise, where the court the value of the stock, was fraudulent as fi^ds that the agent's authority was suf- procured by 'insidious machinations m- ficient, since, in legal effect, her consent eluding the execution of the contract of ^m ^g deemed induced by the fraud, sale, within the meaning of P. I. Code, Strong v. Repide, 213 U. S. 419, 53 L. Ed. art. 1269, denning deceit, where he em- g53 29 S Ct 521 ployed an agent to make the purchase, 426-lla. Adequate remedy at law.— conceahng both his own identity as the Equitable Life Assur. Soc. v. Brown, 213 purchaser, and his knowledge of the state u. S. 25, 50, 53 L. Ed. 682, 29 S. Ct. of the negotiations and their probable 494 598 Vol. VI. FRAUD AND DBCBLT. 431-447 B. Right of Action and Relief Afforded — 2. Action of Deceit. — See note 2h. 7 . SuBSTANTiAi, JUSTICE AFFORDED. — A iiian by committing a fraud does not become an outlaw and caput lupinum. He may have no standing to rescind his transaction, but when it is rescinded by one who has a right to do so the courts will endeavor to do substantial justice so far as is consistent with adherence to ]^^y 31a C. Parties — 2. Parties Defendant. — See note 34. G. Evidence — 1. Presumptions and Burden of Proof — a. Fraud Never Presumed but to Be Proved. — See note 63. b. Burden of Proof. — Fraud is not presumed, and one who bases a right or defense upon it should allege and prove it. This rule applies to the government as well as to individuals. Where the government's answers contain no allegation of fraud, silence of the findings may rightfully be taken as showing that more was proved.^^^ 2. Competency — d. Parol Evidence. — In a suit in equity between parties, in which fraud, oppression and undue influence are charged, the court is not con- cluded by that which appears on the face of the papers, but may institute an in- quiry into the real facts of the transaction."^ ^^ e. Circumstantial Evidence. — See post, "Circumstantial Evidence," VI, G, 3, b. 3. Sufficiency and Weight — b. Circuiiistantial Evidence. — See note 88. 431-25. Recovery of damages resulting from false report by national bank direc- tor.— See ante, BANKS AND BANK- ING, p. 184. 432-31a. Substantial justice afforded.— Stoffela r. Nugent, 217 U. S. 499, 54 L. Ed. 856, 30 S. Ct. 600. 433-34. Necessary parties defendants. — The mother's estate and her children by a second marriage are necessary parties defendant to a bill which seeks to set aside for fraud a family settlement made between the mother and the children of the first marriage, to annul the title which apparently flowed therefrom, to avoid collaterally decrees of the Porto Rican courts concerning the same, and to set aside, as simulated and fraudulent, the sales made in virtue of the title ap- parently vested by the settlement, where such bill, though alleging that the prop- erty transferred to the mother by such settlement was acquired by the husband by inheritance, contains no averment con- cerning the property allotted to the daughters which tends to rebut the legal presumption of community as to the prop- erty acquired during marriage, which the bill seeks to administer and distribute. Gargot V. Rubio, 209 U. S. 283, 52 L. Ed. 794, 28 S. Ct. 548. 439-63. Fraud not presumed. — See post, "Burden of Proof," VI, G, 1, b. 440-69a. Burden of proof. — United States c'. Colorado Anthracite Co., 225 U. S. 219, 56 L. Ed. 1063, 32 S. Ct. 617. Conspiracy through attorney or agent to defraud. — A person alleging that there was an agreement or understanding between an administrator and certain persons hav- ing claims against the estate in his hands to fraudulently obtain the allowance and payment of such claims, and who alleges that such parties so conspired through their attorney who represented both the claimants and the administrator inust prove that all conspired by showing that the same attorney was the agent of all to bind all. It can not be presumed that he was attorney for all from the fact of his having advised the payment of all the claims, and from the fact that he was at- torney for several of the claimants. McDaniel v. Traylor, 212 U. S. 428, 53 L. Ed. 584, 29 S. Ct. 343. 442-78a. Parol evidence. — Wagg v. Her- bert, 215 U. S. 546, 551, 54 L. Ed. 321, 30 S. Ct. 218. See post, PAROL EVI- DENCE. 447-88. Purchase of land at tax rate. — Fraud in connection with purchases of land at tax and execution sales is not es- tablished by questionable evidence of value, and the fact that the purchaser was a man of great power and influence, and bought the land at much less than the value set by the owners, from which it was sought to be inferred that judges, mayors, appraisers, and possible pur- chasers, all were frightened or corrupt. Ubarri v. Laborde, 214 U. S. 168, 53 L. Ed. 953, 29 S. Ct. 549; Laborde v. Ubarri, 21,4 U. S. 173, 53 L. Ed. 955, 29 S. Ct. 552. Mode of payment of purchase price. — Evidence that a vendee gave the check of a third person for the purchase money, although the giving of the check could not have induced the prior consent of the vendor to the sale, is proper evidence 590 463 FRAUDULENT, ETC., CONVEYANCES. Vol. VI. FRAUDS, STATUTE OF. VII. Requirements of the Statute, 600. B. The Writing, 600. 2. Sufficiency of the Writing. 600. a. In General. 600. CROSS REFERENCES. See the title Frauds, Statute of, vol. 6, p. 451, and references there given. Vn. Requirements of the Statute. B. The Writing — 2. Sufficiency of the Writing — a. In General. — See note 82. FRAUDULENT AND VOLUNTARY CONVEYANCES. III. Transfers or Alienations Made or Obtained with Intent to Hinder, Delay or Defraud Creditors, 601. C. Elements and Badges of Fraud, 601. 1. Intent in General. 601. a. Of Grantor, 601. 8. Preference to Creditors, 601. a. Lawful in Absence of Statute, 601. b. Prohibition by Statute, 601. 9. Retention of Possession or Reservation of Benefits by Grantor, 601. a. Retention of Possession, 601. b. Reservation of Benefit, 601. VI. Remedies, 603. D. Parties, 603. 1. Parties Plaintiff, 603. F. Evidence, 603. 2. Admissibility, 603. c. Declarations and Admissions, 603. J. Verdict and Findings, 603. CROSS REFERENCES. See the title Fraudulent and \"oluntarv Conveyances, vol. 6, p. 472, and references there given. In addition, see ante. Appeal and Error, p. 34; Bankruptcy, p. 168; Chat- tel Mortgages, p. 230. As to constitutionality of statutes regulating sale in bulk of stock in trade, see to show that the purchaser's concealment 213 U. S. 419. 53 L. Ed. 853, 29 S. Ct. 521. of his identity was not a mere inadvert- 463-82. Formal absurdities in a written ent omission, an omission without any contract for the sale of land do not fraudulent or deceitful intent, but was a make the contract insufficient under the studied and intentional omission to be statute of frauds, where it leaves no characterized as part of the deceitful ma- doubt as to who was the purchaser, who chinations to obtain purchase without the seller, what the land, or what the disclosing facts which would have re- terms. (1911), Lenman v. Jones. 222 U. suited in the vendor's demanding a higher S. 51, 56 L. Ed. 89, 32 S. Ct. 18, afitirming price or refusing to sell. Strong v. Repide, decree (1909), 33 App. D. C. 7. 600 Vol. Yl. FRAUDULBXT, ETC., COXVBYANCES. 479-491 ante, Constitutional Law, p. 264 ; Due Process of Law, p. 475 ; post, Police Power. See, also, post. Sales. III. Transfers or Alienations Made or Obtained with Intent to Hinder, Delay or Defraud Creditors. C. Elements and Badges of Fraud — 1. Lxtent in General — a. Of Grantor. — See post, "Preference to Creditor." III. C. 8. A conveyance made in good faith, whether for an antecedent or a present consideration, is not forbidden by statutes against fraudulent conveyances, notwithstanding that the effect may be that it hinders or delays creditors by removing from their reach assets of the debtor.!!^^ Actual Fraud. — The common law and the statutes of Elizabeth have always been held to require, in order to invalidate a conveyance as fraudulent as against creditors, that there shall be actual fraud ; and it makes no difference that the conveyance was made upon a valuable consideration, if made for the purpose of hindering, delaying or defrauding creditors. The question of fraud depends upon the motive.-'"^ 8. Preference to Creditors — a. Lazcful in Absence of Statute. — The mere fact that one creditor was preferred to another, or that the conveyance might have the effect to secure one creditor or to deprive others of the means of ob- taining payment, is not, in absence of the statute, sufficient to avoid a convey- ance as fraudulent as against creditors ; but it is uniformly recognized that, act- ing in good faith, a debtor may prefer one or more creditors.'* ^'^ Porto Rico. — Contracts made by an insolvent debtor, which, being upon ade- quate consideration, are not fraudulent simulations, can not be rescinded under the law of Porto Rico, merely because their execution operates to give a prefer- ence in favor of a creditor. ^^^ - b. Prohibition b\ Statute. — Under Bankruptcy Act. — See ante. Bankruptcy, p. 168. 9, Retention of Possession or Reservation of Benefits by Grantor — a. Retention of Possession — b. Reservation of Benefit. — There are some cases which to hold that if one makes a general assigmxient to secure creditors, and in- serts a clause reserving to himself any surplus that he thereby delays his creditors who might seek that surplus until the trust should be wound up, and therefore comes under the condemnation of the statute against conveyances to hinder, de- lay or defraud creditors, however innocent his purpose, or the existence of a 479-18a. Intent of grantor. — Coder v. 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 5T5; Arts. 213 U. S. 223, 242. 53 L. Ed. 772, 29 Will v. Tornabells, 217 U. S. 47, 54 L. Ed. S. Ct. 436. 660, 30 S. Ct. 424. 480-20a. Actual fraud. — Coder v. Arts, An attempt to prefer is not to be con- 213 U. S. 223, 242, 53 L. Ed. 772, 29 S. Ct. founded with an attempt to defraud, nor 436. a preferential transfer with a fraudulent Under Porto Rico civil code. — Only con- one. In a preferential transfer the fraud tracts in fraud of the rights of creditors is constructive or technical consisting in are embraced in the provision of Porto the infraction of that rule of equal distri- Rico Civ. Code, art. 1291, including in bution among all creditors, which it is the enumeration of contracts which may the policy of law to enforce when all can be rescinded, "those executed in fraud of not be fully paid. In a fraudulent transfer creditors, when the latter can not re- the fraud is actual, the grantor has se- cover in any other manner what is due cured an advantage for himself out of them," and such provision does not give what in law should belong to his creditors, the right to rescind a contract made by an and not to him. Coder v. Arts. 213 U. S. insolvent debtor, merely because, without 223, 241, 53 L. Ed. 722, 29 S. Ct. 436. rescission, the creditor can not otherwise 491-50a. Preference lawful in Porto recover his debt. Will v. Tornabells, 217 Rico.— Will v. Tornabells. 217 U. S. 47. U. S. 47, 54 L. Ed. 660, 30 S. Ct. 424. 54 L. Ed. 660, 30 S. Ct. 424. 489-49a. Lawful in absence of statute. Mortgagor in chattel mortgage. — See —Coder v. Arts, 213 U. S. 223, 242, 53 L. ante, CHATTEL MORTGAGES, p. 230. Ed. 772, 29 S. Ct. 436; Merillat v. Hensey. 601 501-502 FRAUDULENT, ETC., CONVEYANCES. Vol. VI. surplus."^^^ There are some New York cases which seem to go so far and per- haps others, but the same court held that the principle did not apply to assign- ments in good faith "of a part of the debtor's property to creditors themselves, for the purpose of securing particular demands.'"^'*'' That the mere reservation of a balance under an assignment to pay debts, one or many, is enough, as mat- ter of law, to make the transaction void, whether the reservation be in or out of the instrument, has not been generally accepted ;'•*'= and the New York rule has been impliedly disapproved by the supreme court of the United States.'^^^ The reservation which the law pronounces fraudulent is of some pe- cuniary benefit at the expense of creditors, especially when secretly secured, such benefit to the assignor being presumed a prime purpose of the conveyance.''' ^^ No amount of evidence will assign to an instrument an operation which the law does not assign to it. Thus, a mere deed of gift which actually deprives existing cred- itors of property which was subject to their claims, or a transfer of property grossly disproportioned to a debt secured under a conveyance apparently abso- lute, but subject to a secret agreement that the surplus should be held for the as- signor, can not be saved, for the necessary legal efifect is to hinder, delay, or de- fraud creditors, and the law can but assign to such conveya,nce the intent which must indubitably appear from the facts."^^^ The question is not one of law so much as it is one of fact and good faith. The question of fraudulent intent in such case is a question of fact, and not of law.'^'^'^ Chattel Mortgages. — Whatever may be the rule with regard to general as- signments for the benefit of creditors, there can be no doubt that, in cases of chat- tel mortgages, the reservation of a surplus to the mortgagor is only an expres- sion of what the law would imply without a reservation, and is no evidence of a fraudulent intent.'^^'' 501-74a. Reservations of benefit. — Me- rillat V. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. See ante, ASSIGN- MENTS FOR THE BENEFIT OF CREDITORS, p. 154. 501-74b, Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. "The conveyance," said the New York court, "whatever may be its form, is in effect a mortgage of the property trans- ferred. A trust as to the surplus results from the nature of the security, and is not the object, or one of the objects, of the assignment. Whether expressed in the instrument or left to implication is im- material. The assignee does not acquire the legal and equitable interest in the property conveyed, subject to the trust, but a specific lien upon it. The residuary interest of the assignor may, according to its nature, or that of the property, be reached by execution or by bill in equity. The creditor attaches that interest as the property of the debtor, and is not ob- liged to postpone action until the de- termination of any trust. He is therefore neither delayed, hindered, or defrauded in any legal sense." Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. 501-74C. Reservation of balance. — Me- rillat V. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. 501-74d. New York rule not favored. — Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575, following and ap- plying in Huntley v. Kingman, 152 U. S. 527, 38 L. Ed. 540. In Huntley v. Kingman, 152 U. S. 527. 38 L. Ed. 540, the New York rule is im- pliedly disapproved. "The assignment in that case was of a stock of merchandise to a third person as trustee, to sell and pay a particular debt and 'hold the re- mainder subject to the order of the as- signor.' The instrument was attached as fraudulent in law by reason of this reser- vation, and the trial court instructed the jury to find for the plaintiff on account of this reservation. This court reserved the judgment, holding the charge erroneous." Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. 501-75a. Reservations pronounced fraudulent. — Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575, following Lukins V. Aird. 6 Wall. 78, 79, 18 L. Ed. 750. 501-75b. Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. 502-76a. Question of fact. — Merillat v. Hensey, 221 U. S. 333. 55 L. Ed. 758, 31 S. Ct. 575. See § 1120 District of Columbia Code (31 Stat, at L. ch. 854). 502-76b. Chattel mortgage. — Merillat z\ 602 \'ol. \'l. FRAUDULENT, ETC., CONVEYANCES. 502-532 An assignment, as security for a debt of a cause of action for dam- ages under an indemnity bond, does not as a matter of law hinder, delay, or defraud creditors because of a reservation in favor of the assignor of any sur- plus remaining after paying the debt, by an agreement between the parties, not disclosed in the assignment itself, and not filed, as was such assignment, with the clerk of the court in which the action was pendingJ^*^ VI. Remedies. D. Parties — 1. Parties Plaintiff. — See note 34. F. Evidence — 2. Admissibility — c. Declarations and Admissions. — State- ments made by a widow with reference to conversations with her husband are inadmissible to show that certain transactions on his part were in fraud of cred- itors, especially where she was not herself called as a witness. ^^^ J. Verdict and Findings — Interpretation and Effect. — A finding that the evidence in a creditors' suit failed to establish that a conveyance by an insolvent debtor and a mortgage executed by his grantee were voluntarily made to hinder and delay the complaining creditors in the collection of their debts negatives the existence of fraudulent simulation, which was the controlling issue in the suit, although the court, in its conclusions of law, announced that an insolvent debtor had the right to give a preference, which must be regarded as intended to be re- sponsive solely to other findings of fact, tending to establish the giving of such a preference.''^'' A statement, accompanying the findings of fact in a creditors' suit, which are not reviewable in the federal supreme court, embraces a state- ment accompanying the findings to the effect that certain conversations between an attorney and client were excluded because the plan outlined by the latter did Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. "This was the ruling of the court of appeals of New York in Leitch v. Holli- ster, 4 N. Y. 211, 216, where the assign- ment was to the creditors themselves for the purpose of securing their demands. 'A trust,' said the court, 'as to the sur- plus, results from the nature of the se- curity, and is not the object, or one of the object, of the assignment. Whether expressed in the instruinent or left to im- plication is immaterial. The assignee does not acquire the entire legal and equitable interest in the property conveyed, sub- ject to the trust, but a specific lien upon it. The residuary interest of the assignor may, according to its nature, or that of the property, be reached by execution or by bill in equity.' " Merillat v. Hensey. 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. 502-76C. Assignment of cause of action for damages as collateral security. — Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575, affirming 32 App. D. C. 64. The assignment here was of a mere chose in action, not subject to legal proc- ess, but to be reached through equity only. There was no requirement of law ■that such an assignment should be re- corded, and no legal way to give con- structive notice. The debt secured was an honest one, and the security was of un- certain value and character, involving great expense and delay in collection. The fact was reservation of any surplus after paying the debt secured was not dis- closed in the assignment itself was a cir- cumstance of suspicious character, but not. as matter of law. inconsistent with an honest intent. Merillat v. Hensey, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. "It did not show fraud in fact or law that this assignment was not an absolute . sale or transfer of the chose assigned, but a mere security for an honest debt. If the claim came to nothing, the debt was unpaid. If, as proved to be the case, enough was realized to pay a part, the rest is a debt to be paid. But if there should be a surplus, what then? If noth- ing had been agreed about the surplus, is there any doubt that the law would have implied a promise to account to the assignor for that surplus? Is it, then, the law that the promise made to do that which, without the promise, that law would have compelled the assignee to do, constitutes such evidence of fraud as to be fraud in law?" Merillat z\ Hensev, 221 U. S. 333, 55 L. Ed. 758, 31 S. Ct. 575. 521-34. Trustee in bankruptcy. — See ante. BANKRUPTCY, p. IfiS. 526-53a. Statements of widow of fraudu- lent grantor. — Will z: Tornabells, 217 U. S. 47. 54 L. Ed. 660, ?.0 S. Ct. 424. 532-76a. Interpretation of finding. — Will V. Tornabells, 217 U. S. 47, 54 L. Ed. 660, 30 S. Ct. 424. 603 532-537 FUNCTION. Vol. VI. not tend to establish a fraud on creditors so as to exclude the claim of privilege, since such statement really shows that instead of rejecting the testimony, the court weighed and considered it, and its finding that the conversation did not tend to show the fraud which it was asserted it did show, and which was the same fraud charged in the bill, was but an expression of the conclusion of the court upon the facts involved in the merits of controversy.'^®'' FRAUDULENT REPRESENTATIONS.— See ante. Fraud and Dijceit, p. 597. FREIGHT.— See note 7. FRIEND OF THE COURT.— See ante. Appeal and Error, p. 34. FRIVOLOUS APPEALS. — See ante. Appeal and Error, p. 34. FROM.— See note 2. FUGITIVE FROM JUSTICE.— See ante. Extradition, p. 571. FULL CREW ACT. — See post, Interstate and Foreign Commerce. FULL FAITH AND CREDIT CLAUSE.— See ante, Foreign Judgments, Records and Judicial Proceedings, p. 592; post. Stock and Stockholders. FUNCTION.— See note a. 532-76b. Statement accompanying find- ings.— Will V. Tornabells, 217 U. S. 47, 54 L. Ed. 660, 30 S. Ct. 424. 533-7. Freight pending — Freight for the voyage.— As to §§ 4283, 42S4, Rev Stats., according to ship owners exemption of lia- bility to interests in vessel and freight pending, are in pari materia, the two must be considered together, and therefore the freight then pending, referred to in § 4283, is freight then pending for "the same voy- age," or "for the voyage," as these words are used in § 4284. Sums prepaid for freight and passage on the voyage, under an absolute agreement that such sums are, in any event, to belong to the owner of the vessel, must be surrendered as freight then pending on the voyage, within the meaning of the statutes. But passenger and freight receipts earned by a vessel on lier sailing from Havre to New York need not be surrendered as freight then pend- ing for the voyage, within the meaning of the statute. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. See ante, COLLISION, p. 243; post, SHIPS AND SHIPPING. "The intimate relation between the pro- visions of the two sections, which were l'^. Rkformixg SENTSNCE.^On application to a federal circuit court for habeas corpus by one convicted therein, the court can correct the sentence or resentence the prisoner.^i* HABITUAL CRIMINALS.— See ante, Constitutional Law, p. 264; Duk Process of Law, p. 475; post, Sentence and Punishment. HANDWRITING. — See the title Handwriting, vol. 6, p. 674, and references there given. HARMLESS ERROR.— See ante, Appeal and Error, p. 34. HARTER ACT.— See ante. Carriers, p. 216; Collision, p. 243; post, Ships and Shipping. HAWKERS AND PEDDLERS.— See the title Hawkers and Peddlers, vol. 6, p. 680, and references there given. In addition, as to the right to tax peddlers from another state, see post. Interstate and Foreign Commerce. HEADS OF DEPARTMENTS.— See post. Mandamus. HEALTH. I. Powers in Relation to the Public Health, 617. B. Powers of the States, 617. 1. In General, 617. C. Powers of Municipal Corporations, 617. CROSS REFERENCES. See the title Health, vol. 6, p. 681. And see ante, Courts, p. 398. I. Powers in Relation to the Public Health. B. Powers of the States — 1. Ix General. — See note 1. C. Powers of Municipal Corporations. — Due process of law is not denied the owner or custodian of food in cold storage by a municipal ordinance under which such food, when unfit for human consumption, may summarily be seized, condemned and destroyed by municipal officers without a preliminary hearing.^^^ HEARING. — See ante, Appeal and Error, p. 34; post, Injunctions. 668-65a. Commutation. — Ex parte Har- authorized by the statute. (C. C. 1909) Ian (C. C.J, ISO Fed. 119, decrees af- Ex parte Harlan, ISO F. 119, decrees af- firmed. Harlan v. McGourin, 218 U. S. firmed. Harlan r. McGourin. 218 U. S. 442, 54 L. Ed. 1101. 31 S. Ct. 44. 442, 54 L. Ed. 1101, 31 S. Ct. 44. 669-81a. Reforming sentence. — On ap- 682-1. Police power embraces health reg- pHcation to the federal circuit court for ulations. — IMoeschen v. Tenement House habeas corpus by one convicted therein, Department, 203 U. S. 583, 51 L. Ed. 328, the court can correct the sentence if it be 27 S. Ct. 781, affirming 179 N. Y. 325, 73 excessive or resentence, and hence where X. E. 231, 70 L. R. A. 704, 103 Am. St. Rep. persons convicted of conspiring to commit 910. a federal ofifense under Rev. St., § 5440 (U. 684-13a. Ordinance as to food in cold S. Comp. St. 1901, p. 3676). were sentenced storage. — North American Cold Storage to imprisonment "at hard labor," on ha- Co. v. Chicago, 211 U. S. 306, 53 L. Ed. 195, beas corpus proceedings the trial court 29 S. Ct. 101. See ante, DUE PROCESS can amend the sentence nunc pro tunc by OF LAW, p. 475. striking the quoted words, which are not 617 688-691 HOMBSTBAD. Vol. VI. HEARSAY EVIDENCE. III. Admissibility, 618. A. In General, 618. 3. Admission without Objection, 618. B. Testimony of a Witness in a Former Proceeding, 618. 1. In a Civil Proceeding, 618. 2. In a Criminal Proceeding, 618. CROSS REFERENCES. See the title Hearsay Evidence, vol. 6, p. 686, and references there given. In addition, see post, Military Law. As to the admissibility of declarations and admissions, see ante, Declarations and Admissions, p. 459. As to the admissibility of documentary evidence, see ante. Documentary Evidence, p. 469. III. Admissibility. A. In General — 3. Admission without Objection. — When hearsay evidence is admitted without objection it is to be considered and given its natural proba- tive effect as if it were in law admissible. ^"^ B. Testimony of a Witness in a Former Proceeding — 1. In a Civil Pro- ceeding. — Contribution by a corporation to the expenses of the defense of a patent infringement suit, induced by business reasons and indirect interest, but without the right to intermeddle in any way with the conduct of the case, does not make such corporation a privy to the suit, so as to render admissible, in a suit against it for infringement of the same patent, the testimony in the former suit of a witness since deceased. ^^a 2. In a Criminal Proceeding. — In a criminal prosecution if the testimony of witnesses taken at the preliminary investigation or at a former trial is admitted in evidence at the request of the accused or without objection by him, it is not subject to the objection that it is hearsay. ^^^ HEIR, HEIRS AND THE LIKE.— See the title Heir, Heirs and the Like, vol. 6, p. 690, and references there given. In addition, see post, Shelley's Case (Rule in). HEREAFTER.— See note la. HIGHWAYS. — See post. Streets and Highways; Telegraphs and Tele- phones. HIRE. — See post. Landlord and Tenant. HOMESTEAD.— See post, Indians; Public Lands. 688-8a. Evidence admitted without ob- 691-la. Hereafter rendering statute jection. — Diaz v. United States, 223 U. S. prospective. — The words "that hereafter 442, 56 L. Ed. 500, 32 S. Ct. 250. any person or persons entering into a 688-12a. Effect of contribution by a cor- formal contract with the United States" poration to expenses of the defense in in the amendment made by the Act of Feb. former action.— Rumford Chemical Works 24, 1905, to the Act of August 13, 1894, V. Hygienic Chemical Co., 215 U. S. 156, for the protection of persons furnishmg 54 L. Ed. 137, 30 S. Ct. 45, affirming 154 materials or labor for the construction of Fed. Rep. 65, 83 C. C. A. 177, and revers- public work, render it prospective, and it ing 159 Fed. Reo. 436, 86 C. C. A. 416. does not affect existing causes of action. 689-16a. Testimony admitted without "^"'^f ^?^^A'' ^no n^^<; w' ?o'' t''' Fh' «nV objection.-Diaz v. United States, 223 U. 11^ ^f^^ ?°-' ^^^ U. S. 306 53 L^ Ed. 804, S. 442, 56 L. Ed. 500, 32 S. Ct. 250. fiENS MECHANICS 618 Vol. VI. HUNYADI. 702-715 HOMESTEAD CLAIM.-^See post, Public Lands HOMESTEAD EXEMPTIONS.-See the title Homestead Exi^mptions, vol. 6, p. 693, and references there given. HOMESTEAD LAW.— See post, Public Lands. HOMICIDE. IV. Justifiable and Excusable Homicide, 619. C. Self-Defense, 619. 1. In General, 619. V. Procedure, 619. A. Jurisdiction, 619. 1. In General, 619. B. Indictment, 619. 2. Time and Place, 619. CROSS REFERENCES. See the title Homicide, vol. 6, p. 695, and references there given. In addition, see ante, Appeal and Error, p. 34; Courts, p. 398; Criminal Law, p. 434; post, Indictments, Informations, Presentments and Com- plaints; Verdict. IV. Justifiable and Excusable Homicide. C. Self-Defense — 1. In General. — See note 24. V. Procedure. A. Jurisdiction — 1. In General. — For a full treatment of this subject, see ante, Criminal Law,, p. 434. B. Indictment — 2. Time and Place. — For a treatment of this subject, see post. Indictments, Informations, Presentments and Complaints. HOSPITALS AND ASYLUMS.— See the title Hospitals and Asylums, vol. 6, p. 715, and references there given. HUNYADI. — Hunyadi is now only a geographical expression in effect.^* 702-24. Resisting arrest — Illegal war- trademark or trade name in the words rant. — A peremptory instruction to acquit "Hunyadi Janos," for a natural bitter one accused of homicide in resisting ar- water is not entitled, in the absence of rest because the statute under which the fraud or unfair competition, to enjoin the arrest was attempted and the arrest war- manufacturer of an artificial bitter water rant was issued is void under the federal from advertising and labeling the product constitution is properly refused, where, if "Artificial Hunyadi," especially since the the state's testimony is to be believed, the word Hunyadi has become a generic name accused, without any warning, or resort- for mineral waters of a certain type, coin- ing to any other means of resistance, and ing from a more or less extensive district, after the officer had knocked for admis- if not from anywhere in Hungary. Hun- sion, shot such officer upon his entering yadi at best, is now only a geographical the open door, armed with a supposed expression in effect. Saxlehner v. Wag- warrant of arrest. Franklin v. South Car- ner, 216 U. S. 375, 54 L. Ed. 525, 30 S. Ct. olina, 218 U. S. 161, 54 L. Ed. 980, 30 S. Ct. 298. See post, TRADEMARKS, TRADE- 640, affirming judgment. State v. Frank- NAMES AND UNFAIR C O M P E T I- lin (1908), GO S. E. 953, 80 S. C. 332. TION. 715-3a. Hunyadi. — The owner of a 019 718-727 HUSBAND AND WIFE. Vol. VL HUSBAND AND WIFE. I. Powers and Disabilities, 620. A. Powers and Disabilities of Wife, 620. 1. Contractual Capacity, 620. a. General Rules, 620. b. Particular Contracts, 620. ( 1 ) Contracts to Convey, 620. (5) Conveyances of Real Estate, 620. (b) Under Statutes, 620. II. Property Rights, 620. B. Community Property, 620. 1. In General, 620. 6. In Philippine Islands, 621. VIII. Actions, 621. C. Actions or Suits between Husband and Wife, 621. 1. Actions at Law, 621. CROSS REFERENCES. As to family settlements, see ante, Descent and Distribution, p. 463. I. Powers and Disabilities. A. Powers and Disabilities of Wife — 1. Contractual Capacity — a. Gen- eral Rules. — See notes 1, 4. b. Particular Contracts — (1) Contracts to Convey. — See note 5. (5) Conveyance of Real Estate — (b) Under Statutes. — See note 12. II. Property Rights. B. Community Property — 1. In General. — Community property acquired by the husband before the passage of New Alexico Laws 1901, chap. 62, § 6 (a), is subject to the provision of that section that neither husband nor wife shall dispose of real estate accjuired during coverture by onerous title unless both join in the execution of the deed.-''^'' 718-1. Contractual capacity. — ^"At the to control and dispose of her own prop- common law, the husband and wife were erty free from the constraint of the hus- regarded as one, the legal existence of the band, in many instances to carry on trade wife during coverture being merged in and business, and to deal with third per- that of the husband, and, generally speak- sons as though she were a single woman, ing, the wife was incapable of making con- The wife has further been enabled by the tracts, of acquiring property or disposing passage of such statutes to sue for tres- of the same without her husband's con- pass upon her rights in property, and to sent." Thompson v. Thompson, 218 U. S. protect the security of her g^erson against 611. 54 L. Ed. 1180, 31 S. Ct. 111. the wrongs and assaults of others."' "They could not enter into contracts Thompson v. Thompson, 218 U. S. 611, 54 with each other, nor were they liable for L. Ed. 1180, 31 S. Ct. 111. torts committed by one against the other." 718-5. Contracts to convey. — Thomp- Thompson v. Thompson, 218 U. S. 611, 54 son v. Thompson, 218 U. S. 611, 54 L. Ed. L. Ed. 1180, 31 S. Ct. 111. 1180, 31 S. Ct. 111. 718-4. Modification of common-law rule 719-12. Conveyance of real estate — Un- by statute. — "In pursuance of a more lib- der statutes. — Thompson v. Thompson, eral policy in favor of the wife, statutes 218 U. S. 611, 5-t L. Ed. 1180, 31 S. Ct. 111. have been passed in many of the states See ante, ACKNOWLEDGMENTS, p. 7. looking to the relief of a married woman 727-54a. Prior to New Mexico laws from the disabilities imposed upon her as 1901. — Arnett v. Reade, 220 U. S. 311, 55 a feme covert by the common law. Un- L. Ed. 477, 31 S. Ct. 425. der these laws she has been empowered A husband had no vested rights in the 620 Vol. VI. IDENTITY OP SUITS. 729-736 6. In Philippine Islands. — On the death of the wife, the husband, if sur- viving, was entitled, under the Spanish law in force in the Philippine Islands, to settle the affairs of the community, and on his death his executor was the proper administrator of the same.*''^^ Services rendered in aid of winding up the community business were a proper charge on the community estate, under Civ. Code P. I. 1889, art. 1064, even though rendered after the death of both husband and wife.^'^'' VIII. Actions. C. Actions or Suits between Husband and Wife — 1. Actions at Law. — The common-law relation between husband and wife was not so far modified as to give the wife a right of action to recover damages from her husband for an assault and battery committed by him upon her person, by Code D. C, § 1155, authorizing married women "to sue separately for the recovery, se- curity, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried. '"^^ IDEM SONANS. — See post, Indictments, Informations, Presentments AND Complaints; Names. IDENTICAL.— See post. Patents. IDENTIFICATION.— See ante, Boundaries, p. 206; post, Identity. IDENTITY. CROSS REFERENCES. See the title Identity, vol. 6, p. 736, and references there given. In addi- tion, see ante. Extradition. There is a presumption that a foreign magistrate had proper reason for cer- tifying as to the identity of a photograph and the prisoner held for extradi- tion.*^'^ IDENTITY OF PARTIES.— See post, Res Adjudicata. IDENTITY OF SUITS.— See post, Res Adjudicata. community property acquired prior to the but to allow the wife, in her own name, passage of N. M. Laws 1901, chap. 62, § 6 to maintain actions of tort which, at com- (a), of which he would be deprived by ap- mon law, must be brought in the joint plying to such property the provision of names of herself and husband. This con- that section that neither husband nor wife struction we think is obvious from a read- shall dispose of real estate acquired dur- ing of the statute in the light of the pur- ing coverture by onerous title unless both pose sought to be accomplished. It gives join in the execution of the deed. xA.rnett a reasonable effect to the terms used, and V. Reade, 220 U. S. 311, 55 L. Ed. 477, 31 accomplishes, as we believe, the legisla- S. Ct. 425. tive intent, which is the primary object of 729-69a. In the Philippines.— Enriquez all construction of statutes." Thompson T'. Go-Tiongco, 220 U. S. 307, 55 L. Ed. 476, 'l'; Thompson, 218 U. b. 611, 54 L. Ed. 1180, 31 S Ct 423 '^^^• „■ „„; _; . ^ -4. „ 736-6a. Presumptions as to photograph. 729-69b. Charge against community es- _identity of a prisoner held for extradi- tate-Service for winding up.- Enrique. ^.^^ ^^^ ^ photograph is sufficiently made V. Go-Tiongco, 220 U. S. 30<, o,j L. Ld. 476, ^^^^ ^^^^^ ^ foreign magistrate certifies 31 S. Ct. 423. ^ as to his own knowledge of the identity. 734-7a. Actions at law — Suit for assault since there is a presumption that he had on wife. — Thompson v. Thompson, 218 U. some reason for so doing. Glucksman v. S. 611, 54 L. Ed. 1180, 31 S. Ct. Ill, affirm- Henkel, 221 U. S. 508. 55 L. Ed. 830. 31 ing 31 App. D. C. 557. S. Ct. 704. See ante, EXTRADITION, p. "The statute was not intended to give 571; PRESUMPTIONS AND BURDEN a right of action as against the husband, OF PROOF. 621 736-756 IMITATION HORSEHAIR. Vol. VI. IDIOTS.— See post, Insanity. IF. — See note a. ILLEGAL CONTRACTS. II. Public Policy and Contracts Contrary to, 622. B. Contracts Contrary to Public Policy, 622. 22. Indemnity Contract with Surety on a Bail Bond, 622. 23. Contract by a Municipality Limiting the Exercise of Its Legis- lative Power, 622. CROSS REFERENCES. See the title Illegal Contracts, vol. 6, p. 7Z7 , and references there given. In addition, see post, Impairme;nt of Obligation of Contracts; Monopolisms and Corporate Trusts ; Police Power. II. Public Policy and Contracts Contrary to. B. Contracts Contrary to Public Policy — 22. Indemnity Contract with Surety on a Bail Bond. — Public policy does not forbid an agreement under which the surety on a bail bond becomes such upon condition that certain secu- rities held in trust or on deposit by a third person shall remain in the latter's hands as security and indemnity for signing the bond.'*'^'' 23. Contract by a Municipality Limiting the Exercise of Its Legisla- tive Power. — Any contract, made by a municipal corporation with a railroad company, which limits the exercise of its legislative power to require the com- pany to construct and maintain suitable crossings at existing and future streets, within the municipality, is void as against public policy.^ '^'' ILLICIT GRATUITIES— GRAFT.— -See post. Public Officers. IMITATION HORSEHAIR.— See note la. 736-a. Certain proceedings if deemed tive power. — Northern Pac. R. Co. v. Du- expedient.— Section 106 of the Act of July luth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 20, 1868, providing that the commissioner 341. See, also, post, MUNICIPAL COR- of internal revenue may, "if he deems it PORAllONS. expedient," proceed by bill in chancery, 756-la. Imitation horsehair produced to enforce liens for revenue taxes, did not from cotton waste by a chemical process, withdraw from the government the right being like cotton yarn as to material and then existing to resort to distraint and use, is dutiable under the similitude clause sale under the Act of July 13, 1866. The of the Tarifif Act of July 24, 1897 (30 Stat, provision authorized, but did not require, at L. 151, chap. 11, U. S. Comp. Stat. 1901, a suit in equity, and left untouched the p. 1626), § 7, at the rate levied by para- right of the government to proceed by graph 302 on cotton yarn, and not under distraint. The words "if he deems it ex- § 6 as a nonenumerated manufactured pedient." are significant as tending to re- article. United States v. Eckstein, 222 U. move all doubt as to the correct interpre- S. 130, 56 L. Ed. 125, 32 S. Ct. 65. See tation of the statute and make it evident post, REVENUE LAWS, that congress did not intend to take away "Artificial or imitation horsehair is the remedy by distraint and make the made from cotton waste by two processes, rem_edy by suit exclusive, but only to give the Fremery and the Chardonnet. By another and cumulative remedy for the the first process, referred to in the opin- enforcement of liens and taxes. Black- ion of the circuit court of appeals for the lock V. United States, 208 U. S. 75, 86, 52 second circuit, in Hardt von Bernuth & L. Ed. 396, 28 S. Ct. 228. See post, REV- Co. v. United States, 76 C. C. A. 638, 146 ENUE LAWS. Fed. 61, the cotton waste is dissolved in 747-46a. Indemnity contract with surety a solution of cup-ammonium, a salt of cop- on a bail bond. — Leary v. United States, per and ammonia, and this solution is 224 U. S. 567, 56 L. Ed. 889, 32 S. Ct. 599. forced through fine openings, discharging 747-46b. Contract by municipal corpo- into a bath of acetic acid, forming threads ration limiting the exercise of its legisla- of cellulose. By the second process the 622 Vol. VI. IMMUNITY FROM TRIAL. 750 IMMIGRATION.— See ante, Auens, p. 18; Chinese Exci^usion Acts, p. 232. IMMORAL.— See note 3b. IMMOVABLE PROPERTY.— See note 3a. IMMUNITY.— See ante, Constitutional Law, p. 264. IMMUNITY FROM SUIT.— See post, States; United States. IMMUNITY FROM TRIAL.— See ante, Extradition, p. 571. cotton waste, or raw cotton, is at first turned into gun cotton. This gun cotton is then mixed with alcohol and ether, and dissolved into a liquid, and this liquid is forced by pressure through pipes, at the end of which there are a number of small openings. The material is subsequently subjected to a process which it is not nec- essary to describe. In the manufacture under both processes the single filaments are not allowed to solidify, although they are made to stick together, whereas in the manufacture by the like process of arti- ficial silk, the fine filaments are grouped and twisted together and solidified. The imitation horsehair is usually died black, imported in skeins, and sometimes on spools.'' United States z'. Eckstein, 222 U. S. 130, 56 L. Ed. 125, 32 S. Ct. 65. 756-3b. Immoral purpose. — It may be admitted that in accordance with the familiar rule of ejusdem generis, the im- moral purpose referred to by the words "any other immoral purpose," in the Act of February 20, 1907, prohibiting the im- portation of alien women "for the pur- pose of prostitution, or for any other immoral purpose," must be one of the same general class or kind as the par- ticular purpose of "prostitution" specified in the same clause of the statute; but that rule can not avail the accused where the immoral purpose charged in the indict- ment is of the same general class or kind as the one that controls in the importa- tion of an alien woman for the purpose strictly of prostitution. It must be as- sumed that in using the words "or for any other immoral purposes," congress had reference to the views commonly en- tertained among the people of the United States as to what is moral or immoral in the relations betweeli man and woman in the matter of such intercourse, it must be held that congress intended by the words "or for any other immoral pur- pose," to include the case of any one who imported into the United States an alien woman that she might live with him as his concubine. United States v. Bitty, 208 U. S. 393, 402, 52 L. Ed. 543, 28 S. Ct. 396. See ante, ALIENS, p. 18. 756-3a. Immovable property. — "Follow- ing the Code Napoleon, the Porto Rican Code treats as immovable (real) property, not only land and buildings, but also at- tributes immovability in some cases to property of a movable nature; that is, personal property, because of the desti- nation to which it is applied. 'Things,' says § 334 of the Porto Rican Code, may be immovable either by their own nature or by their destination, or the object to which they are applicable.' Numerous illustrations are given in the fifth sub- division of article 335, which is as fol- lows: 'Machinery, vessels, instruments, or implements intended by the owner of the tenements for the industry or works that they may carry on in any building or upon any land, and which tend di- rectly to meet the needs of the said in- dustry or works.' See, also. Code Na- poleon, articles 516, 518, et seq., to and inclusive of article 534, recapitulating the things which, though in themselves mov- able, may be immoboHzed." Valdes v. Central Altagracia, 225 U. S. 58, 56 L. Ed. 980, 32 S. Ct. 664. A transfer of a lease of real property which, among other obligations imposed on the lessee, stipulates for the immobili- zation of machinery to be installed by the tenant, is a contract concerning real rights to immovable property, within the meaning of P. R. Civ. Code. § 613, relat- ing to the registration of property. Valdes V. Central Altagracia, 225 U. S. 58, 56 L. Ed. 980. 32 S. Ct. 664. See post, RE- CORDING ACTS. 623 IMPAIRMENT, ETC., OF CONTRACTS. Vol. VI. IMPAIRMENT OF OBLIGATION OF CONTRACTS. I. General Consideration, 626. C. Definition and Distinctions, 626. 3. What Is the "ObHgation of a Contract," 626. a. "ObHgation" Defined, 626. b. Laws Affecting Vahdity, Construction, Discharge and En- forcement, 626. G. The Rule That There Must Be a Valid Contract, 626. II. What Laws Impair the Obligation of Contracts, 627. D. Laws of Congress, 627. F. Judicial Decisions, 627. 1. In General, 627. * G. By-Laws and Ordinances, 627. J. Pre-Existing Statutes Unobjectionable, 627. M. Orders of Administrative Bodies, Railroad and Corporation Commis- sions, etc., 629. III. Contracts within Purview of Prohibition, 629. D. Contracts of States, 629. 1. In General, 629. 2. Violation of Contracts by the State, 629. 7. Land Grants; 630. b. Statutes Prescribing the Mode or Form of Settling Titles, 630. c. Statutes Annulling Grants, 630. 11. Grants of Exclusive Privileges, 630. a. In General, 630. g. Grant of Franchise or Privilege to Telephone and Telegraph Companies, 630. 12. Power of State to Impair Contracts through Its Taxing Power, 631. a. In General, 631. c. Inheritance Taxes, 631. F. Compacts, 631. J. Contracts of Municipalities, 632. 1. In General, 632. 2. How Obligation Impaired. a. By Mere Refusal to Perform, 632. b. By Mere Denial of Liability, 632. 3. Right to Contract Away Its Legislative Powers, 632. 4. Ultra Vires Contracts, 633. 5. Particular Contracts Considered, 633. a. Municipal Aid Contracts, 633. (1) In General, 633. b. Contracts with Street Railroads, 633. (3^) In General, 633. (4) Regulation of Rates, 633. 6. Ordinances Granting Privileges to Public Service Companies, 634. 7. Regulation of Streets and Highways, 635. O. Marriage Contracts, 635. U. Licenses, 635. 624 Vol. \'I. IMPAIRMENT, ETC., OF CONTRACTS. IV. Laws Concerning Civil Institutions or Governmental Subjects, 635. A. In General, 635. B. Police Power, 635. D. Exercise of Eminent Domain, 635. E. Public Offices and Officers, 636. F. Control over Navigable Waters, 636. V. Contracts of Private Individuals, 636. B. How Obligation Impaired, 636. 2. Law Affecting \"aliditv. Construction, Discharge and Enforcement, 636. d. Laws Annexing Conditions to Its Enforcement, 636. D. Contracts of Stockholders, 636. VI. Legislative Control over Public and Private Corporations, 636. A. Legislative Control over Private Corporations, 636. 2. Insurance Companies, 636. 3. Reorganization of Corporations, 637. 5. Exemption from Governmental Control, 637. 7. Control of Water Companies, 637. B. Legislative Control over Municipal Corporations, 637. 1. In General, 637. 4. Power with Respect to Division of Towns and Alteration of Bound- aries, 637. c. As Affecting Rights of Citizens and Taxpayers, 637. 5. Municipal Debts, 637. d. Limiting Taxing Power of ^lunicipalities, 637. (1) In General, 637. (2) Withdrawal of Right to Tax to Discharge Municipal Securities, 638. e. Change in Subjects of Taxation, 638. VII. Remedies, 638. B. Limitations of General Rule, 638. K. Statutory Liabilities, 639. 2. Liability of Stockholders, 639. a. In General, 639. CROSS REFERENCES. See the title Impairment of Obligation of Contracts, vol. 6, p. 758, and references there given. In addition, see ante, Constitutional Law, p. 264; Corporations, p. 381; Due Process of Law, p. 475; post, Interstate and Foreign Commerce; Po- lice Power; Taxation. As to federal questions and practice on appeal, see ante, Appeal and Error, p. 34; Courts, p. 398. As to regulation of rules, see ante, Carriers, p. 216; post, Police Power. As to the power of congress, under the interstate commerce clause, to enact regulations which will prevent the carrying out of existing con- tracts, and to prohibit the making of contracts which operate to waive or modify statutes regulating interstate commerce, see post. Interstate and Foreign Com- merce. As to vested rights, see ante. Constitutional Law, p. 264. As to the regulation of business, trade, occupation or professions, see ante, Constitu- tional Law^ p. 264 ; post. Police Power. 12 U S Enc— 40 625 766-769 IMPAIRMENT, ETC., OF CONTRACTS. Vol. VI. I. General Consideration. C. Definitions and Distinctions — 3. What Is the "Obligation of a Con- tract" — a. "Obligation" Defined. — See note 13. b. Laws Affecting Validity, Construction, Discharge and Enforcement. — See note 15. G. The Rule That There Must Be a Valid Contract.— See note 24. 766-13. Obligation defined — Laws bind- ing parties to perform. — "It is to the laws, whether part of the common law or found in the statutes of the state, that we look for the validity and extent of a contract between persons. They constitute its ob- ligation." Western Union Tel. Co. v. Commercial Mill. Co., 218 U. S. 406, 54 L. Ed. 1086, 31 S. Ct. 59. Existing laws as entering into obliga- tion of contract — Ordinance of 1787. — See post, "Exercise of Eminent Domain," IV, D. 766-15. Means of enforcement. — The obligation of a contract, in the constitu- tional sense, is the means provided by law by which it can be enforced, by which the parlies can be obliged to perform it. Whatever legislation lessens the efificacy of these means impairs the obligation. If it tend to postpone or retard the enforce- ment of the contract, the obligation of the latter is, to that extent, weakened. Hu- bert V. New Orleans, 215 U. S. 170, 54 L. Ed. 144. 30 vS. Ct. 40. 769-24. No impairment in absence cf valid contract. — Griffith v. Connecticut, 218 U. S. 563. 54 L. Ed. 1151, 31 S. Ct. 132; S. C, 218 U. S. 572, 54 L. Ed. 1155, 31 S. Ct. 134. Illegal contracts. — The contract clause of the constitution of the United States does not give validity to contracts which are properly prohibited by statute. Grif- fith v. Connecticut, 218 U. S. 563, 54 L. Ed. 1151. 31 S. Ct. 132; S. C, 218 U. S. 572. 54 L. Ed. 1155, 31 S. Ct. 134, affirming judg- ment State v. Griffith, 83 Conn. 1, 74 A. 1068. Forbidding the enforcement of con- tracts made in violation of Conn. Pub. Acts 1907, c. 238, prohibiting the exacting of more than 15 per cent interest on loans, or accepting a note for a greater amount than that actually loaned, with intent to evade this provision, is not invalid as the contract clause of the constitution docs not protect contracts which are prop- erly prohibited. Griffith v. Connecticut, 218 U. S. 563, 54 L. Ed. 1151, 31 S. Ct. 132; S. C, 218 U. S. 572, 54 L. Ed. 1155, 31 S. Ct. 134. Affirming judgment. State v. Griffith, 74 A. 1068, 83 Conn. 1. Matters to which contract does not ex- tend. — Where all the questions, rights, du- ties and liabilities arising or likely to arise out of the transaction are not determined and provided for by the contract, the state may, as to the matters not embraced by the contract, exercise its power of control, the subject being one afifected wiih a pub- lic interest and within the police power of the state. Grand Trunk, etc., R. Co. v. Railroad Comm., 221 U. S. 400, 55 L. Ed. 786, 31 S. Ct. 537. A contract between two intersecting railway companies, imposing upon the junior road the duty of construction and properly maintaining the physical cross- ing of the two roads, and providing and maintaining semaphores or signals, and requisite watchman to take charge of and operate the same, is not unconstitution- ally impaired by a subsequent order of the state railroad commission, directing the installation and use of an interlocking plant at such crossing, and apportioning between the two companies the expense of executing the order, since the expense of executing the order was a matter not contemplated nor provided for by the con- tract. Grand Trunk, etc., R. Co. v. Rail- road Comm.. 221 U. S. 400, 55 L. Ed. 786, 31 S. Ct. 537, affirming judgment (1907> Same v. Hunt, 40 Ind. App. 168, 81 N. E. 524. Determination of existence of contract — Construction — Federal questions. — Since the question of impairment of the obliga- tion of a contract depends first upon the existence of a valid contract, and second upon the proper construction of such con- tract, the federal supreme court will, in order to determine whether the alleged impairment has taken place, determine these questions for itself. Arkansas, etc., R. Co. V. Louisiana, etc., R. Co., 218 U. S. 431. 54 L. Ed. 1097, 31 S. Ct. 56; Perry Co. V. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. See, also, post, "In General,"' II. F, 1; "Pre-Existing Statutes Unobjec- tionable," II. J. The question whether a contract exists or whether rights under the contract have been acquired or have become vested be- fore the statutory or constitutional provi- sion allege to impair the same has been enacted, is a federal question, upon which the federal supreme court, upon writ of error to a slate court, must satisfy itself. Arkansas, etc., R. Co. v. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. A valid contract of exemption from tax- ation may be impaired by wrongful con- struction as well as by an unconstitutional statute attempting a direct repeal. The federal supreme court, therefore, "has- 636 Vol. VI. IMPAIRMENT, ETC., OF CONTRACTS. 773-781 II. What Laws Impair the Obligation of Contracts. D. Laws of Congress. — As to whether individuals, by entering into contract with reference to matters which came within the express power of congress to control, can impose limitations upon the powers of congress to the extent of with- drawing such contracts and the rights arising thereunder from the regulatory powers of congress, see post. Interstate and Foreign Commerce; Poi^ice Power. See, also, post, "In General," IV, A; "Police Power," IV, B. F. Judicial Decisions — 1. In Generai,. — See note 44. G. By-Laws and Ordinances. — See note 58. J. Pre-Existing Statutes Unobjectionable. — See note 72. power, in order to determine whether any contract has been impaired, to decide for itself what the true construction of the contract is." Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465; Hunt- ington V. Attrill, 146 U. S. 657, 36 L. Ed. 1133, 13 S. Ct. 224; Bryan v. Board, 151 U. S. 639, 38 L. Ed. 297, 14 S. Ct. 465; Mobile, etc., R. Co. V. Tennessee, 153 U. S. 486, 495, 38 L. Ed. 793, 14 S. Ct. 968; Jeflferson Branch Bank v. Skelly, 1 Black 436, 446, 17 L. Ed. 173. Where a perpetual leaseholder entitled to the use of the property forever claims a contract exemption with the state or city as to certain taxes, and the claim is made that the obligation of such contract is impaired by the action of the state or city in attempting to subject the property to taxation in violation of the terms of the contract, a federal question arises, and the federal supreme court will examine the contract for itself in order to deter- mine whether the taxes in question are embraced within the exemption claimed under the contract. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. A decree of a state court adverse to the contention that, if the state constitution confers on one railway company an ex- emption from a special tax granted in aid of another railway company, it impairs contract obligations, is reviewable in the federal supreme court, although the state court rested its decision in part upon the ground that the latter railway company had not acquired all of its contract rights be- fore the adoption of the constitution. Ar- kansas, etc., R. Co. V. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. On the other hand, where it is alleged that certain constitutional and statutory provisions granting an exemption from taxation operates to impair the obligation of plaintiff's contract right to special taxes voted in aid of a proposed railway, the question whether or not such constitu- tional and statutory provisions really cre- ate the alleged exemption is a local ques- tion to be finally determined by the state court and will not be reviewed in the federal supreme court. Arkansas, etc., R. Co. V. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. 773-44. No impairment by judicial deci- sions — Mere error not sufficient. — See post, "Pre-Existing Statutes Unobjection- able," n, J. Error as to existence of valid contract — Erroneous construction — Federal ques- tions. — See ante, "The Rule That There Must Be a Valid Contract," I, G. 778-58. By laws and ordinances. — It is no longer open to question that municipal legislation passed under supposed legis- lative authority from the state is within the prohibition of the federal constitution and void if it impairs the obligation^ of contracts. Northern Pac. R. Co. v. Du- luth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341; Mercantile Trust, etc., Co. v. Colum- bus, 203 U. S. 311, 320, 51 L. Ed. 198, 27 S. Ct. 83, and cases there cited. 781-72. Not the terms of the law but its effect — Decisions giving no effect to sub- sequent law. — In order to review in the federal supreme court the judgment of a state court because of the provision of the federal constitution against state legisla- tion impairing the obligation of a contract, the impairment must be by some subse- quent legislation of the state, which has been upheld or given eflfect in the judg- ment of the state court sought to be reviewed. Hubert v. New Orleans. 215 U. S. 170, 54 L. Ed. 144, 30 S. Ct. 40; Bacon v. Texas, 163 U. S. 207, 41 L. Ed. 132, 16 S. Ct. 1023. Only when a judgment of a state court gives effect to subsequent legislation can the federal supreme court review, as pre- senting a question of the impairment of contract obligations, its decision holding invalid, under the state constitution, a state law which is alleged to constitute a contract. Mobile, etc., R. Co. v. Missis- sippi, 210 U. S. 187, 52 L. Ed. 1016, 28 S. Ct. 650. As was said l)y Mr. Justice Gray in Nev/ Orleans Waterworks Co. v. Louisi- ana Sugar Refin. Co., 125 U. S. 18, 39. 31 L. Ed. 607, 8 S. Ct. 741: "But when the state court gives no effect to the subse- quent law, but decides, on grounds inde- pendent of that law, that the right claimed was not conferred by the contract, the case stands just as if the subsequent law had not been passed, and this court has 627 781 IMPAIRMENT, ETC., OF CONTRACTS. Vol. VI. no jurisdiction.'' Missouri, etc., R. Co. v. Olathe, 222 U. S. 187, 56 L- Ed. 156, 32 S. Ct. 47. Mere errors committed by a state court when passing upon the validit}^ and effect of a contract under the laws in existence when it was made can not give rise to a question of the impairment of contract obligations, reviewable in the federal su- preme court by writ of error, where no effect has been given to any subsequent legislation, even though the rulings are not in accord with prior decisions, on the faith of which the rights in question were acquired. Cross Lake, etc., Club v. Louisi- ana, 224 U. S. 632, 56 L- Ed. 924, 32 S. Ct. 577. "No state shall * * * pass any * * * law impairing the obligation of contracts." This clause, as its terms dis- close, is not directed against all impair- ment of contract obligations, but only against such as results from a subsequent exertion of the legislative power of the state. It does not reach mere errors committed by a state court when passing upon the validity or effect of a contract under the laws in existence when it was made. And so. while such errors may op- erate to impair the obligation of the con- tract, they do not give rise to a federal question. Cross Lake, etc.. Club z'. Lou- isiana, 224 U. S. 632, 56 L. Ed. 924, 32 S. Ct. 577. But "when the state court, either ex- pressly or by necessary implication, gives effect to a subsequent law of the state whereby the obligation of the contract is alleged to be impaired, a federal question is presented. In such a case it becomes our duty to take jurisdiction and to de- termine the existence and validity of the contract, what obligations arose from it, and whether they are impaired by the subsequent law. But if there be no such law, or if no effect be given to it by the state court, we can not take jurisdiction, no matter how earnestly it may be insisted that that court erred in its conclusion re- specting the validity or effect of the con- tract; and this is true even where it is asserted, as it is here, that the judgment is not in accord with prior decisions on the faith of which the rights in question were acquired." Cross Lake, etc.. Club V. Louisiana, 224 U. S. 632, 56 L. Ed. 924, 32 S. Ct. 577; Knox v. Exchange Bank. 12 Wall. 379, 383, 20 L. Ed. 414; Central Land Co. t'. Laidley, 159 U. S. 103. 112, 40 L. Ed. 91, 16 S. Ct. 80; Bacon v. Texas, 163 U. S. 207, 221, 41 L. Ed. 132, 16 S. Ct. 1023; Turner v. Wilkes County Comm'rs, 173 U. S. 461, 43 L. Ed. 768, 19 S. Ct. 464; National Mut. Bldg.. etc., Ass'n c'. Bra- han, 193 U. S. 635, 647, 48 L. Ed. 823, 24 S. Ct. 532; Hubert v. New Orleans, 215 U. S. 170, 175, 54 L. Ed. 144, 30 S. Ct. 40; Fisher z-. New Orleans, 218 U. S. 438, 54 L. Ed. 1099, 31 S. Ct. 57; Missouri, etc., R. Co. V. Olathe, 222 U. S. 187, 56 L. Ed. 156, 32 S. Ct. 47. But it is said that the federal supreme court is not limited to the mere language of the opinion of the state court, but will consider the substance and effect of the judgment, McCullough v. Virginia, 172 U. S. 102, 117, 43 L. Ed. 382, 19 S. Ct. 134; Hubert v. New Orleans, 215 U. S. 170, 175, 54 L. Ed. 144, 30 S. Ct. 40, and that the federal supreme court will de- cide for itself, with due respect for the state decision, whether a contract has been and what it was (Sullivan v. Texas. 207 U. S. 416, 423, 52 L. Ed. 274, 28 S. Ct. 215). Both of these statements are true, of course, and relevant when the judg- ment really gives effect to a later act oi the state that would impair the obligation of the contract if the contract were as al- leged. But the mere allegation of a later constitution or statute impairing the ob- ligation of the contract gives no jurisdic- tion to the federal supreme court to see that the contract is enforced according to its tenor, irrespective of the supposed in- terference of the later law. The jurisdic- tion extends to doing away with such an interference, but not to remedying an erroneous construction of contracts, or to seeing that they are carried out accord- ing to the interpretation of the federal supreme court, apart from it. Bacon v. Texas, 163 U. S. 207, 219, 41 L. Ed. 132, 16 S. Ct. 1023; New Orleans Waterworks Co. V. Louisiana, 185 U. S. 336, 352, 46 L. Ed. 936, 22 S. Ct. 691; Weber v. Rogan, 188 U. S. 10, 14, 47 L. Ed. 363, 23 S. Ct. 263; Central Land Co. v. Laidley, 159 U. S. 103, 110, 40 L. Ed. 91, 16 S. Ct. 80; Fisher v. New Orleans, 218 U. S. 438, 54 L. Ed. 1099, 31 S. Ct. 57. A decree of a state court avoiding a conveyance by the board of commission- ers of the Caddo levee district under the supposed authority of La. Acts 1892, No. 74, § 9, on the ground that under that section, properly construed, the board had no authority to sell until a proper instrument conveying the land to the board had been duly executed by the proper state officers, does not give effect to acts 1902, No. 171, repealing the earlier act, so as to present a question of the im- pairment of contract obligations, review- able in the federal supreme court by writ of error. Cross Lake, etc.. Club v. Lou- isiana, 224 U. S. 632, 56 L. Ed. 924, 33 S. Ct. 577. The contention that an attempt in the state constitution to limit taxation im- pairs the obligation of contracts with a municipal school board does not present a case for a writ of error from the fed- eral supreme court to review a decree of a state court which refused mandamus to compel the levy of a tax to pay claims and judgments based upon such contracts, which rests mainly on the grounds that 628 Vol. \1. IMPAIRMENT,^ ETC., OF CONTRACTS. 782-784 M. Orders of Administrative Bodies, Railroad and Corporation Com- missions, etc. — The order of a state railroad conTmission is a legislative act by an instrumentality of the state exercising delegated authority, and is of the same force as if made by the legislature, and so is a law of the state within the mean- ing of the contract clause of the constitution."*'^ III. Contracts within Purview of Prohibition. D. Contracts of States— 1. In General,.— See note 87. 2. Violation of Contracts by the State. — See note 91. the relators were guilty of laches, and that the statute relied upon as authoriz- ing such contracts did not empower the school board to make contracts in such wise as to bind the municipality to levy the tax, neither the constitution nor any subsequent legislation having been in- voked or enforced by the court. Fisher V. New Orleans, 218 U. S. 438, 54 L. Ed. 1099, 31 S. Ct. 57. The main grounds upon which the su- preme court of the state decided the case were that the relators had been guilty of laches, and that the Act of 1873 did not authorize contracts to be made by the school board in such wise as to bind the city to levy the tax. The court did not purport to rely upon the constitution of 1898, or any subsequent legislation, for the result. It did not purport to enforce any later law; it simply denied the exist- ence of the right alleged. Therefore, on the face of the decision, there is no war- rant for coming here. Fisher v. New Or- leans, 218 U. S. 438, 54 L. Ed. 1099, 31 S. Ct. 57. A decision of the highest court of a state, enforcing the payment by a street railway company to a municipality of the sum contracted to be paid when the road should be completed, is not reviewable in the federal supreme court, as giving effect to a resolution of the common council which the company asserts im- paired its contract right to construct a certain turn-out, where the court placed its decision distinctly upon the ground that, without regard to that resolution or to the question of the right of the com- pany to construct the turn-out, the money was payable because the road had been substantially completed. Missouri, etc., R. Co. z: Olathe, 222 U. S. 187, 56 L. Ed. 156, 32 S. Ct. 47. Federal court takes statute as con- strued by state court. — A question of im- pairment of obligation is presented where the state court simply holds that the statute relied on as creating the contract is unconstitutional under the provisions of the state constitution. Mobile, etc., R. Co. V. Mississippi, 210 U. S. 187, 52 L. Ed. 1016, 28 S. Ct. 650. The construction given by a state court to the immunity of railway companies from taxation, granted by the state con- stitution, as extending to a special tax in aid of another railway company, is con- clusive on the federal supreme court in determining, on writ of error to the state court, whether such constitutional pro- vision impairs contract obligations. Ar- kansas, etc., R. Co. V. Louisiana, etc., R. Co.. 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. 782-76a. Orders of administrative bod- ies, railroad and corporation commissions, etc. — Grand Trunk, etc., R. Co. v. Rail- road Comm., 221 U. S. 400, 55 L. Ed. 786, 31 S. Ct. 537, citing Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, 53 L. Ed. 150, 29 S. Ct. 67; New Orleans Waterworks Co. zl Louisiana Sugar Re- fin. Co., 125 U. S. 18. 31 L. Ed. 607, 8 S. Ct. 741; St. Paul Gas, etc., Co. v. St. Paul, 181 U. S. 142, 148, 45 L. Ed. 788. 21 S. Ct. 575; Northern Pac. R. Co. v. Du- luth, 208 U. S. 583, 590, 52 L. Ed. 630, 28 S. Ct. 341. 784-87. Right of state to enter into contracts. — The prohibition of the con- stitution against the passage of laws im- pairing the obligation of contracts ap- plies to the contracts of the state and to those of its agents acting under its au- thority, as well as to contracts between individuals. Hubert z: New Orleans, 215 U. S. 170. 54 L. Ed. 144, 30 S. Ct. 40. Power to bargain or surrender govern- mental powers. — See post. "Right to Con- tract Awav Its Legislative Powers." III. J, 3; "In General," IV, A; "Police Power," IV, B. See, also, post, POLICE POWER. 784-91. Violation and impairment dis- tinguished. — There is a distinction be- tween impairment of obligation of a con- tract and the mere breach of a contract, the latter is neither the confiscation of property nor a taking of property with out due process of law. The latter, does not present a federal question, the rem- edy being in the state courts by an ac- tion to enforce the contract to recover damages upon its breach. Shawnee, etc.. Drainage Co. v. Stearns, 220 U. S. 462, 55 L. Ed. 544, 31 S. Ct. 452. 629 792-804 IMPAIRMENT, ETC., OF CONTRACTS. Vol. VI. 7. Land Grants — b. Statutes Prescribing the Mode or Form of Settling Ti- tles. — See note 21. c. Statutes Annulling Grants. — For Nonpayment of Taxes, Failure to List for Taxation, etc. — See post, "Compacts," III, F. 11. Grants of ExcIvUSive Privilege;s — a. In General. — See ante, Constitu- TiONAi, Law, p. 264; Due Process of Law, p. 475. See, also, post, "Grants of Exclusive Privileges," III, D, 11 ; "Ordinances Granting Privileges to Public Service Companies," III, J, 6. g. Grant of Franchise or Privilege to TelepJwne and Telegraph Companies. — A telephone company can claim no contract right protected by the federal constitu- tion as against regulations and restrictions passed pursuant to the authority of statutes which were in force at the time of the granting of such franchise or priv- ilege, and which expressly provided that such franchise should be held subject to the reserved power to impose conditions and restrictions. •''^'^ 792-21. Statutes pi escribing mode of settling titles — Survey of Mexican grant, — The substantial elements of a contract between the claimant under a Mexican land grant by metes and bounds and the state which is alleged to arise out of Act Tex. Feb. 10, 1852, confirming such grant and imposing upon the claimant the duty of having the land surveyed by the dis- trict or county surveyor of the county in which it is situated, and of returning the field notes to the land office, which is then required to issue a patent, are so far lacking as to defeat the contention that contract obligations are unconstitu- tionally impaired by the subsequent Act Sept. 3, 1901 (Ex. Sess.), p. 6, c. 4, § 11, under which the state has recovered from such claimant a portion of the land which, though called for by the survey, is out- side the boundaries of the original Mex- ican grant. Judgment (Tex. Civ. App. 1906) 95 S. W. 645, affirmed. Sullivan v. Texas, 207 U. S. 416, 52 L. Ed. 274, 28 S. Ct. 215. 804-69a. Franchises and privileges of telephone and telegraph companies. — Pomona v. Sunset Tel., etc., Co., 224 U. S. 330, 56 L. Ed. 788, 32 S. Ct. 477. Same — Grant subject to power of mu- nicipality to regulate and control. — No grant to a telephone company of the right to occupy the streets of a city without its con- sent, which will be protected by the con- tract clause of the federal constitution, can be deduced from the amendment of October 10, 1911, to Cal. Const, art. 11, § 19, under which persons or corpora- tions may establish and operate works for supplying the inhabitants of a munic- ipality with telephone service "upon such conditions and under such regulations as the municipality may prescribe under its organic law, on condition that the mu- nicipal government shall have the right to regulate the charges." Pomona v. Sunset Tel., etc., Co., 224 U. S. 330, 56 E. Ed. 788, 32 S. Ct. 477. A telephone company can claim no contract right under the amendment of March 20, 1905, to Cal. Civ. Code, § 536, to occupy the streets of a city for local business without the city's consent, in view of the passage, before the date when such amendment by its terms was to go into effect, of the Franchise Act of March 22, 1905, taking effect immediately, and providing that every franchise to erect or lay telephone wires, except "telephone lines doing an interstate business," shall be granted upon the conditions named in such act, which leaves franchise grants general to the local subdivisions con- cerned, and contains a general repealing clause naming certain exceptions, of which § 536 is not one. Pomona v. Sun- set Tel., etc., Co., 224 U. S. 330, 56 E. Ed. 788. 32 S. Ct. 477. Same — Exception in favor of company doing interstate business. — A contract right to maintain only through interstate telephone wires in the city streets, and to maintain the poles and wires connect- ing local subscribers, is all that can be gathered from the exceptions in favor of "telephone lines doing interstate busi- ness," made by Cal. Act of March 22, 1905, which repealed, before it took ef- fect, the Act of March 20, 1905, amending Cal. Civ. Code, § 536, so as to include telephone companies among the corpora- tions which could occupy the city streets without municipal consent. Pomona v. Sunset Tel., etc., Co., 224 U. S. 330, 56 E. Ed. 788, 32 S. Ct. 477. The appellee, a California corporation, brought its bill to restrain the city of Pomona from removing appellee's poles and wires from the streets of the city and from preventing the appellee's plac- ing further poles and wires in the streets. The ground is that the constitution of California, as amended in 1911, or the statute of the state, contained a grant with which the constitution of the United States does not permit the city to inter- fere. The amendment provides "persons or corporations may establish and operate works for supplying the inhabitants with telephone and telegraph service upon 630 Vol. VI. IMPAIRMENT, ETC., OF CONTRACTS. 805-808 12. Power of State to Impair Contracts through Its Taxing Power— a. In General— \s to impairment of obligation by subsequent restrictions upon power of taxation, change in subjects of taxation, etc., see post, "Municipal Aid Contracts," III, J, 5, a; "Limiting Taxing Power of Municipalities," VI, B, 5, d; "Change in Subjects of Taxation," VI, B, 5, e. As to violation of compact between states through the operation of a statute forfeiting land titles for fail- ure to list for taxation, see post, "Compacts," III, F. c. Inheritance Taxes. — See note ??>. F. Compacts. — See note 87. such conditions and under such regula- tions as the municipality may prescribe under its organic law, on condition that the municipal government shall have the right to regulate the charges therefor." The words "upon such conditions" are not confined to police powers, but are of general import. The powers of the mu- nicipal corporation to impose conditions excludes the notion that the constitution alone is a grant to others of a right to occupy the streets without its consent. As to the claim founded upon the stat- utes, § 536, Civil Code, pennits telegraph corporations to construct lines in high- ways and public roads, and by Act of March 20, 1905, it was amended to in- clude telephone corporations. Two days later a franchise act was passed to take effect immediately, providing that: "every franchise or privilege to erect or lay tel- egraph or telephone wires, etc., except telegraph or telephone lines doing an in- terstate business, should be granted upon the conditions specified in the act, and not otherwise." "We construe the words quoted as of general application, and we must take § 536 to have been repealed, subject to the exception contained in the later act, before any grant or right under it had accrued to the appellee." As to the exception, the words are "except tel- egraph on telephone lines doing an inter- state business," and the appellee must be taken to have a grant to keep its main through lines in the streets of Pomona, but not to maintain the posts and wires by which it connects with subscribers. There is no ground for the bill. Pomona V. Sunset Tel., etc., Co., 224 U. S. 330, 56 L. Ed. 788, 32 S. Ct. 477. 805-73. Inheritance taxes — Surviving wife's interest in community. — See, also, ante, CONSTITUTIONAL LAW, p. 264. The contention that the state has power, so far as the constitution of the United States is concerned, to select and subject to an inheritance tax, or to any tax, the wife's interest in the community property upon the death of the husband, and the question whether or not such property is within the state law imposing a tax, whether it is called an inheritance tax or by whatever name it may be called, are questions solely for the state courts, and their final decision on those ques- tions, holding that such interest of 'the wife is within the law and subject to the tax, does not operate an impairment of the obligation of any contract nor deprive the wife of her property without due process of law. Moffitt v. Kelly, 218 U S. 400, 54 L. Ed. 1086, 31 S. Ct. 79. There is no merit in the contention that the wife is deprived of her property with- out due process or that any contractual obligation is impaired, on the theory that the surviving wife takes the community estate, not as an heir to the property of which the husband was owner, but by vir- tue of her own right of ownership vested in her prior to the death of the husband and entitling her to the possession and enjoyment of such property upon his death. Whatever the nature of this right, it was a property right, and subject to taxation by the state, and whether the state law imposing a tax, whether called an inheritance tax or not, was applicable thereto, or whether the state court have mistakenly held it to be within the law and subject to the tax, were state questions, and no question under the due process or impairment of obligation clauses of the federal constitution could arise. Moffit v. Kelly, 218 U. S. 400, 54 L. Ed. 1086, 31 S. Ct. 79. The enactment of a state statute sub- jecting to an inheritance tax the rights of a surviving wife in the community prop- erty does not violate the contract clause of the federal constitution, even if such rights, as they existed when the marriage was celebrated, are contractual, so that they may not be essentially changed or modified by subsequent legislation without impairing contract obligations. (1910) Moffit V. Kelly, 218 U. S. 400, 54 L. Ed. 1086, 31 S. Ct. 79, affirming judgments In re Moffit's Estate (1908) 95 P. 653, 1025, ]53 Cal. 359, 20 L. R. A. (N. S.). 207. 808-87. Compacts between states — Vir- ginia and Kentucky — Failure to list land titles for taxation — Forfeiture. — While the Virginia compact prevents the cutting down of the titles secured under the state of Virginia prior to its date, so as to take away substantial rights incident to the title, as was the case in Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547, it did not mean to prevent the state, upon notice and hear- ing, from requiring the registration of 631 811-812 IMPAIRMEXT, ETC., OF CONTRACTS. Vol. VI. J. Contracts of Municipalities — 1. In General. — By Law or Ordinance as Law within Meaning of Contract Clause. — See ante, "By-Laws and Ordinances/' 11, G. 2. How Obligation Impaired — a. By Mere Refusal to Perform. — See note 1. b. By Mere Denial of Liability. — See note 2. 3. Right to Contract Away Its Legislative Powers. — See note 5. land titles for taxation, or, in default thereof, from forfeiting such titles to the state. These laws do not have the efifect of taking away legitimate rights secured by the old grants, but enable the new sovereign to enforce against such lands, as well as others, the taxing laws of the state. It was, of course, recognized that the land would pass under the dominion of a new state, which would require rev- enues for its support, and while the title obtained from the state of Virginia^ was protected, it was not intended that it should be immune from constitutional laws having the efifect to subject such lands to the taxing power of the new sov- ereignty, and to require their owners, by all proper methods, to contribute their share to the public burdens of the state. Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. Requiring upon notice and hearing the listing of land titles for taxation for cer- tain specified years, or, in default thereof, forfeiting such title to the state, as is done by Kentucky Act of March 15, 1906, art. 3, does not, as to titles under grants from the state of Virginia, violate the provisions of the compact of 1789, between the states of Virginia and Kentucky, for the security of private rights existing at the time of the separation of the states, to be determined . by the then existing laws of Virginia. Kentucky Union Co. v. Kentucky, 219 U. S. 140. 55' L. Ed. 137, 31 S. Ct. 171. 811-1. Mere refusal of city to perform contract not within inhibition. — See ante, "Violation of Contracts bv the State," III, D, 2. There is no case of impairment of obli- gation, or taking the property without due process of law, where the facts show that the city merely violated its contract to take over the laterals of a drainage com- pany, to be paid for by tax warrants, and proceeded, under a law enacted before the contract was made, to issue bonds to de- fray the cost of a new sj'-stem. Shawnee, etc.. Drainage Co. v. Stearns, 220 U. S. 462, 55 L. Ed. 544, 31 S. Ct. 452. The court is pointed to no law im- pairing the obligation of the contract. The statute under which the bonds were authorized to be issued is not such a law. It was passed before the contract was made. The breach of a contract is neither a confiscation of property nor a taking of property without due process of law. The case, therefore, comes within the prin- ciples announced in St. Paul Gas, etc., Co. V. St. Paul, 181 U. S. 142, 145, 45 L. Ed. 788, 21 S. Ct. 575; Shawnee, etc.. Drainage Co. V. Stearns. 220 U. S. 402, 55 L. Ed. 544, 31 S. Ct. 452. 811-2. Mere denial of liability by munici- pality. — See, also, ante, "Violation of Contracts by the State," III, D, 2. The jurisdiction of a federal circuit court of a suit by a street railway com- pany to enjoin the enforcement of a mu- nicipal ordinance as impairing contract rights can not be sustained, where such ordinance, after reciting that questions as to the company's rights have been raised, orders it to remove its tracks, and directs the city solicitor to take action to enforce the city's position, since such direction must contemplate enforcement by suit, and not the forcible removal of the tracks. Des Moines v. Des Moines, etc., R. Co., 214 U. S. 179, 53 L. Ed. 958, 29 S. Ct. 553. "This is not a law impairing the rights alleged by the appellee, and therefore the jurisdiction of the circuit court can not l)e maintained. Leaving on one side all ques- tions as to what can be done by resolu- tion, as distinguished from ordinance, un- der Iowa laws, we read this resolution as simply a denial of the appellee's claim, and a direction to the city solicitor to resort to the courts if the appellee shall not ac- cept the city's views." Des Moines v. Des Moines, etc., R. Co., 214 U. S. 179, 53 L. Ed. 958, 29 S. Ct. 553. But municipal legislation carried into effect by mandamus, which requires a railroad company to make repairs in a viaduct at its own expense, in accordance with plans adopted and approved by the municipal council, can not be regarded as a mere repudiation by the municipality of its agreement to maintain the viaduct, so as to defeat the appellate jurisdiction of the supreme court of the United States over a state court, invoked on the ground that contract obligations were therebj^ impaired. Northern Pac. R. Co. v. Du- luth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341. 812-5. City can not usually contract away its legislative powers. — See post, POLICE POWER. And see, also. post. "In General," IV, A; "Police Power," IV B. The surrender, by contract, of a power of government, though in certain well de- fined cases it may be made by legislative authority, is a very grave act. and the surrender itself, as well as the authority 632 Vol. \'T. IMP.-URMEXT, ETC., OF COXTRACTS. 812-816 4. Ultra \'ires Coxtracts. — See note 6. 5. Particular Contracts Considered — a. Municipal Aid Contracts — (1) In General. — See note 11. b. Contracts zvith Street Railroads — (^) In General. — Grants by ordi- nance, to a street railway company, when embodying the terms of a contract, are protected by the federal constitution from impairment by subsequent state leg- islation. Notwithstanding the principle of strict construction, whatever is plainly granted can not be taken from the parties entitled thereto by such legislative enactments. 1'^'^ (4) Regulation of Rates. — See note 23. to make it, must be closely scrutinized. No other body than the supreme legisla- ture (in this case, the legislature of the state) has the authority to make such a surrender, unless the authority is clearly delegated to it by the supreme legisla- ture. The general powers of a miunicipal- ity or of any other political subdivision of the state are not sufficient. Specific au- thority for that purpose is required. Home Tel., etc., Co. v. Los Angeles, 211 U. ,S. 265, 273, 53 L. Ed. 176, 29 S. Ct. 50. The legislative authority to the mu- nicipality to make such a contract must clearly and unmistakably appear. Home Tel., etc., Co. v. Los Angeles. 211 U. S. 265, 277, 53 L. Ed. 176, 29 S. Ct. 50. Inviolable contract suspending power to regulate rates. — See, also, post, "Regu- lation of Rates," IH, J. 5, b, (4): "Or- dinances Granting Privileges to Public Service Companies," IH, J, 6. The state may authorize one of its municipal corporations to establish by an inviolable contract the rates to be charged by a public service corporation (or natural person) for a definite term, not grossly unreasonable in point of time, and the effect of such a contract is to sus- pend, during the life of the contract, the governmental power of fixing and regu- lating the rates. Home Tel., etc., Co. ■:'. Los Angeles, 211 U. S. 265. 273, 53 L. Ed. 176, 29 S. Ct. 50; Detroit z: Detroit, et'- . St. R. Co., 184 U. S. 368, 382, 46 L. Ed. 592; Vicksburg z'. Vicksburg Waterworks Co., 206 U. S. 496, 508, 51 L. Ed. 1155. But for the very reason that such a contract has the effect of extinguishing pro tanto an undoubted power of govern- ment, both its existence and the au- thority to make it must clearly and un- mistakably appear, and all doubts must be resolved in favor of the continuance of the power. Home Tel., etc., Co. r. Los Angeles, 211 U. S. 265, 273, 53 L. Ed. 176, 29 S. Ct. 50. 812-6. Ultra vires contract to maintain viaduct over railroad tracks. — Reouiring a railway company to repair, at its own ex- pense, a viaduct and its approaches, built to carry over a railroad a street which was not extended over the right of way until after the railroad was built, can not be said to impair the obligation of a con- tract by which the municipality, in con- sideration of a contribution from the rail- road company toward the expense of the original construction, agreed to maintain the viaduct for fifteen years, and to main- tain the approaches perpetually, where the highest state court consistently with its earlier decisions, holds that the rail- way charter, as well as the common law, requires the railway company to construct and maintain suitable crossings at exist- ing and future streets, and that any con- tract limiting the exercise of legislative power in this regard is void as against public policy, although there may have been some doubt when the contract was made as to what the rights of the parties were, and the contract may have been a compromise. Judgment, State v. North- ern Pac. Ry. Co. (1906), 108 N. W. 269, 98 ]\Iinn. 429, affirmed. Northern Pac. R. Co. f. Duluth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341. 813-11. Inviolable of municipal aid con- tracts. — The obligation of a valid mu- nicipal grant of a special tax of 5 mills in aid of a specified railway companj-, ef- fective against all the taxable property in the parish, is not unconstitutionally im- paired by the subsequent adoption of a new state constitution under which an}^ property in the parish passing into the possession of any railroad thereafter con- structed becomes exempt from the tax. Arkansas, etc., R. Co. v. Louisiana, etc., R. Co., 218 U. S. 431. 54 L. Ed. 1097, 31 S. Ct. 56. 815-17a. Inviolability of contract with street railway — In general. — Minneapolis z: Minneapolis St. R. Co., 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. See, gen- erally, post, STREET RAILWAYS. See. also, ante. "By Mere Refusal to Per- form," III, J, 2, a; "By Mere Denial of Liability." TIL T. 2. b. Disposition of property after cessation of use, expiration of franchise, etc. — See ante. DUE PROCESS OF LAW. p. 475; post, POLICE POWER. 816-23. Regulation of street railroad rates — Irrevocable contracts suspending powers. — See, also, ante. "Right to Con- tract Away Its Legislative Powers," III, J, 3; post, "Ordinances Granting Frivi- 633 820 IMPAIRMENT, ETC., OF CONTRACTS. Vol. VI. 6. Ordinances Granting Privileges to Public Service Companies. note 35. -See leges to Public Service Companies," III, J, 6. r ^ ■ A Legislative ratification of unauthorized contract.— The contract right of a street railway company to charge the rate of fare permitted by a municipal ordmance vests in such company, secure agamst im- pairment by subsequent legislation, when ratified by a valid legislative act, notwith- standing the want of power of the city to adopt the ordinance. Decree Minneapolis St. Ry. Co. V. City of Minneapolis (Minn. 1907), 155 F. 989, modified. Minneapolis ■V. Minneapolis St. R. Co., 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. Same— Extent of reserved right of fu- ture contract.— The right of future con- trol, reserved to the municipality in a street railway franchise, as respects the "construction, maintenance, and opera- tion" of the line of a street railway com- pany, does not include the power to re- duce fares below the rate prescribed in an existing contract between the mu- nicipality and the company, but such pro- vision has reference only to the manner of carrying on the business of the road, the laying of its tracks, the use of its streets, the keeping up of the equipment, the safety of the passengers and the pub- lic, and similar matters not involving the right to charge fares. Decree, Minne- apolis St. Ry. Co. V. City of Minneapohs (Minn. 1907), 155 F. 989, modified. Min- neapolis V. Minneapolis St. R. Co., 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. Same — Duration of contract beyond ex- piration of charter. — The contract right of a street railway company to charge five-cent fares, secured against impairment "during the term of its charter" by a mu- nicipal ordinance ratified by Minn. Act of March 4, 1879, extends for fifty years, where the company undertook to organize for that period, under Minn. LaAvs 18p6, chap. 34, titl. 1, and its certificate of in- corporation stated that its corporate life was to be for that term, and has con- tinued to act as a corporation since the expiration of the thirty years which would have been its corporate life, if organized, as the municipality contends it should have been, under tit. 2 of such chapter. Minneapolis v. Minneapolis St. R. Co , 215 U. S. 417. 54 L. Ed. 259, 30 S. Ct. 118. Same— Effect of acceptance of ordi- nance authorizing change of motive power. — Existing contract rights of a street railway company to charge five-cent fares secured against impairment by sub- sequent legislation, were not abandoned l^y accepting an ordinance authorizing a change of motive power from horse power to electricity, although the origi- nal franchise named only animal or pneumatic power, where it also provided that no propelling power should be used after it should be proved a public nui- sance, and that the company might con- nect with other street railways upon which power was used similar to that au- thorized to be used by street railways by the city council, but that steampower cars, such as were in common use, should not be used upon the city tracks unless specially authorizea. Minneapolis v. Min- neapolis St. R. Co., 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. Same — Acceptance of ordinance requir- ing company to issue transfers. — The ac- ceptance of a municipal ordinance re- quiring a street railway company to is- sue transfers does not abrogate an existing contract secured against impair- ment by subsequent legislation to charge a five-cent fare for one continuous passage not exceeding three miles in length. Minneapolis v. Minneapolis St. R. Co., 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. 820-35. Ordinance granting privileges to public service companies — Stipulation as to rates — Reserved control. — See, also, ante, "Right to Contract Away Its Legis- lative Powers," III, J, 3; "Regulation of Rates," III, J, 5, b, (4). See, also, post, POLICE POWER. A provision in an ordinance granting a renewal of its franchise to a gas com- pany that, in consideration of the privi- leges granted, it shall furnish gas at a price not to exceed $1.80 per thousand cubic feet, and 20 cents per thousand feet for discount to consumers paying before the 10th of each month after consump- tion, is not a contract by the city that the price shall be kept high enough to allow a discount for prompt payment, the agree- ment being that of the company alone, and subject to the city's power to regu- late rates. Cedar Rapids Gas., etc., Co. V. Cedar Rapids, 223 U. S. 655, 56 L. Ed. 594, 32 S. Ct. 389. The words relied upon by the plaintiff express its promise in consideration of the privileges granted, not a promise by the city. Knoxville Water Co. v. Knox- ville, 189 U. S. 434, 437, 47 L. Ed. 887, 23 S. Ct. 531. It is true that the contract was in the form of an ordinance, but the ordinance was drawn as a contract, to be accepted, and it was accepted b}' the plain- tiff; it contained reciprocal undertakings, the one in question being that of the plaintiff; and it was subject to the power retained by the city to regulate rates. That power, it was expressly provided by the Iowa statute, was not to be abridged bv ordinance, resolution, or contract. Code of 1897, § 725, 22 G. A. (1888), chap. 16. Cedsr Rapids Gas, etc., Co. v. Cedar Rapids, 223 U. S. 655, 56 L. Ed. 594, 32 S. Ct. 389. 634 Vol. VI. IMPAIRMENT, ETC., OF CONTRACTS. 820-828 7. Regulation of Streets and Highways. — Display of Advertisements on Vehicles in Street. — Contract obligations are not unconstitutionally im- paired by a municipal ordinance under which a domestic corporation operating stage routes in the city streets is forbidden to display exterior advertisements on its stages, where, at the time the advertising contracts were entered into there ex- isted an ordinance almost identical in terms, and the company's charter does not confer any right to use its stages for advertising purposes.^*''^ 0. Marriage Contracts.— See ante. Husband and Wife, p. 620. As to vested or contractual rights in property arising jure maritii, see ante. Constitu- tional Law, p. 264. See, also, ante, "Inheritance Taxes," III, D, 12, c. U. Licenses. — See post. Licenses. IV. Laws Concerning Civil Institutions or Governmental Subjects. A. In General. — As to the power of the state to bargain away its police or other governmental powers, see post. Police Power. See, also, ante, "Right to Contract Away Its Legislative Powers," III, J, 3. As to the power of individuals to impose limitations upon the exercise of governmental powers and to withdraw legitimate subjects of legislation from governmental control by entering into contracts respecting the same, see post. Police Power. As to contracts concern- ing matters within the controlling power of congress over foreign and interstate commerce, such as contracts for rebates, free passes, and reduced rates, contracts exempting or releasing carriers engaged in interstate traffic from liability for personal injuries to servants, etc., see post, Interstate and Foreign Commerce. That all charter and contract rights are subject to police regulation, see post. Po- lice Power. B. Police Power. — See ante, references under "In General," IV, A. See, generally, post. Police Power. D. Exercise of Eminent Domain. — See note 76. 820-36a. Display of advertisements on S. 650, 29 L. Ed. 516, 6 S. Ct. 252; Long vehicles in streets. — Fifth Ave. Coach Co. Island Water, etc., Co. v. Brooklyn, 166 V. New York, 221 U. S. 467, 55 L. Ed. 815, U. S. 685, 41 L. Ed. 1165, 17 S. Ct. 718; 31 S. Ct. 709, affirming 194 N. Y. 19, 86 Offield v. New York, etc., R. Co., 203 U. N. E. 824, 21 L. R. A. (N. S.), 744, 16 A. S. 372, 51 L. Ed. 231, 27 S. Ct. 72; Cincin- & E. Ann. Cas. 695, which affirms (1908), nati v. Louisville, etc., R. Co., 223 U. S. Ill N. Y. 1037, which affirmed Butchers 390, 56 L. Ed. 481, 32 S. Ct. 267. Union, etc., Co. v. Crescent City, etc., Co., Every contract, whether between the 111 U. S. 746, 28 L. Ed. 585, 4 S. Ct. 652. State and an individual, or between in- 828-76. The rights of eminent domain dividuals only, is subject to this general a sovereign right. — The constitutional in- law. There enters into every engage- hibition upon any state law impairing the ment the unwritten condition that it is obligation of contracts is not a limitation subordinate to the right of appropriation upon the power of eminent domain. The to a public use. Cincinnati v. Louisville, obligation of a contract is not impaired etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, when it is appropriated to a public use 32 S. Ct. 267; West River Bridge Co. v. and compensation made therefor. Such Dix, 6 How. 507. 12 L. Ed. 535; Long an exertion of power neither challenges Island Water, etc., Co. v. Brooklyn, 166 its validity nor impairs its obligation. U. S. 685, 692, 41 L. Ed. 1165, 17 S. Ct. Both are recognized, for it is appropri- 718. ated as an existing, enforceable contract. Same — Existing law as entering into It is a taking, not an impairment of its obligation of contract — Ordinance of obligation. If compensation be made, no 1787. — The power of eminent domain constitutional right is violated. Cincin- possessed by the state of Ohio was not nati V. Louisville, etc., R. Co., 223 U. S. restricted in any way after its admission 390, 56 L. Ed. 481, 32 S. Ct. 267. to the Union, by the provisions of the This has been so long settled as to 2d article of the ordinance of 1787 for the need only the citation of some of the government of the Northwest territory, many cases. Charles River Bridge relating to that subject. Cincinnati v. V Warren Bridge, 11 Pet. 420, 9 L. Ed. Louisville, etc.. R. Co., 223 U. S. 390, 56 773; West River Bridge Co. v. Dix, 6 L. Ed. 481, 32 S. Ct. 267. How. 507, 12 L. Ed. 535; New Orleans Speaking upon this point, the court Gas Co. V. Louisiana Light Co., 115 U. says: "It is next contended that whether 635 833-840 IMPAIRMENT, ETC., OF CONTRACTS. Vol. VI. E. Public Offices and Officers. — As to property or contract rights in public office lawfully purchased and held in Porto Rico or the Philippines prior to their cession to the United States, see post, Constitutional Law, p. 264. F. Control over Navigable Waters. — See note 95. V. Contracts of Private Individuals. B. How Obligation Impaired — 2. Law Affe:cting Validity, Construc- tion, Discharge and Enforcement — d. Lozn's Annexing Conditions to Its Bn- forcement. — See note 8. D. Contracts of Stockholders. — As to whether a statute regulating the manner in which a stockholder may transfer his stock impairs the obligation of his contract, see post, Stock and Stockholders. VI. Legislative Control over Public and Private Corporations. A. Legislative Control over Private Corporations. — See, generally, ante, Corporations, p. 381; Foreign Corporations, p. 584; post, Police Power. 2. Insurance: Companies. — See note 34. the provisions of article 2 now constitute the irrevocable fundamental law of Ohio or not, that that provision was the only law of eminent domain existing in 178".), and as such is to be regarded as read into the contract of dedication, and, there- fore, is the only power of eminent do- main to which that contract was subor- dinate. Upon this hypothesis is based the contention that any subsequent law of Ohio authorizing a taking of this prop- erty for a purpose or use not within the terms of the ordinance of 1787 is a law impairing the obligation of a contract. But the assumption that the power of eminent domain possessed by the North- west territory in 1787 was limited as claimed is untenable. The clause referred to assumes the existence of a general power of eminent domain in the govern- ment, and provides that, when exerted, there must be full compensation for the property ,taken or the services required." Cincinnati v. Louisville, etc., R. Co., 22:3 U. S. 390, 5G L. Ed. 481, 32- S. Ct. 267. _ The obligations of a contract by which a river front strip at Cincinnati was dedi- cated to the public use were not impaired by the condemnation, conformably to Ohio Rev. Stat., § 3283a, of a right of way for an elevated railroad track across such strip, even assuming that there is to be read into the contract the then-existing law of eminent domain, including the pro- visions of article 2 of the ordinance of 1787 for the government of the North- west territory, that "should the public exigencies make it necessary, for the com- mon preservation, to take any person's property, or to demand his particular service, full compensation shall be made for the same." Cincinnati v. Louisville, etc., R. Co., 223 U. S. 390, 56 L. Ed. 481, 32 vS. Ct. 267. 833-95. Control over navigable waters. — Tlie obligations of a contract to divert the waters of the Passaic River into an- other state, for use therein, are not un- constitutionally impaired by the enact- ment, in the exercise of the police power, of Laws N. J. 1905, p. 461, c. 238, under which such a diversion of water beyond the state is forbidden. Hudson County Water Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529, affirming Mc- Carter V. Hudson County Water Co., 70 N. J. Eq. 695, 65 Atl. 489. 835-8. Laws annexing conditions to con- tract. — The legislation which deprives one of the 1)enefit of a contract, or adds new duties or obligations thereto, necessarily impairs the obligation of the contract, and when the state court gives effect to subse- quent state or municipal legislation which has the effect to impair contract rights by depriving the parties of their benefit, and make requirements which the con- tract did not theretofore impose upon them, a case is presented for the juris- diction of the federal supreme court. Northern Pac. R. Co. v. Duluth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341; New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 351, 46 L. Ed. 936, 22 S. Ct. 691. 840-34. Statute authorizing adoption of premium place. — Contract obligations be- tween an association insuring lives upon the co-operative plan and its members are not unconstitutionally impaired by the reorganization of such association as a mutual level premium company, pursuant to Laws N. Y. 1901, p. 1779, c. 722, under a new name and without the consent of the members, because such statute pro- vides that outstanding assessment con- tracts shall be appraised as liabilities as if they were one-year term insurance at the asres attained. Polk v. Mutual, etc.. Life Ass'n, 207 U. S. 310, 52 L. Ed. 222, 28 S. Ct. 65. See. also, post, INSUR- ANCE; POLICE POWER. 636 Vol. VI. IMPAIRMENT, ETC., OF CONTRACTS. 846-848 3. Reorganization of Corporations. — See ante, "Insurance Companies," VI, A, 2. 5. Exemption from Governmental Control. — See ante, Corporations, p. 381 ; post, Police Power. As to contracts suspending the power of the state or city to regulate rates of public service companies, see ante, "Right to Contract Away Its Legislative Powers," III, J, 3 ; "Regulation of Rates," III, J, 5, b, (4) ; "Ordinances Granting Privileges to Public Service Companies," III, J, 6. See, also, post, Police Power. 7. Control of Water Companies. — See post. Water Companies and Waterworks. As to the power to regulate rates, compel company to make serv- ice connections at its own expense, etc., see post, Police Power. B. Legislative Control over Municipal Corporations — 1. In General.— Municipal Charter as a Contract between Municipality and the State. — See post, Municipal Corporations. 4. Power with Respect to Division of Towns and Alteration of Bound- aries — c. As Affecting Rights of Citizens and Taxpayers. — There is no contract between the citizens and taxpayers of a municipal corporation and the corpora- tion itself that the former shall be taxed for only the uses of that corporation, which is impaired by subjecting them to taxation for the uses of the enlarged municipality formed by annexation, under the authority of statute to an adjoin- ing and larger municipality. ^'^'^ 5. Municipal Debts — d. Limiting Taxing Pozver of Municipalities — (1) In General. — See notes 61. 62. 846-56a. As affecting rights of citizens and taxpayers. — Judgment, In re City of Pittsburg, 66 A. 348, 217 Pa. 227; Appeal of Hunter, Id., affirmed. Hunter v. Pitts- burgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. This assignment does not rest upon the theory that tlie charter of the city is a contract with the state, a proposition fre- quently denied by the federal supreme and other courts. It rests upon the novel proposition that there is a contract be- tween the citizens and taxpayers of a mu- nicipal corporation and the corporation itself, that the citizens and taxpayers shall be taxed only for the uses of that cor- poration, and shall not be taxed for the uses of anj' like corporation with which it may be consolidated. It is not said that the city of Allegheny expressly made any such extraordinary contract, but only that the contract arises out of the relation of the parties to each other. It is difficult to deal with a proposition of this kind except by saying that it is not true. Xo authority or reason in support of it has been offered to us, and it is utterly incon- sistent with the nature of municipal cor- porations, the purposes for which thej' are created, and the relation they bear to those who dwell and own property within their limits. This assignment of error is overruled. Hunter z'. Pittsburgh, 207 U. S. 161, 52 L Ed. 151, 2S S. Ct. 40. 848-61. Limiting taxing power of mu- nicipalities. — The power of taxation be- longs exclusively to the legislative de- partment, and the legislature may at any time restrict or revoke, at its pleasure. any of the powers of a municipal corpora- tion, including, among others, that of taxation, subject, however, to this quali- fication, which attends all state legisla- tion, that its action in that respect shall not conflict with the prohibitions of the constitution of the United States, and, among other things, shall not operate di- rectly upon contracts of the corporation, so as to impair their obligation by abro- gating or lessening the means of their enforcement. Hubert Z'. New Orleans. 215 U. S. 170, 54 L. Ed. 144, 30 S. Ct. 40. 848-62. Limitation on right to abridge city's taxing power. — No doubt a state may limit its control over the power of a municipal body to tax by authorizing it to make contracts on the faith of its ex- isting powers. Wolff z'. New Orleans, 103 U. S. 358, 26 L. Ed. 395; Hubert v. New Orleans, 215 U. S. 170, 54 L. Ed. 144, 30 ,S. Ct. 40; Arkansas, etc., R. Co. z'. Louisi- ana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. But unless it did limit its control with a certain distinctness of implication, a sul)ordinate body would contract subject, not paramoimt, to the power of the state. Manigault 7-. Springs, 199 U. S. 473, 480, 50 L. Ed. 274, 26 S. Ct. 127; Knoxville Water Co. v. Knoxville, 189 U. S. 434, 438, 47 L. Ed. 887, 23 8. Ct. 531; .A.rkansas, etc., R. Co. V. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. A number of decisions in the federal su- preme court have settled the law to be that, where a municipal corporation is au- thorized to contract, and to exercise the power of local taxation to lueet its con- 63'; 850-856 IMPAIRMENT, ETC., OF CONTRACTS. Vol. VL (2) Withdrawal of Right to Tax to Discharge Municipal Securities. — See note 65. e. Change in Subjects of Taxation. — See note 70. VII. Remedies. B. Limitations of General Rule. — See note 88. tractual engagements, this power must continue until the contracts are satisfied; and that it is an impairment of an obliga- tion of the contract to destroy or lessen the means by which it can be enforced. Hubert v. New Orleans, 215 U. S. 170, 54 L. Ed. 144, 30 S. Ct. 40. 850-65. Withdrawal of right to tax to discharge municipal securities. — In Ralls County Court z'. United States, 105 U. S. 733, 26 L. Ed. 1220, it was held that, after a debt was created upon certain bonds, laws passed depriving the county court of the power to levy the tax which it pos- sessed when the bonds were issued were invalid. Hubert v. New Orleans, 215 U. S. 170, 54 L. Ed. 144, 30 S. Ct. 40. The receiver of the metropolitan police board in the state of Louisiana, as repre- sentative of the interested creditors, is unconstitutionally deprived of the right of taxation by the city of New Orleans for the payment of their claims, which right existed before the enactment of Acts La. 1870, Ex. Sess., p. 10, No. 5, by the provisions of that act under which the payment of the judgment recovered by such receiver against the city upon out- standing indebtedness of the board, con- tracted on the faith of the exercise of the city's power to levy taxes for its" payment, may be indefinitely postponed until such time as the city is ready and willing to make such payment. Judgment (1907), 44 So. 321, 119 La. 623, reversed. Hubert r. New Orleans, 215 U. S. 170, 54 L. Ed. 144, 30 S. Ct. 40. "We think the doctrine of the Ralls County case, when applied to the facts in the case at bar, is decisive. The city levied and afterwards collected taxes for the benefit of the metropolitan police board. The police board had issued its outstanding warrants for salaries, etc., upon the faith of the exercise of the tax- ing power for their payment. The con- tract creditors of the police board were entitled to rely upon the benefit of the laws imposing taxation to make their obligations effectual. They could not, constitutionally, be deprived of such bene- fit." Hubert v. New Orleans, 215 U. S. 170, 54 L. Ed. 144, 30 S. Ct. 40. The power of taxation conferred by law entered into the obligation of the con- tracts, and any subsequent legislation withdrawing or lessening such power, leaving the creditors without adequate means of satisfaction, impaired the obli- gation of their contracts, within the mean- ing of the constitution. Hubert v. New Orleans, 215 U. S. 170, 54 L. Ed. 144, dCh S. Ct. 40; Memphis v. United States, 97 U. S. 293, 24 L. Ed. 920; Von Hofifman v. Quincy, 4 Wall. 535, 18 L. Ed. 403; Sei- bert V. Lewis, 122 U. S. 284, 30 L. Ed. 1161, 7 S. Ct. 1190; Mobile v. Watson, 116 U. S. 289, 29 L. Ed. 620, 6 S. Ct. 398; Scot- land County Court v. Hill, 140 U. S. 41, 35 L. Ed. 351, 11 S. Ct. 697. 851-70. Change in subjects of taxation. — An authority given by the state to promise and levy a tax in future years on the taxable property in the parish does not purport to limit the power of the state to say what property shall be taxable when the time comes, at least, by general regulations not aimed at aiding an evasion of the promise it has allowed. Arkansas, etc., R. Co. V. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. A vote by a parish to pay 5 mills on all the taxable property within its boundaries refers on its face to a determination by the sovereign as to what that property shall be taxed. Arkansas, etc., R. Co. v. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. The obligation of a valid municipal grant of a special tax of five mills in aid of a specified railway company, effective against all the taxable property in the parish, is not unconstitutionally impaired by the subsequent adoption of a new state constitution under which any property in the parish passing into the possession of any railroad thereafter constructed be- comes exempt from the tax. (1910), /Ar- kansas, etc., R. Co. 7'. Louisiana, etc., R. Co., 218 U. S. 431, 54 L. Ed. 1097, 31 S. Ct. 56. affirming decree in Louisiana & A. Ry. Co. 7'. Shaw (1908), 46 So. 994, 121 La. 997. See, also, ante, "In General," III, J, 5, a. (1). 856-88. Statutes operating on the rem- edy may impair its obligation. — The obli- gation is impaired in the sense of the con- stitution, when the means by which aeon- tract, at the time of its execution, could be enforced, that is, by which the parties could be obliged to perform it, are ren- dered less efficacious bj^ legislation oper- ating directly upon those means. Hubert V. New Orleans, 215 U.' S. 170, 54 L. Ed. 144, 30 S. Ct. 40. 638 Vol. VI. IMPRISONMENT FOR DEBT. 870-890 K. Statutory Liabilities— 2. Liability of Stockholders— a. In General. — See note 32. IMPEACHMENT.— See post, Judgments and Decrees. IMPEACHMENT OF WITNESS.— See post, Witnesses. IMPLIED CONTRACTS.— See the title Implied Contracts, vol. 6, p. 888, and references there given. IMPLIED TRUSTS.— See post, Trusts and Trustees. IMPLIED WARRANTY.— See post. Warranty. IMPORTS— IMPORTED.— See ante. Exports and Imports, p. 570; post, Revenue Laws. IMPOSED.— See note 2a. IMPOST. — See ante, Duties, p. 533; post, Revenue Laws; Taxation. IMPRISONMENT FOR DEBT. II. Statutory Provisions Regulating or Abolishing Imprisonment for Debt, 639. C. Effect upon Enforcement of Penal Statutes Imposing Payment of Money as Penalty, 639. CROSS REFERENCES. See the title Imprisonment for Debt, vol. 6. p. 892, and references there given. II. Statutory Provisions Regulating or Abolishing Imprisonment for Debt. C. Effect upon Enforcement of Penal Statutes Imposing Payment of Money as Penalty. — Statutes relieving from imprisonment for debt were not intended to take away the right to enforce criminal statutes and punish wrongful embezzlements or conversions of money. It was not the purpose of this class of legislation to interfere with the enforcement of such penal statutes, although pro- 870-32. Character and nature of remedy 890-2a. The inheritance tax imposed by against stockholders may be changed. — § 29 of the War Revenue Act of June 13, The substitution for individual actions to 1898. although not due and payable un- enforce the "statutory liability of stock- der § 30 thereof, as amended by § 11 of holders in a Kansas corporation of a suit the Act of March 2, 1901, until one year in equity by a receiver appointed after after the death of the testator, must be judgment against the corporation, which deemed to have become an obligation is made by Laws Kan. 1898 (Sp. Sess.), immediately upon the passing by death p. 32. c. 10, does not unconstitutionally of a vested right to the present posses- impair the obligation of the contract un- sion or enjoyment of the legacy or dis- der which the stockholders acquired their tributive share, so as to be within the stock. Henley v. Myers, 215 U. S. 373, saving clause of the Repeal Act of April 54 L. Ed. 240,' 30 S. Ct. 148. 12, 1902, § 8, preserving all taxes imposed In becoming stockholders, the defend- prior to the taking effect of that act, al- ants did not acquire a vested right in any though the testator's death was less than particular mode of procedure adopted for one year prior to such date, in view_ of the purpose of enforcing their liability as § 13 of the Revised Statutes, providing stockholders. It is a well established that the repeal of any statute shall not doctrine that m.ere methods of procedure have the effect to release or _ extinguish in actions on contract, that do not afifect any penalty, forfeiture, or liability in- the substantial rights of parties, are al- curred thereunder, unless a repealing act waj'S within the control of the state. It shall expressly so provide. Hertz v. is to be assumed that parties make their Woodman. 218 U. S. 205, 54 L. Ed. 1001. contracts v/ith reference to the existence .30 S. Ct. 621. See post, REVENUE of such power in the state* Henley v. LAWS; TAXATION. Myers, 215 U. S. 373. 54 L. Ed. 240, 30 S. Ct. 148. 639 893-901 INCORPORATION. \o\. VI. viding for the payment of money as a penalty for the commission of an offense. Such laws are rather intended to prevent the commitment of debtors to prison for liabilities arising upon their contracts.^'' IMPROVEMENTS. — See the title Improvements, vol. 6, p. 896, and refer- ences there given. IMPUTABLE NEGLIGENCE.— See post, Negligence. IMPUTED KNOWLEDGE.— See post, Officers and Agents of Private Corporations. INADEQUATE CONSIDERATION.— See ante, Fraud and Deceit, p. 597. INCHOATE LIENS.— See note la. INCIDENTAL AND IMPLIED POWERS.— See ante. Banks and Banking, p. 184; Constitutional Law, p. 264; Corporations, p. '381; post. Insurance; Principal and Agent. INCLUDING. — The word "including" may have the sense of addition, and of "also;" but it "may merely specify particularly that which belongs to the genus." It is the participle of the word "include," which means, according to the defini- tion of the Century Dictionary, (1) "to confine within something; hold as in an inclosure; to inclose; to contain." (2) "To comprise as a part, or as something incident or pertinent ; comprehend ; take in ; as the greater includes the less." "Including" being a participle is in the nature of an adjective and is a modifier.^ INCOME TAX.— See post. Revenue Laws. INCORPORATION. — See ante. Banks and Banking, p. 184; Corporations, p. 381. 893-3a. Effect upon enforcement of penal statutes. — Freeman v. United States, 217 U. S. 539, 54 L. Ed. 874, 30 S. Ct. 592. Imprisonment for debt, contrary to Act July 1, 1902, c. 1369, § 5, 32 Stat. 692, is not provided by the Philippine Penal Code, under which a person convicted of embezzlement may be made to suffer a subsidiary imprisonment for a term not exceeding one-third of the principal pen- alty, in lieu of the restoration of the sum found to be embezzled, with the right to be released from such subsidiary punish- ment upon payment of the money wrong- fuUv converted. Freeman v. United States, 217 U. S. 539, 54 L. Ed. 874. 30 S. Ct. 502. 900-la. Liens prior to levy. — In some cases liens in favor of laborers, me- chanics and contractors date from com- mencement of the work, or from the completion of the contract. In others, prior to levy they are referred to as be- ing dormant or inchoate liens, or as "a right to a lien." Henderson v. Mayer, 225 U. S. 631, 637, 56 L. Ed. 1233, 32 S. Ct. 699 901-a. Including. — Montello Salt Co. v. Utah. 221 U. S. 452, 464, 55 L. Ed. 810, 31 S. Ct. 706. Grant of lands. — Section 8 of the En- abling Act of the state of Utah provided: "That lands to the extent of two town- ships in quantity, served for the estab- lishment of the University of Utah, are hereby granted to the state of Utah for university purposes, to be held and used in accordance with the provisions of this section; and any portion of said lands that may not have been selected by said territory may be selected by said state. That in addition to the above, one hun- dred and ten thousand acres of land, to be selected and located as provided in the foregoing section of this act, and including all the salme lands m said state, are hereby granted to said state, for the use of said university, and two hun- dred thousand acres for the use of an agricultural college therein." The word including modifies the preceding sub- stantive phrase "one hundred and ten thousand acres of land," and the mean- ing of the section is that the saline lands are to be contained in or comprise a part of the 110,000 acres of land. The word "and" gives in connection with includ- ing a quality to the grant of 110,000 acres which it would not have had — the quality of selection from the saline lands of the state. That such quality would not exist unless expressly conferred can not be controverted. Under the applicable stat- utes and uniform policy of the govern- ment saline lands would not have been subject to selection in satisfaction of the 110.000 acre grant in the absence of a special provision authorizing their selec- tion. Montello Salt Co. v. Utah, 221 U. S. 452, 55 L. Ed. 810, 31 S. Ct. 706. See post, PUBLIC LANDS. 640 Vol. VI. INDIANS. IN CUSTODIA LEGIS.— See ante, AttachmiJnt and Garnishment p 156- Courts, p. 398. ' INDEMNITY.— See the title Indemnity, vol. 6. p. 902, and references there given. See, also, ante, Baii. and Recognizance, p. 166; Illegal Contracts p. 622 ; post. Parties. ' INDEMNITY LANDS.— See post, Public Lands. INDEMNITY LIMIT.— See post, Public Lands. INDEPENDENT CONTRACTORS.— See the title Independent Contract- ors, vol. 6, p. 904, and references there given. INDEX. — See post. Lis Pendens. INDIAN AGENT.— See ante. Estoppel, p. 553 ; post, Indians. INDIAN COMMERCE.— See post. Interstate and Foreign Commerce INDIAN COUNTRY.— See post, Indians; Interstate and Foreign Com- merce. INDIAN DEPREDATION ACT.— See post, Indians ; New Trials. INDIAN LANDS.— See post, Indians; Public Lands. INDIANS. I. Definitions and General Considerations, 642. C. What Constitutes Indian Country, 642. D. Status of Nations or Tribes, 643. II. Citizenship of Indians, 643. B. Tribal Citizenship, 643. 3. Power of Secretary and Control of Courts, 643. III. Property Rights, 643. A. Property Rights of Nations or Tribes, 643. 1. Nature of Indian Title, 643. • d. Common Right of Members of Tribe in Tribal Property, 643. 4. Grants by LTnited States to Indians, 643. b. Construction of Grant, 643. 5. Cession of Lands by Indians to L'nited States, 643. a. Property Passing, 643. 11. Reservation of Water Rights for Irrigation, 643. B. Individual Property Rights, 644. 2. Allotment of Lands to Indians, 644. a. Persons Entitled to Allotments, 644. (1) Power of Congress to Provide for Ascertaining. 644. (45^) Cherokee Children — Rights in Allotments, 644. (6) Necessity for Allottee to Reside on Reservation, 645. (6^) Determination of Tribal Citizenship and Relation, 645. (9) Vesting of Right to Patent, 646. c. Sale of Allotment, 646. (1) Right to Sell, 646. (a) In Absence of Restriction, 646. (b) Restrictions on Sale, 646. aa. Postponement of Right to Sell, 646. (2) Mode of Sale, 647. (a) Compliance with Statute, 647. (b) Approval by President or Secretary, 647. e. Actions with Respect to Allotments, 647. 12 U S Enc— 41 641 912-913 INDIANS. Vol. VL (2) Parties, 647. f. Land Subject to Allotment, 648. g. Designation of Homestead, 648. h. Taxation of Allotmeht, 648. IV. Government of Indians and Indian Country, 649. A. Power of United States, 649. 1. In General, 649. V. Jurisdiction over Indians and Indian Country, 649. A, Criminal Jurisdiction, 649. 1. Crimes by Indians, 649. a. Crimes on Indian Reservation, 649. (1) Indian Reservation within State, 649. (b) United States Courts, 649. bb. Crimes against Other Indians, 649. 2. Crimes by Persons Other than Indians, 649. b. On Indian Reservation within Territory, 649. VI. Taxation, 649. A. Indian Property, 649. XI. Annuities and Appropriations, 649. CROSS REFERENCES. See the title Indians, vol. 6, p. 906, and references there given. As to granting right of way to railroad through Indian land as infringing rights under treaty of May 30, 1860, see post, Pubuc Lands. I. Definitions and General Considerations. C. What Constitutes Indian Country. — See notes 16, 20. Act of July 23, 1892, Amending Rev. Stat. 2139.— The words, "Indian country," as used in the Revised Statutes of the United States, § 2139, as amended and re-enacted by Act of July 23, 1892, c. 234, 27 Stat. 260, forbidding the introduction of intoxicating liquors into such country, do not, standing alone, embrace territory in which, at the time, the Indian title had been extinguished, and over which, with its inhabitants, the jurisdiction of the state, for all pur- poses of government, was full and complete. ^^^ 912-16. Act of June 30, 1834. — "The Act Indian country shall, for a period of 25- of June 30, 1834, chap. 161 (4 Stat, at L. years, apply to the lands thereby ceded 729), thus defined 'the Indian country.' to the United States and to those retained 'That all that part of the United States by the Indians and to those allotted to west of the Mississippi, and not within them in severalty, was a valid regulation, the state of Missouri and Louisiana, or based upon the treaty-making power of the territory of Arkansas, and also that the United States and upon the power of part of the United States east of the Mis- congress to regulate commerce with the sissippi river, and not within any state to Indians, and was not an invasion of the which the Indian title has not been ex- sovereignty of the state of Idaho, which tinguished, for the purposes of this act, had by Act July 3, 1890, c. 656, 26 Stat, be taken and deemed to be the Indian 215, been admitted into the Union upon country.' " Clairmont v. United States, an equal footing with the other states. 225 U. S. 551, 56 L- Ed. 1201, 32 S. Ct. Dick v. United States, 208 U. S. 340, 52 787. U. Ed. 520, 28 S. Ct. 399. See pest, IN- 913-20. Continuation in force of laws TERSTATE AND FOREIGN COM- as to Indian country upon cession to MERGE. United States. — The stipulation in the 913-20a. Act of July 23, 1892, c. 234, agreement of May 1, 1893, between the amending Rev. Stat., § 2139. — Dick v. United States and the Nez Perce Indians, United States, 208 U. S. 340, 52 L. Ed. that the federal laws prohibiting the in- 520, 28 S. Ct. 309. troduction of intoxicating liquors into the 642 Vol. VI. INDIANS. 915-924 D. Status of. Nations or Tribes. — Congress, in pursuance of the long- established policy of the government, has a right to determine for itself when the guardianship which has been maintained over the Indian shall cease. ^'^'^ II. Citizenship of Indians. B. Tribal Citizenship — 3. Power of Secretary and Contrge oe Courts. — See post, "Determination of Tribal Citizenship and Relation," III, B, 2, a, 6^. III. Property Rights. A. Property Rights of Nations or Tribes — 1. Nature of Indian Titee — d. Common Right of Members of Tribe in Tribal Property. — See note 50. 4. Grants by United States to Indians — b. Construction of Grant. — And such a grant or reservation may be one to the Indian tribe as a nation and also limited in point of time to the corporate existence of the nation. ^^^ 5. Cession of Lands by Indians to United States — a. Property Passing. — Tribal rights only were retained by the Wyandotte Indians in and over their cemetery, under Wyandotte Treaty Jan. 31, 1855 (10 Stat. 1159) art. 2, by which they ceded their land to the United States for subdivision in severalty to the members of the tribe, excepting the portion then inclosed and used as a public burying ground, which was permanently to be reserved and appropriated for that purpose. ^^^ The United States retained the same exclusive power over land used for an Indian burying ground, which was excepted in "VVyandotte Treaty Jan. 31, 1855 (10 Stat. 1159), art. 2, from the cession of the lands of the tribe for subdivision in severalty to the members, that it would have had if the tribe had continued in existence after that treaty. ^^^ 11. Reservation of Water Rights for Irrigation. — A reservation of the waters of Milk River for irrigation purposes in favor of the Indians on the Fort 915-27a. Power of congress to de- termine termination of guardianship. — Tiger v. Western Invest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578, reversing 96 P. 602, 21 Okl. 630. 921-50. Indian title is in tribe not in- dividual. — There is no vested interest in unallotted tribal lands and undistributed tribal funds. The lands and moneys of an Indian tribe are public lands and pub- lic moneys. (1910), Sac and Fox Indians of the Mississippi in Iowa v. Sac and Fox Indians of the Mississippi in Oklahoma, 45 Ct. CI. 287, judgment affirmed. Sac and Fox Indians v. Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. "Anterior to this legislation the lands and funds belonged to the tribe as a com- munity, and not to the members sever- ally or as tenants in common. The right of each individual to participate in the enjoyment of such property depended upon tribal membership and when that was terminated by death or otherwise the right was at an end. It was not alienable or descendible. And when children were born into the tribe they became thereby members, and entitled to all the rights incident to that relation." Gritts v. Fisher, 224 U. S. 640, 56 L. Ed. 928, 32 S. Ct. 580. 924-62a. Reservation or grants to In- dian nations or tribes. — No trust in favor of the then existing members of the tribe and their descendants was created by let- ters patent which, following the language of the Choctaw treaty Sept. 27, 1830 (7 Stat. 333), art. 2, under the authority of which the patent was made, granted to the Choctaw Nation a tract of land "in fee simple, to them and their descendants, to inure to them while they shall exist as a nation and live on it," but such grant was one to the Nation only, limited in point of time to the corporate existence of the nation. Fleming v. McCurtain, 215 U. S. 56, 54 L. Ed. 88, 30 S. Ct. 16. 924-68a. Reservation in cession. — Con- ley V. Ballinger, 216 U. S. 84, 54 L. Ed. 393, 30 S. Ct. 224. See, also, post, TREATIES. 924-68b. Extent of reservation of bury- ing ground. — Conley 2'. Ballinger. 216 U. S. 84, 54 L. Ed. 393, 30 S. Ct. 224. An individual descendant of Wyandotte Indians has no right, as against the United States, to the continued use as a cemetery of the parcel of land excepted in Wyan- dotte Treaty Jan. 31, 1855 (10 Stat. 1159), art. 2, ceding the lands of the tribe to the United States for subdivision in severalty to the members, except the portion then inclosed and used as a public burying ground, which was permanently to be re- served and appropriated for that purpose. Conley v. Ballinger, 216 U. S. 84, 54 L. Ed. 393, 30 S. Ct. 224. 643 931-933 IXDIANS. Vol. VI. Belknap reservation will be implied from the agreement of May 1, 1888 (25 Stat. 113, c. 213), by which the Indians, having the right to occupy and use a large tract of arid lands, ceded to the United States all those lands except a small tract set apart as such reservation.^^ And such reservation was not repealed by the admission of Montana as a state. ^'' B. Individual Property Rights — 2. Allotment of Land to Indl\ns — a. Persons Entitled to Allotments — (1) Power of Congress to Provide for As- certaining. — Policy of Congress. — During the last twenty years congress has enacted a series 'of laws looking to the allotment and distribution of the lands and funds of the Five Civilized Tribes, of which the Cherokee tribe is one, among their respective members, and to the dissolution of the tribal governments. An extended statement of these laws, so far as they concern the Cherokees, as also of the title by which their lands and funds have been held and of the re- lations of the tribe and its members to the United States, will be found in the cases cited in the footnote. ^^'^ {4-/4) Cherokee Children — Rights in Allotments. — Children born to en- rolled members of the Cherokee tribe after September 1, 1902, though expressly excluded by the Act of July 1, 1902, from enrollment or participation in the dis- tribution of the tribal property, were, if living on March 4, 1906, embraced by tlie provision of the Act of April 26, 1906, § 2, as amended by the Act of June 21, 1906, for the enrollment of "children who were minors living ]March 4, 1906."^''^ The vested rights of original allottees are not impaired by legislation admitting newly born Cherokee children.!'^'' 931-8a. Reservation of water rights for irrigation. — Winters v. United States, 207 U. S. 564, 52 L. Ed. 340, 28 S. Ct. 207. 931-8b. Effect of admission of Montana as a state. — The reservation of the waters of Milk river for irrigation purposes, im- plied in favor of the Indians on the Fort Belknap reservation from the agreement of May 1, 1888 (25 Stat. 113, c. 213), in which the Indians ceded to the United States all their lands except a small tract set apart as such reservation, was not re- pealed by the admission of Montana into the Union by Act Feb. 22, 1889, c. 180, 25 Stat. 676, on an equal footing with the original states. Judgment (1906), 148 F. 684, 78 C. C. A. 546, affirmed. Winters v. United States, 207 U. S. 564, 52 L. Ed. 340, 28 S. Ct. 207. 932-lOa. Policy of congress. — Gritts v. Fisher, 224 U. S. 640, 56 L. Ed. 928, 32 S. Ct. 580, citing Stephens v. Cherokee Na- tion, 174 U. S. 445, 43 L. Ed. 1041, 19 S. Ct. 722; Cherokee Nation v. Hitchcock, 187 U. S. 294, 47 L. Ed. 183, 23 S. Ct. 115; Cherokee Intermarriage Cases, 203 U. S. 76, 51 L. Ed. 96, 27 S. Ct. 29; Lowe v. Fisher, 223 U. S. 95, 56 L. Ed. 364, 32 S. Ct. 196. and Heckman r. United States, 224 U. S. 413, 56 L. Ed. 820, 32 S. Ct. 424. The Steenerson Act of April 28, 1904, providing for the allotment of lands to the Chippewa Indians on the White Res- ervation, was part of a general congres- sional scheme, and modified and changed the prior Acts of February 8, 1887, Jan- uary 14, 1889, and February 28, 1891, by superseding certain of their provisions and enlarging the quantity of land to be allotted. Fairbanks v. United States, 223 U. S. 215, 56 L. Ed. 409, 32 S. Ct. 292. '"Under treaties with the United States the tribe maintained a government of its own, with legislative and other powers, but this was a temporary e.xpedient, and in time proved inefficient and unsatisfac- tory. As in the instance of other tribal Indians, the members of this tribe were wards of the United States, which was fully empowered, whenever it seemed wise to do so, to assume full control over them and their afifairs, to determine who were such members, to allot and dis- tribute the tribal lands and funds among them, and to terminate the tribal govern- ment." Gritts V. Fisher, 224 U. S. 640, 56 L. Ed. 928, 32 S. Ct. 580. 933-17a. Cherokee children. — Gritts v. Fisher, 224 U. S. 640, 56 L. Ed. 928, 32 S. Ct. 580. 933-17b. Effect of admission — Newly- born children. — Vested rights of members of the Cherokee tribe living on Septem- ber 1, 1902, and enrolled under the Act of July 1, 1902, to participate in the allot- ment and distribution of the remaining tribal lands and funds, were not de- stroyed, their individual allotments not be- ing afifected, by the provision of the Act of April 26, 1906, § 2, as amended by the Act of June 21, 1906. for admitting newly- born members of the tribe to the allot- ment and distribution from which they were excluded by the earlier act if born after September 1, 1902. Gritts v. Fisher, 224 U. S. 640, 56 L. Ed. 928, 32 S. Ct. 580. 644 Vol. \1. INDIANS. 934 (6) Necessity for Allottee to Reside ou Reservation.— An Indian need not have been on the reservation at the instant when the Act of February 28, 1891, amending the General Allotment Act of February 8, 1887, was passed, in order to avail himself of the benefit of the provision of the latter act giving to each Indian "located" thereon one-eighth section of land.^o^ (6>^) Determination of Tribal Citizenship and Relation.— kutYioriiy and Power of Secretary of Interior.— The revisory and corrective power of the secretary of the interior over Indian allotments and his authority and power to strike the names of the allottees from approved rolls depends entirely upon the statutes existing at the time.^'*'^ And the courts have power to control his action in this regard by mandamus.2o<= And a subsequent roll of allottees conformable to the law may supersede a prior roll. 2"'' 934-20a. Necessity for allottee to reside on reservation. — Fairbanks v. United States, 223 U. S. 215, 56 L. Ed. 409, 32 S. Ct. 292. 934-20b. The revisory and corrective power of the secretary of the interior over Indian allotments under the Acts of March 3. 1905, and April 26, 1906, in- cludes the right, upon notice and hearing, to strike from the approved roll of citi- zens of the Five Civilized Tribes of the names of Cherokee freedmen allottees be- cause their ancestors had not returned to the Cherokee Nation within the time designated by a treaty stipulation, al- though, by the Act of July 1, 1902, § 29, "when there shall have been submitted to and approved by the secretary of the in- terior lists embracing the names of all those lawfully entitled to enrollment, the roll shall be deemed complete." Lowe :'. Fisher, 223 U. S. 95, 56 L. Ed. 364, 32 S. Ct. 196. The enrollment of Cherokee freedmen on the tribal rolls is not to be taken as absolutely confirmed by the confirmatory provision of the Act of June 10, 1896 (29 Stat, at L. 321, chap. 398), in view of the requirements of the subsequent Acts of June 28, 1898 (30 Stat, at L. 495, chap. 517), § 1. July 1, 1902 (32 Stat, at L. 716, chap. 1375), § 27, and April 26, 1906 (34 Stat, at L. 137, chap. 1876), § 3, that a roll of Cherokee freedmen be made in strict compliance with a decree of the court of claims, so as to exclude freedmen and their descendants who had not returned to the Cherokee Nation witliin the time designated by the treaty stipulation. Lowe V. Fisher, 223 U S. 95, 56 L. Ed. 364, 32 S. Ct. 196. Erasure of name from approved roll of allottees. — The secretary of the interior is without authority to erase from the ap- proved rolls of citizenship in the Choctaw and Chickasaw Nations, without notice or hearing, the name of one who has received an allotment certificate and is in possession of the land. Garfield v. Goldsby. 211 U. S. 249, 53 L. Ed. 168, 29 S. Ct. 62, affirming 30 App. D. C. 177; Garfield v. Allison, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. The cancellation of Indian allotments by the secretary of the interior after re- peated changes in views and decisions in the department can not be said to have been ordered without notice and oppor- tunity to be heard, where the proceed- ings leading up to such action were single and continuous, at one time one party prevailing, and at other times the other party, the first party finally succeeding. Fairbanks v. United States, 223 U. S. 215, 56 L. Ed. 409, 32 S. Ct. 292. 934-20C, Mandamus. — As to mandamus as remedy where secretary of interior has erased name of allottee from rolls of citi- zenship in Indian nations, see post, MAN- DAMUS. The fact that the legal title to allottable Indian lands is still in the government does not defeat the jurisdiction of a court over a suit to compel the secretary of the interior to undo, as wholly unwar- ranted and unauthorized by law, his ac- tion in summarily erasing from the ap- proved rolls of citizenship in the Choctaw and Chickasaw Nations the name of one who has received an allotment certificate and is in possession of the land. Judg- ment (1907), 30 App. D. C. 177. affirmed. Garfield v. Goldsby, 211 U. S. 249, 53 L. Ed. 168, 29 S. Ct. 62; Garfield v. Allison, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. See post, MANDAMUS. 934-20d. Superseding former roll. — The roll of tlie Cherokee freedmen. made by administrative officers under instructions frotn the court of claims, which, under the Act of October 1, 1890, had determined the rights of such freedmen in the tribal propertj', was superseded by the roll made by the ,Daws commission con- formably to the provisions of the subse- quent Acts of June 28, 1898, and July 1, 1902, directing such commission to make a roll of Cherokee freedmen in strict com- pliance with the decree of the court of claims. Cherokee Nation v. Whitmire, 223 U. S. 108, 56 L. Ed. 370, 32 S. Ct. 200. 015 935-936 INDIANS. Vol. VI. (9) Vesting of Right to Patent. — When an Indian allottee's right to a patent became vested, it could not thereafter be interfered with by the secretary of the interior, in an unlawful attempt to cancel the allotment. ^'^^ c. Sale of Allotment — (1) Right to Sell — (a) In Absence of Restriction. — Of course when no restriction against alienation was operative a conveyance was valid and passed all title or interest according to the nature of the deed.-^^ Heirs of Allottee. — The heirs of a deceased Indian allottee under the supple- mental agreement of July 1, 1902, with the Choctaws and Chickasaws, have a complete equitable interest which, in the absence of restrictions, they may con- vey before patent.-*"^ (b) Restrictions on Sale — aa. Postponement of Right to Sell. — Extension of Inalienability Period. — Congress could lawfully enact the provisions of the Act of April 26, 1906 (34 Stat, at L. 137, chap. 1876), § 19, extending the period of inalienability fixed by the Act of July 1, 1902 (32 Stat, at L. 716, chap. 1375), §§ 11-15, with respect to lands allotted to the Cherokee Indians of the full blood. ^'^^ Operation and Effect of Conveyance. — A conveyance made during the in- alienability period is invalid and may be set aside by the federal government.^^'' In some cases conveyance made prior to patent were invalid. ^'^'^ 935-24a. Vesting of right to patent.— Where an enrolled member of the Choc- taw Nation, entitled to share in the al- lotment of tribal lands, selected as her allotment a 40-acre lot on which were her buildings and improvements, and re- ceived a certificate of allotment from the tribal commission, after the expiration of the time prescribed for contest, no con- test having been made, and afterwards re- ceived a patent therefor from the chief authorities of the Choctaw and Chicka- saw Nations, her right to a patent be- came vested, and the secretary of the interior could not thereafter, as he at- tempted to do, segregate the land for townsite purposes, as having been under urban occupancy, and cancel her allot- ment, with leave to select other lands in lieu thereof. Judgment Garfield z'. United States (1907), 30 App. D. C. 165, affirmed. Ballinger v. Frost, 216 U. S. 240, 54 L. Ed. 464. 30 S. Ct. 338, See, also, post, PUBLIC LANDS. 936-26a. Absence of restriction.— The removal by the Act of April 21, 1904, of restrictions upon alienation of lands of all allottees of either of the five civilized tribes not of Indian blood, except minors, and except as to homesteads, left adult Seminole freedmen allottees, under the Act of July 1, 1898, free thereafter to convey before patent the surplus lands allotted to them in severalty under that act. Goat v. United States, 224 U. S. 458, 56 L. Ed. 841, 32 S. Ct. 544. 936-26b. Heirs of allottee.— Mullen v. United States, 224 U. S. 448, 56 L. Ed. 834, 32 S. Ct. 494. The restrictions upon alienation by the heirs of an Indian allottee of the land allotted in excess of that designated as a homestead, made by paragraph 16 of the supplemental agreement of July 1, 1902, with the Choctaws and Chichasaws, are not applicable where a person whose name appeared upon the rolls died after the ratification of the agreement, and before receiving the allotment, in which case provision was made in paragraph 22 for allotment in the name of the deceased per- son, and for the descent of the land to his heirs, with no requirement for the selec- tion of any portion of the allotted lands as a homestead. Mullen v. United States, 224 U. S. 448, 56 L. Ed. 834, 32 S. Ct. 494. 936-27a. Extension of inalienability ' period. — Heckman v. United States, 224 U. S. 413, 56 L. Ed. 820, 32 S. Ct. 424. 936-27b. Operation and effect of con- veyance. — Conveyances by Seminole freed- men of lands allotted to them in severalty for homesteads under the Act of July 1, 1898 (30 Stat, at L. 567, chap. 542), 'ex- ecuted before the provisions of the Act of May 27, 1908 (35 Stat, at L. 312, chap. 199), removing the restrictions upon the alienation of such lands, became opera- tive, were invalid, and the federal govern- ment is entitled to have them set aside. Goat V. United States, 224 U. S. 458, 56 L. Ed. 841, 32 S. Ct. 544. Conveyances of surplus lands by adult Seminole freedmen allottees under the Act of July 1, 1898, executed before pat- ent, and prior to the Act of April 21, 1904 (33 Stat, at L. 189, chap. 1402), removing restrictions on alienation, are invalid, as are also conveyances by such allottees being minors, and expressly excepted from the provisions of that act. Goat v. United States, 224 U. S. 458, 56 L. Ed. 841. 32 S. Ct. 544. 936-27C. Conveyance prior to patent. — The mere authorization by the Act of April 26, 1906 (34 Stat, at L. 138, chap. 646 Vol. VI. INDIANS. 936 (2) Mode of Sale — (a) Compliance with Statute. — The consent of an In- dian allottee to sale of Indian land not required for their homes survives his decease.^ °^ (b) Approval by President or Secretary. — See note 32. Restrictions in a pat- ent of timber land to an Indian upon the sale, lease, or alienation of the tract conveyed without the consent of the president extend to the sale of the timber on such tract. ^^'^ e. Actions zvith Respect to Allotments — (2) Parties. — The Indian grantors are not necessary parties to a suit by the United States to cancel conveyances of 1876), of the execution of the patents to Seminole allottees under the Act of July 1, 1898, before the tribal government ceased to exist, when, by virtue of the earlier act, the allottee were to receive their deeds, did not operate as a repeal of the explicit provisions of that act mak- ing invalid all contracts for the sale, dis- position, or encumbrance of any part of any allotment made prior to the date of patents. Goat v. United States. 224 U. S. 458, 56 L. Ed. 841, 32 S. Ct. 544. Conveyances by the heirs of an Indian allottee under the supplemental agree- ment of July 1, 1902, with the Choctaws and Chickasaws, whose ancestor died after the ratification of the agreement and before reviewing his allotment, not being under restriction, can not be held invalid because made before the issuance of a patent, in view of the provision of the Act of April 26, 1906 (34 Stat, at L. 144, chap. 1876), § 19, subsequently enacted, that conveyances theretofore made by members of any of the Five Civilized Tribes subsequent to the selection of allotment and to the removal of restric- tions, where patents thereafter issue, shall not be held invalid solely because such conveyances were made prior to the patent. Mullen v. United States, 224 U. S. 448, 56 L. Ed. 834, 32 S. Ct. 494. 936-30a. The consents of the Puyallup Indian allottees and owners to the sale of such portion of the lands allotted to them under the treaty with the Omahas as was not required for their homes, when given and approved conformably to the Act of March 3, 1893, must be deemed to survive their decease, in view of the provision of the act that such consents should make the commissioner appointed thereunder trus- tee to sell the lands and make deeds to the purchasers for the same, subject to approval of the secretary of the interior, which deeds should operate as a coinplete conveyance of the land upon the full pay- ment of the purchase money. Jacobs v. Prichard, 223 U. S. 200, 56 L. Ed. 405, 32 S. Ct. 289. 936-32. Approval of president or secre- tary. — The approval by the commissioner of Indian affairs of a contract for the sale of timber by an Indian allottee, which, under the rules and regulations estab- lished by the president on December 6, 1893, pursuant to article 3 of the treaty with the Chippewa Indians of September 30, 1854 (10 Stat. 1110), was to "operate as specific consent of the executive to the sale of the timber to which the contract relates," did not end the authority of the president, so as to prevent a modification of the contract by making it subject to an amendment of those rules, giving the In- dian agent, subject to the approval of the commissioner of Indian affairs, authority to fix the sums which an allottee should be permitted to withdraw from the pro- ceeds of the timber deposited in a na- tional bank. Starr v. Campbell, 208 U. S. 527, 52 L. Ed. 602, 28 S. Ct. 365. Alienation by Creeks. — The prohibition against the alienation of allotted lands by the allottee or his heirs, without the ap- proval of the secretary of the interior, created by the supplemental Creek agree- ment of June 30, 1902 (32 Stat, at L. 500, chap. 1323), was continued, as to convey- ances by full-blooded Indian heirs, be- yond the five-year limitation therein ex- pressed, by the Act of April 26, 1906 (34 Stat, at L. 137, chap. 1876), which, in § 22, after empowering adult heirs of a de- ceased Indian of either of the five civilized tribes to convey their inherited lands, provided that "all conveyances made un- der this provision by heirs who are full- blooded Indians are to be subject to_ the approval of the secretary of the interior," and in § 29 repealed all inconsistent leg- islation. Tiger V. Western Invest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. The rights of the Creek Indians in the Indian territory who were made citizens of the United States by the Act of March 3, 1901 (31 Stat, at L. 1447, chap. 868), with all of the rights, privileges, and im- munities of such citizens, were not un- constitutionally impaired by the Act of April 26. 1906, § 22, extending the pro- hibition against the alienation of allotted lands by the allottee or his heirs without the approval of the secretary of the in- terior, created by the supplemental Creek agreement of June 30, 1902, beyond the five-year limitation therein expressed. Tiger v. Western Invest. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. 936-32a. Extent of restriction. — Starr v. Campbell, 208 U. S. 527, 52 L. Ed. 602, 28 S. Ct. 365. 647 938-939 INDIANS. Vol. VI. allotted lands by members of the Cherokee or Choctaw Nations, upon the ground that they were in violation of existing restrictions upon the power of alienation.^ ^a Right of United States to Sue. — The United States must be deemed to have the right to invoke the equity jurisdiction of its courts to cancel conveyances of allotted lands made by Choctaw Indians, upon the ground that they were in vio- lation of existing restrictions upon the power of alienation, in view of the pecu- liar relationship of the United States to the Indians, and of the explicit recogni- tion by congress in the Act of May 27, 1908 (35 Stat, at L. 312, chap. 199), of the right of the government to enforce these restrictions by suit, and of the ap- propriation made in that and later acts for the maintenance of such suits.* ^b f. Land Subject to Allotment. — Pine lands were subject to allotment among the Indians residing upon the White Earth Reservation.'*'*'' g. Designation of Homestead. — The requirement of paragraph 12 of the sup- plemental agreement of July 1, 1902 (32 Stat, at L. 641, chap. 1362), with the Choctaws and Chickasaws, that each Indian allottee shall designate a portion of his allotment as a homestead, does not extend to cases where a person, whose name appeared upon the rolls, died after the ratification of the agreement, and before receiving his allotment, in which cases the act especially provides in para- graph 22 for allotment in the name of the deceased person, and for the descent of the land to his heirs.*'*" h. Taxation of Allotment. — A tax exemption, and not merely an additional guard against alienation, which would fall when the restrictions on alienation were removed, was made by the Act of June 28, 1898, under which the lands allotted in severalty under that act to the members of the Choctaw and Chicka- saw tribes were subjected to various restrictions on alienation, and were to be nontaxable while the title remained in the original allottees.**^ Such right of exemption was a vested right protected by the United States constitution.**"* 938-42a. Parties. — Mullen v. United States, 224 U. S. 448, 56 L. Ed. 834, 32 S. Ct. 494; Heckman v. United States, 224 U. S. 413, 56 L. Ed. 820, 32 S. Ct. 424. See, also. post. PARTIES. 938-42b. Right of United States to sue. —Mullen V. United States, 224 U. S. 448, 56 L. Ed. 834, 32 S. Ct. 494; Heckman v. United States, 224 U. S. 413, 56 L. Ed. 820, 32 S. Ct. 424. 939-44a. Pine lands. — Nothing contained in the General Allotment Act of February 8, 1887 (24 Stat, at L. 388, chap. 119), nor the Amendatory Act of February 28, 1891 (26 Stat, at L. 794, chap. 383), which would forbid the allotment of pine lands, was imported into the Steenerson Act of April 28, 1904 (33 Stat, at L. 539, chap. 1786), providing for allotments to the Chippewa Indians residing upon the White Earth Reservation by the provision of that act that "the allotment shall be, and the pat- ent issued therefor, in the manner and having the same effect as provided in the General Allotment Act." the later act be- ing very direct as to quantity, and con- taining no qualifications as to the char- acter of the land to be allotted. Fairbanks V. United States, 223 U. S. 215, 56 L. Ed. 409, 32 S. Ct. 292. 939-44b. Designation of homestead. — Mullen V. United States, 224 U. S. 448, 56 L. Ed. 834, 32 S. Ct. 494. 939-44C. Exemption from taxation.— Choate v. Trapp, 224 U. S. 665, 56 L. Ed. 941, 32 S. Ct. 565. See, generally, post, TAXATION. 939-44d. Exemption — A vested right. — Choctaw and Chickasaw allottees under the Atoka agreement embodied in the Act of June 28, 1898, under which, in part consideration of their relinquishment of all claim to the tribal property, they were to receive allotincnts of the lands in severalt3^ which were to be nontaxable for a specified period while the j;itle re- mained in the original allottees, acquired vested rights of exemption from state taxation, protected by the U. S. Const., 5th Amend., from abrogation during that period, as was attempted by the Act of May 27, 1908 (35 Stat, at L. 312, chap. 199), removing the restrictions upon alienation, and providing that lands from which such restrictions had been removed should be subject to taxation. Choate v. Trapp, 224 U. S. 665, 56 L. Ed. 941, 32 S. Ct. 565. A Creek homestead allottee under an agreement incorporated in congressional legislation by which, in part consideration of the relinquishment by the Indians of their claim to the tribal property, they were to receive homestead allotments which should be nontaxable and inalien- able for a specified period, acquired a 648 Vol. VI. INDIANS. 939-952 Any doubt as to whether the tax exemption was a personal privilege, and re- pealable, or an incident attached to the land itself for a limited period, must be resolved in favor of the patentees.^-**" IV. Government of Indians and Indian Country. A. Power of United States— 1. In General.— An intention to repeal the existing federal laws and regulations respecting the Indians can not be gathered from the proviso in an enabling act reserving to the government of the United States the authority to make laws and regulations in the future respect- ing such Indians.^*^'^ V. Jurisdiction over Indians and Indian Country. A. Criminal Jurisdiction— 1. Crimes by Indians — a. Crimes on Indian Reservation— {\) Indian Reservation zcithin State— (h) United States Courts— bb. Crimes against Other Indians. — See note 90. 2. _ Crimes by Persons Other than Indians— b. On Indian Reservation within Territory. — See note 12. VI. Taxation. A. Indian Property. — As to exemption of allotment from taxation, its na- ture as a vested right, etc.. see ante, "Taxation of Allotment," III, B, 2, h. XI. Annuities and Appropriations. Apportionment between Bands. — Where the evidence does not show how vested right to exemption from state taxa- tion, protected by the federal constitu- tion against abrogation by congress dur- ing that period. English z: Richardson, 224 U. S. 680, 56 L. Ed. 949, 32 S. Ct. 571. 939-44e. Doubt resolved in favor of patentees. — Choate v. Trapp, 224 U. S. 665. 56 L- Ed. 941, :',2 S. Ct. 565. 943-66a. Intention repeal existing fed- eral laws.— Ex parte Webb, 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769. 948-90. Effect of Act of 1885.— Crimes committed by one Indian upon the person of another within the limits of the Tulalip Reservation, in the state of Washington, are not excepted from the exclusive juris- diction of the federal courts, under Act March 3, 1885, c. 341, § 9, 23 Stat. 385, be- cause both parties hold patents from the United States, issued under the authority of the treatj^ with the Omahas of March 16, 1854 (10 Stat. 1043), and the treaty of Point Elliott of January 22, 1855 (12 Stat. 927), and are therefore, by virtue of Act Feb. 8, 1887, c. 119, § 6, 24 Stat. 388, citizens of the United States. United States V. Celestine, 215 U. S. 278, 54 L. Ed. 195, 30 S. Ct. 93. Land within the Tulalip Indian Reser- vation, in the state of Washingtoir, al- lotted and patented in severalty, pursuant to the treaty with the Omahas of March 16, 1854, 10 Stat. 1043, and the treaty of Point Elliott of January 22, 1855. 12 Stat. 927, which provide for a conditional aliena- tion only, is not, by reason of such allot- ment and patent, excepted from the reser- vation, so as to defeat the exclusive ju- risdiction of the federal courts under Act :\Iarch 3, 1885, c. 341, § 9, 23 Stat. 385, of crimes committed on such land by one Indian upon the person of another. United States v. Celestine, 215 U. S. 278, 54 L. Ed. 195, 30 S. Ct. 93. 952-12. Crimes by person other than In- dians on Indian reservation within terri- tory. — The murder of one negro by an- other within the limits of an Indian reser- vation in a territory is committed within a place or district under the exclusive ju- risdiction of the United States, within the meaning of Rev. St., § 5339 (U. S. Comp. St. 1901, p. 3627), defining and punishing the crime of murder, as amended by Act January 15, 1897, c. 29, 29 Stat. 487 (U. S. Comp. St. 1901, p. 3620). and extended by § 2145 to the Indian country, when not within the exceptions made by § 2146, which, by reason of the race of the ac- cused and deceased, do not apply. Pickett z: United States, 216 U. S. 456, 54 L. Ed. 566. 30 S. Ct. 265. The murder of one negro by another within the limits of the Osage Indian teservation subsequent to the Oklahoma enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267), but prior to the admission of that state into the Union, is justiciable, after such admission, in the district court of the United States for the Western Dis- trict of Oklahoma, under § 14 of that act (34 Stat. 275 [U. S. Comp. St. Supp. 1909, p. 155]), providing for the transfer of ju- risdiction in respect of all crimes against 649 960 INDIANS. Vol. VI. much of a gross sum went to each band of Indians, one-half of the gross amount should be charged to each."^^'' Sioux Annuities Restored. — When the Sioux annuities were restored the court of claims was authorized to ascertain the amount due after setting off all amounts properly chargeable against such annuities, for which see footnote.^^'' Indians Entitled to Participate. — Where individual Indians voluntarily and without the consent of the United States withdrew from the reservation which had been provided for the tribe, they ceased to be a legal entity or part of the entity and became simply individual Indians, and must return to their reserva- tion in order to participate in an annuity.^^*^ Sac and Fox Annuities. — A band of the Sac and Fox Indians left their reservation in Kansas and returned to their former home in Iowa. Their rights, as a part of the Sac and Fox tribes of Indians, and as individuals in the annuities granted to and provided for by acts of congress, have been before the federal courts and ascertained according to the construction placed upon such acts.^^"* the United States to the federal courts therein provided. Pickett v. United States, 216 U. S. 456, 54 L. Ed. 566, 30 S. Ct. 265. 960-51a. Apportionment. — United States V. Sisseton and Wahpeton Bands of Sioux Indians, 208 U. S. 561, 52 L. Ed. 621, 28 S. Ct. 352, affirming 42 Ct. CI. 416. 960-51b. Authority of court of claims- Amount of annuities restored. — After the Sioux outbreak in 1862, congress declared forfeited the annuities assured to the In- dians by the treaty of 1851, and appro- priated the same for the relief of white sufferers. Subsequently the annuities were restored and this court was au- thorized to ascertain the amount due after setting off all amounts properly charge- able against such annuities. Held, that the money of the Indians expended for the relief of the white sufferers under Act Feb. 16, 1863, c. 37, 12 Stat. 652, is a proper charge against the unpaid annuities; moneys appropriated since 1863 for the support of these Indians, being in the stead of the annuities, should be deemed charged against the fund; money ex- pended in removing the Indians to new homes is not a proper charge against the unpaid annuities; moneys paid under a treaty "in consideration of the destitution of said bands," "resulting from the con- fiscation of their annuities and improve- ments" are a proper charge; money paid to the Indians which was in legal effect the proceeds derived from a sale of their lands is not properly chargeable. (1907), Sisseton and Wahpeton Bands of Indians V. United States. 42 Ct. CI. 416, judgment affirmed in United States v. Sisseton and Wahpeton Bands of Sioux Indians. 208 U. S. 561, 52 L. Ed. 621, 28 S. Ct. 352. Payments made by the United States on account of depredations by the Sisse- ton and Wahpeton Bands of Sioux In- dians, sums paid to their chiefs for re- moval and subsistence, and for manual labor schools under the treaty of July 23, 1851 (10 Stat. 949), and expenditures for their support made because of the desti- tution produced by the forfeiture of their annuities, which was declared by Act Feb. 16, 1863, c. 37, 12 Stat. 652, are prop- erly set off against their annuities by the court of claims, in the exercise of its ju- risdiction under Act June 21, 1906, c. 3504, 34 Stat. 372, to adjudicate and award the balance, if any. due such Indians, for an- nuities under the treaty, as if the act of forfeiture had not been passed, and to as- certain and set off all payments or other provisions made to or for such bands or any members thereof since the act of forfeiture "which are properly chargeable against unpaid annuities." Judgment (1907), 42 Ct. CI. 416, affirmed. United States V. Sisseton and Wahpeton Bands of Sioux Indians, 208 U. S. 561, 52 L. Ed. 621, 28 S. Ct. 352. 960-51C. Indians entitled to participate. — Sac and Fox Indians v. Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473, affirming 45 Ct. CI. 287. 960-51d. Sac and Fox annuities — Indi- vidual rights. — The band of Sacs and Foxes who had left their reservation in Kansas and returned to their former horne in Iowa possessed no individual rights in the annuities apportioned to them from treaty appropriations, under the Act of July 4, 1884 (23 Stat, at L. 76, chap. 180), which confined its benefits to the "Sacs and Foxes now in Iowa, to be ascertained by the secretary of the interior." Sac and Fox Indians v. Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 522, 31 S. Ct. 473. Individual rights were not created by the provision of the Indian Appropriation Act of March 2, 1867 (14 Stat, at L. 492, chap. 173), that, as permitted by the treaty of October 1, 1859 (15 Stat, at L. 467), art. 6, the band of Sacs and Foxes "now in Tama county, Iowa, shall be paid pro rata according to their numbers, of ihe annuities, so long as they are peace- ful and have the assent of the government of Iowa to reside in that state." Sac and 650 Vol. VI. INDIANS. 960 Appropriations to Indians — Sectarian School Appropriations. — The pol- icy of the government in regard to appropriations for the use of sectarian schools has reference only to gratuities of public money.-^^'' Fox Indians v. Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. Ratification of proportionate division. — The payments theretofore made to the bands of Sacs and Foxes who had left their reservation in Kansas and returned to their former home in Iowa, as their proportion of the annuities promised to their tribes, were ratified as to the amount by the Act of May 17, 1882 (22 Stat, at L. 78, chap. 163), providing that there- after they should have apportioned to them from appropriations for fulfilling treaty stipulations no greater sum thereof than that theretofore set apart for them. Sac and Fox Indians v. Sac and Fox In- dians, 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. Effect of subsequent change in propor- tionate division. — The direction to the secretarv of the interior in the Act of May 31,' 1900 (31 Stat, at L. 221. chap. 598), thereafter to pay a named head chief of the band of Sacs and Foxes, who liad left their reservation in Kansas and returned to their former home in Iowa, an annuity, in accordance with the terms of the treaty of October 11, 1842, art. 4. is not enough to establish that he had b)een guilty of mistake in not making the sam.e payment in previous years. Sac and Fox Indians v. Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 552. 31 S. Ct. 473. Right of chiefs under Act of October 11, 1842. — The chiefs of the band of Sacs and Foxes who left their reservation in Kansas and returned to their former homes in Iowa could claim no right to the sum which, under the treaty of Oc- tober 11, 1842 (7 Slat, at L. 596), each of the principal chiefs should receive annu- ally "out of the annuities payable to the tribe" — especially where the parties to the treaty have treated the chiefs on the res- ervation as the only ones to be paid. Sac and Fox Indians v. Sac and Fox Indians, :220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. The condition attached to the provi- sions of the treaty of October 1, 1859, art. 7, inviting nonresident members of the Sac and Fox tribes to come in, and pro- viding for notice to them, that those who do not rejoin and permanently reunite with the tribe within one year shall have none of the benefits of any of the treaty stipulations, is an absolute condition pre- cedent to the acquisition by persons not parties to the treaty of any rights, whether given notice or not. Sac and Fox Indians V. Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. Indians absent from their reservation without permission from the United States had no individual rights to the annuities promised to their tribes by treaty, and paid at the tribal agency conformably to the Act of August 30, 1852 (10 Stat, at L. 41, chap. 103, U. S. Rev. Stat., § 2086), § 3, which forbade payment to be made to any attorney or agent, and required it to be tnade directly to the Indians themselves or to the tribe per capita, "unless the im- perative interest of the Indian or Indians or some treaty stipulation shall require the payment to be made otherwise, under the direction of the president." Sac and Fox Indians v. Sac and Fox Indians, 220 U. S. 481, 55 L. Ed. 552, 31 S. Ct. 473. 960-51e. Appropriation to Indians — Sectarian school appropriation. — The dec- laration of policy that the government shall make "no appropriation whatever for education in any sectarian school," contained in the various Indian appropri- ation acts, iias reference only to gratui- tous appropriations of public moneys, and has no application to appropriations made to fulfill obligations under the Sioux Treaty of April 29, 1868 (15 Stat. 635, 637), or to expenditures of the income of the trust fund set apart by Act March 2, 1889, c. 405, § 17, 25 Stat. 888, 894, 895, for the use of the Sioux Nation, in part consider- ation of cessions of lands to the United States. Quick Bear v. Leupp, 210 U. S. 50, 52 L. Ed. 954, 28 S. Ct. 690. 651 INDICTMENTS, ETC. Vol. VL INDICTMENTS, INFORMATIONS, PRESENTMENTS AND COMPLAINTS II. Necessity for Presentment or Indictment, 653. A. In General, 653. III. Finding of Indictment, 653. B^. Constitution of Grand Jury, 653. C. Concurrence of Grand Jurors, 653. D^. Hearing Evidence, 653. VII. Form and Requisites, 653. A. Statutory Provision, 653. VIII. Requisites and Sufficiency of Charge, 653. C. Designation of the OiTense, 653. 4. Under Statute, 653. 6. General Rules of Sufficiency, 653. a. To Show Nature and Cause of Accusation, 653. (1) In General, 653. 7. Averment of I^articular Matters, 653. 1. Intent or Knowledge, 653. (1) Intent, 653. (a) Necessity for Averment, 653. o. Statutory Offenses, 654. (2) In Words of Statute, 654. (a) The General Rule, 654. D. Designation of Persons, 654. ■ 1. Of Accused, 654. c. Descriptions and Additions. 654. F. Designation of Place, 654. 2. Sufficiency of Averment. 654. a. In General. 654. b. Within Jurisdiction of Court, 654. XIII. Validity of Accusation, 654. A. Presumption of Validity, 654. B. Validity of Part of Counts, 654. XIV. Construction of Accusation, 655. XV. Objections to Accusation, 655. C. Manner of Making Objection, 655. 1. Motion to Quash, 655. b. Grounds for, 655. 5. Writ of Error, 655. F. Waiver and Cure of Objections, 655. 1. Waiver of Objections, 655. CROSS REFERENCES. See the title Indictments, Informations. Presentments and Complaints^ vol. 6, p. 961, and references there given. In addition, see ante, 'Appeal and Error, p. 34; Banks and Banking, p„ 184; Extradition, p. 571; Grand Jury, p. 609; Habeas Corpus, p. 612. As to sufficiency for extradition, see ante. Extradition, p. 571. 652 Vol. VI. INDICTMENTS, ETC. 968-981 II. Necessity for Presentment or Indictment. A. In General. — See note 34. III. Finding of Indictment. B|. Constitution of Grand Jury. — If an order for a grand jury- is made by the proper authority, its source, whether the court or one of its judges, is of no concern to one afterwards indicted by the jury, but if the drawing is by unau- thorized persons, or from persons not properly selected or ciualified, the in- dictment may be quashed.-"' ^"^ C. Concurrence of Grand Jurors. — No formal vote of grand jurors is es- sential to an indictment, and if one is taken it need not be recorded, an intel- ligent assent of the jurors being sufficient."^^"' D|. Hearing Evidence. — An indictment need not be quashed because the grand jury considered testimony of admissions by the prisoner which were obtained under circumstances that made them incompetent.-'-'' VII. Form and Requisites. A. Statutory Provision.— See note 49. VIII. Requisites and Sufficiency of Charge. C. Designation of the Offense — 4. Under Statute. — The requirement of the Philippine Bill of Rights, that the accused be advised of the nature and cause of the accusation against him, is satisfied where such complaint, however open it may be to criticism on demurrer, supposing the strict rules of the old com- mon law to be applied, leaves no doubt in the mind of a person of rudimentary intelligence that it means to charge the accused with the falsification of docu- ments, contrary to the Philippine Penal Code.^*'^ 6. General Rules of Sufficiency — a. To Shozv Nature ajid Cause of Accusation — (1) In General — See note 46. 7. Averment of Particular Matters — 1. Intent or Knowledge — (1) Intent — (a) Necessity for Averment. — An indictment for murder which 968-34. Necessity for.— See ante, CON- raiso v. United States, 207 U. S. 368, 52 STITUTIOXAL LAW, p. 264. L. Ed. 249, 28 S. Ct. 127. 969-39a. Constitution of grand jury. — 981-46. To show nature and cause of ac- Ex parte Harlan (C. C), 180 F. 119, de- cusation.— See post, PERJURY, crees affirmed Harlan v. McGourin, 218 The accused is entitled to know the na- U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. tare and cause of the accusation against See ante, GRAXD JURY, p. 600. him, and a charge must be sufficiently 969-40a. Concurrence of grand jurors. definite to enable him to make his defense — Harlan z: McGourin, 218 U. S. 442, 54 and avail himself of the record of con- L. Ed. 1101, 31 S. Ct. 44. viction or acquittal for his protection 969-42a. Hearing evidence. — Holt z\ against further prosecutions and to in- United States, 218 U. S. 245, 54 L. Ed. form the court of the facts charged, so 1021, 31 S. Ct. 2, affirming judgment that it may decide as to their sufficiency United States v. Holt (C. C), 168 F. 141. in law to support a conviction, if one be 970-49. Statutory provision. — "Section had, and the elements of the offense must 1025. Rev. Stat., of the United States pro- be set forth in the indictment with rea- vides that no judgment upon an indict- sonable particularity of time, place and ment shall be affected by reason of any circumstances. Armour Packing Co. r. defect or imperfection in matter of form United States, 209 U. S. 56, 83, 52 L. Ed. which shall not tend to the prejudice of 681. 28 S. Ct. 428. the defendant, and, unless the substantial An indictment which specifically states rights of the accused were prejudiced by the elements of the oflfense with suffi- the refusal to require a more specific state- cient particularity to fully advise the de- ment of the manner in which the oflfense fendant of the crime charged and to ena- was committed, there can be no reversal." ble a conviction, if had, to be pleaded in New York, etc., R. Co. v. United States, bar of any subsequent prosecution foi 212 U S. 481, 497, 53 L. Ed. 613, 29 S. Ct. the same oflfense, is sufficient. New 304 York, etc., R. Co. z: United States. 212 975-90a. Designation of offense.— Pa- U. S. 481. 497, 53 L. Ed. 613, 29 S. Ct. 304. 633 986-1004 INDICTMENTS, ETC. Vol. VL charges that the acts constituting the assault were made feloniously and with malice aforethought need not contain such allegations in the preliminary aver- ment of assault.^^^ o. Statutory Offenses — (2) In Words of Statute — (a) The General Rule. — See note 4. It is not always sufficient to charge statutory offenses in the lan- guage of the statutes, and where the oft'ense includes generic terms it is not sufficient that the indictment charge the offense in the same generic terms, but it must state the particulars.-*^ But an indictment which distinctly and clearly charges each and every element of the off'ense intended to be charged, and distinctly advises the defendant of what he is to meet at the trial, is sufficient.'*'' D. Designation of Persons — 1. Op Accused — c. Descriptions and Addi- tions. — The description of the accused in a criminal complaint charging falsi- fication of a public document, as "disbursing officer of the bureau of coast guard and transportation of the United States government of the Philippine Islands," is sufficient as against demurrer, although technically there may be no such body politic as "the United States government of the Philippine Is- lands," especially in view of the provisions of the Philippine Islands criminal code of procedure, which require a public offense to be described in ordinary and concise language, so as to enable a person of common understanding to know what is intended, and the court to pronounce judgment according to the right, and declare that defects in matter of form are not material where they do not tend to prejudice substantial rights.-*^^ F. Designation of Place — 2. Sufficiency of Averment — a. In General. — See note 59. b. Within Jurisdiction of Court. — See note 60. XIII. Validity of Accusation. A. Presumption of Validity. — A grand jury is presumed to have acted on legal evidence in returning an indictment, until accused meets his burden to show the contrary.2oa As to presumption of validity of indictment found by disqualified grand jurors, see ante. Grand Jury, p. 609. B. Validity of Part of Counts. — See note 21. 986-80a. Necessity for averment. — Holt der the exclusive jurisdiction of the V. United States, 218 U. S. 245, 54 L. Ed. United States at the time of the murder. 1021, 31 S. Ct. 2, affirming judgment Holt v. United States, 218 U. S. 245, 54 United States v. Holt (C. C), 168 Fed. L. Ed. 1021, 31 S. Ct. 2, affirming judg- 141. ment United States v. Holt (C. C. 1909) 989-4. Under Philippine Code.— Weems 168 F. 141. V. United States, 217 U. S. 349, 54 L. Ed. 1004-20a. Presumption of validity. — Ex 793, 30 S. Ct. 544. parte Harlan (C. C), 180 Fed. 119, de- 989-4a. Armour Packmg Co. v. United crees affirmed Harlan v. McGourin, 218 States, 209 U. S. 56, 83, 52 L. Ed. 681, 28 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. S. Ct. 428. 1004-21. Validity of part counts. — "As 989-4b. Armour Packing Co. v. United to the assignment of error that there were States, 209 U. S. 56, 84, 52 L. Ed. 681, certain defective counts in the indictment, 28 S. Ct. 428. _ ^ J J . • the conviction was a general one, antl, 995-45a. Descriptions and additions. — even if the counts were defective, as al- Weems v. United States, 217 U. S. 349, leged, one good count, sufficient to sus- 54 L. Ed. 793, 30 S. Ct. 544. tain the sentence, is all that is required 997-59. Sufficiency of averment.— See to warrant the affirmation of a judgment ante, CONSPIRACY, p. 256. in error proceedings. Dunbar v. United 997-60. Within jurisdiction of court.— States, 156 U. S. 185, 39 L. Ed 390; Pow- An allegation in an indictment for mur- ers v. United States, 223 U. S. 303, 312, der that the crime was committed "within 56 L. Ed. 448, 32 S. Ct. 281. the Fort Worden Military Reservation, a As to validity to support a transfer of place under the exclusive jurisdiction of the accused from one federal district to the United States," charges with sufficient another, see ante, CRIMINAL LAW, p. clearness that such reservation was un- 434. 654 Vol. VI. INFANTS. 1005-1017 XIV. Construction of Accusation, An indictment is to be construed favorable to the defendant. -^^ XV. Objections to Accusation. C. Manner of Making Objection— 1. Motion to Quash— b. Grounds for. —See ante, "Constitution of Grand Jury," III, B^ ; '"^earing Evidence," III, 5. Writ of Error. — See ante. Appeal and Error, p. 34. F. Waiver and Cure of Objections— 1. Waiver of Objections.— See note 55. INDIRECT TAX.— See note 1. INDORSEMENTS.— See ante, Bills, Notes and Checks, p. 204. INDORSER. — See ante. Bills, Notes and Checks, p. 204; post, Pledge and Collateral Security. INFANTS. III. Property of Infant, 655. B. Equity Jurisdiction, 655. C. Sale of Infant's Property, 656. 2. Effect of Irregularity in Proceedings, 656. IV. Suits by and against Infants, 656. B. Guardian Ad Litem or Next Friend, 656. 4. Duties, 656. CROSS REFERENCES. See the title Infants, vol. 6, p. 1012, and references there given. III. Property of Infant. B. Equity Jurisdiction. — The inherent power of a court of equity over the persons and estates of infants is very wide.-^'^ 1005-26a. Construction of accusation. business in the designated capacity, and — Williamson v. United States, 207 U. S. this made the occasion for the tax, meas- 425, 52 L. Ed. 278, 28 S. Ct. 163. See ured by the standard prescribed. The .ante, CONSPIRACY, p. 256. difference between the acts is not merely 1008-55. Waiver of objections. — Ac- nominal, but rests upon substantial dif- cused waived an objection to the indict- ferences between the mere ownership of ment on the ground that the grand ju- property and the actual doing of business rors did not assent to it, by going to trial in a certain way." Flint v. Stone Tracy without raising the objection. (C. C. Co., 220 U. S. 107, 150, 55 L. Ed. 389, 31 1909) Ex parte Harlan, 180 F. 119, de- S. Ct. 342. See post, REVENUE LAWS; crees affirmed Harlan v. McGourin, 218 TAXATION. See, also, ante, DUTIES, U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44. p. 533. 1011-1. Indirect taxation. — "Within the 1017-28a. Equity jurisdiction. — United category of indirect taxation, as we shall States v. Morse, 218 U. S. 493, 505, 54 have further occasion to show, is em- L. Ed. 1123, 31 S. Ct. 37. braced a tax upon business done in a cor- "For the purpose of maintenance, the porate capacity, which is the subject mat- power over real estate is undoubtedly ter of the tax imposed in the act under more comprehensive than it is over the consideration. The Pollock Case con- sale of real estate for purposes of rein- strued the tax there levied as direct, be- vestment, though manifestly for the cause it was imposed upon propertj' interest of the minor. The weight of au- simply because of its ownership. In the thority seems to be that it does not ex- present case the tax is not payable un- tend to sales merely because it shall ap- less there be a carrying on or doing of pear to be for the interest of the infant 655 1017-1019 I X IT I AT IV E AND REFERENDUM. Vol. VI. C. Sale of Infant's Property — 2. Effect of Irregularity in Proceedings. — Irregularity as Subjecting Decree to Collateral Attack. — Where a court has jurisdiction to sell the property of minors, mere irregularities do not subject the decree to collateral attack.^^^ IV. Suits by and against Infants. B. Guardian Ad Litem or Next Friend — 4. Duties. — See note 40. INFERIOR COURTS.— See ante, Courts, p. 398. INFORMATIONS. — See ante, Indictments, Informations, Presentments AND Complaints, p. 652; post, Intoxicating Liquors. INFORMERS. — See the title Informers, vol. 6, p. 1020, and references there given. INFRINGEMENT.— See ante. Copyright, p. 2)77 ; post, Patents; Trade- marks, TrADENAAIES AND UnFAIR COMPETITION. INHABITANT.— See ante, Citizenship, p. 235. INHERITANCE TAX.— See post, Succession Taxes. INITIALS. — See ante, Exceptions, Bill of, and Statement of Facts on Appeal, p. 559. INITIATIVE AND REFERENDUM.— See ante, Constitutional Law, p. 264. (Bispham's Equity, § 549; Story's Eq- power as a court of equity, or its statu- uity, § 1357; 3 Pomeroy Equity, §§ 1304, tory authority. United States v. Morse, 1309), though there is not lacking very 218 U. S. 493, 54 L. Ed. 1123, 31 S. Ct. respectable authority for the power to 37. See, also, post, JUDGMENTS AND sell real estate when shown to be for DECREES. the manifest interest of the minor. 2 1019-40. May select tribunal in which to Kent's Comm., 11th ed. 230; 5 Johns. Ch. bring suit. — -"That a next friend may se- 167; 4 Heisk. (Tenn.) 370, and 7 Baxt. lect the tribunal in which the suit shall (Tenn.) 502." United States v. Morse, 218 be brought is clear. While he may do U. S. 493, 505, 54 L. Ed. 1123, 31 S. Ct. 37. nothing prejudicial to the substantial 1017-30a. Decree not subject to coUat- rights of the minor, yet the mere selection eral attack. — A decree of the supreme of one out of many tribunals having juMs- court of the District of Columbia for the diction can not be considered as an act sale of an infant's real property for pur- to the latter's prejudice. Certainly the poses of reinvestment, made with juris- election to accept the jurisdiction of a diction of the res and of the parties, is court of the United States is not an act not open to collateral attack, even though prejudicial to substantial rights." In re the court erred in holding that a case had Moore, 209 U. S. 490, 52 L. Ed. 904, 28 S. been made, either under its inherent Ct. 585, 706. 6.56 Vol. VI. INJUNCTIONS. INJUNCTIONS. IV. Jurisdiction, 658. C. Over Particular Parties and Subject Matters, 658. 3. Public Officers, 658. a. Injunction against, 658. (1) Officers of United States, 658. (2) Officers of States, 659. 4. Legislative Bodies, 659. 5. Proceedings in Federal and State Courts, 659. a. Proceedings in State Courts, 659. 7. Enjoining Prosecution and Punishment of Crime, 659. V. Right to Relief, 660. A. Rules and Principles Governing Issuance, 660. d. Interest of Defendant to Be Considered. 660. 2. As Dependent on Right, Title or Interest of Plaintiff, 660. b. Prior Establishment of Right or Title, 660. (1) In General, 660. 3. Grounds of Equitable Jurisdiction, 660. a. Inadequacv of Other Remedies, 660. (1) In General, 660. (2) What Constitutes Adequate Remedy, 660. c. Nature of Injury Giving Equity Jurisdiction, 660. (1) Reasonable Apprehension of Injury, 660. (2) Irreparable Injury — Not Compensated in Damages, 660. f. Unconstitutionality of Statute, 661. 4. Conduct of Plaintiff as Affecting Right, 663. b. Offer to Do Equity, 663. c. Laches and Negligence, 664. rn In General, 664. B. In Particular Instances, 664. 1. In General, 664. 2. Against Actions at Law and Other Legal Proceedings, 664. a. Actions at Law, 664. 2. Grounds of Jurisdiction, 664. (c) Multiplicity of Suits, 664. VI. Procedure to Obtain, 664. A. Jurisdiction, 664. B. Parties, 664. 3. Parties Defendant. 664. a. Proper and Necessary Parties, 664. D. Pleading, 665. 1. Bill or Complaint — Form and Requisites, 665. a. Allegations as to Grounds of Application, 665. (1) Certainty and Clearness, 665. F. Evidence, 665. 1. Presumptions and Burden of Proof, 665. I. Writ or Order, 665. 3. Temporary Restraining Order and Interlocutory Injunction Dis- tinguished. 665. K. Final Decree, 665. 2. Scope of Restraint, 665. 12 U S Enc— 42 6.-)7 1028 INJUNCTIONS. Vol: VI. a. Dependent on Bill or Complaint, 665. b. Limitation of Decree to Relief Sought, 665. (1) In General, 665. (3) Construction of Decree as to Scope of Restraint, 666. X. Bond, 666. E. Liability on Bond, 666. 5. When Liability Ceases, 666. F. Procedure on Bond, 666. G. Damages, 667. L In General, 667. ' XII. Violation of Injunction, 667. A. In General, 667. L What Constitutes, 667. 2. Power to Publish, 667. C. Defense, Justification or Excuse, 667. L In General, 667. D. Procedure and Punishment, 667. L In General, 667. 3. Punishment — Object of, 668. * 4. Decree, 668. CROSS REFERENCES. See the title Injunctions, vol. 6, p. 1022, and references there given. IV. Jurisdiction. 0. Over Particular Parties and Subject Matter — 3. Public Officers — a. Injunction against — (1) Officers of United States. — Where the officer is pro- ceeding under an unconstitutional act, its invalidity suffices to show that he is without authority, and it is this absence of lawful power and his abuse of authority in imposing or enforcing, in the name of the state, unwarrantable exactions or restrictions, to the irreparable loss of the complainant, which is the basis of the decree.^^*^ The principle has frequently been applied with respect to state offi- cers seeking to enforce unconstitutional enactments.^ ^'^ And it is equally appli- cable to a federal officer acting in excess of his authority or under an authority not validly conferred. ^^° And a similar injury may be inflicted, and there may exist ground for equitable relief, when an officer, insisting that he has the war- rant of the statute, is transcending its bounds, and thus unlawfully assuming to exercise the power of government against the individual owners. He is guilty of an invasion of private property.^^'^ And in case of an injury threatened by his il- 1028-18a. Officers of United States.— v. Western Union Tel. Co., 216 U. S. 146, Philadelphia Co v. Stimson, 223 U. S. 605, 54 L. Ed. 423, 30 S. Ct. 280; Herndon v. 56 L. Ed. 570, 577, 32 S. Ct. 340, citing Chicago, etc., R. Co., 218 U. S. 135, 155, Ex parte Young, 209 U. S. 123, 52 L. Ed. 54 L. Ed. 970, 30 S. Ct. 633; Hopkins v. 714, 28 S. Ct. 441. Clemson Agricultural College, 221 U. S. 1028-18b. Applicable to state officers.— 636, 645, 55 L. Ed. 890, 31 S. Ct. 654. See Philadelphia Co. v. Stimson, 223 U. S. post, "Officers of States," IV, C, 3, a, (2). 605, 56 L. Ed. 570, 32 S. Ct. 340, citing 1028-18C. Equally applicable to federal Osborn v. Bank of United States, 9 Wheat. officers. — Philadelphia Co. v. Stimson, 223 738, 6 L. Ed. 204; Davis v. Gray, 16 Wall. U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340, cit- 203, 21 L. Ed. 447; Pennoyer v. McCon- ing Noble v. Union River, etc., R. Co., naughy, 140 U. S. 1, 10, 35 L. Ed. 363, 11 147 U. S. 165, 172, 37 L. Ed. 123, 13 S. S. Ct. 699; Scott V. Donald, 165 U. S. 107, Ct. 271; American School v. McAnnulty, 112, 41 L. Ed. 648, 17 S. Ct. 262; Smyth 187 U. S. 94, 47 L. Ed. 90, 23 S. Ct. 33. V. Ames, 169 U. S. 466, 43 L. Ed. 819, 18 1028-18d. Transcending authority.— S. Ct. 418; Ex parte Young, 209 U. S. 123, Philadelphia Co. v. Stimson, 223 U. S. 605, 160, 52 L. Ed. 714, 28 S. Ct. 441; Ludwig 56 L. Ed. 570, 32 S. Ct. 340. 658 Vol. VI. INJUNCTIONS. 1028-1031 legal action, the officer can not claim immunity from injunction process. ^^® (2) Officers of States. — See note 19. 4. Legislative Bodies. — See note 23. 5. Proceedings in Federal and State Courts — a. Proceedings in State Courts. — See notes 24, 26. 7. Enjoining Prosecution and Punishment of Crime. — A court of equity has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, is to invade the domain of the courts of common laws, or of the executive and administrative department of the government.^^^ A distinction obtains when it is found to be essential to the protection of the property rights, as to which the jurisdiction of a court of equity has been invoked, that it should restrain the defendant from in- stituting criminal actions involving the same legal questions. This is illustrated in the decisions of the courts in which officers have been enjoined from bringing 1028-18e. Threatened injury. — Phil- adelphia Co. z: Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. 1028-19. Officers of states. — Ludwig v. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. Suits to enjoin prosecuting attorneys from bringing actions, under the author- ity of a state statute which violates the federal constitution, to recover the pen- alties fixed by that statute for violations of its provisions, are not suits against a state, within the meaning of U. S. Const., 11th Amend., securing to the states im- munity from suit. Western Union Tel. Co. V. Andrews, 216 U. S. 165, 54 L. Ed. 430, 30 S. Ct. 286. 1029-23. Legislative bodies. — When a rate is fixed, a bill against the railroad commission to restrain the members from enforcing it will not be bad as an attempt to enjoin legislation or as a suit against a state, and will be the proper form of remedv. Prentis v. Atlantic Coast Line Co., 2l'l U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67, citing Reagan v. Farmers' Loan, etc., Co., 154 U. S. 362, 38 L. Ed. 1014, 14 S. Ct. 1047; Smyth v. Ames, 169 U. S. 466, 43 L. Ed. 819, 18 S. Ct. 418; Chicago, etc., R. Co. V. Tompkins, 176 U. S. 167, 44 L. Ed. 417, 20 S. Ct. 336; Hanley v. Kansas City, etc., R. Co., 187 U. S. 617, 47 L. Ed. 333, 23 S. Ct. 214; McNeill v. Southern R. Co., 202 U. S. 543, 50 L. Ed. 1142; Mississippi R. Comm. v. Illinois Cent. R. Co., 203 U. S. 335, 51 L. Ed. 209, 27 S. Ct. 90; Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. See, also, ante, CONSTITUTIONAL LAW, p. 264; COURTS, p. 398. 1029-24. Proceedings in state courts. — Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441; Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 56 L. Ed. 208, 32 S. Ct. 96. Injunctive relief against railway passen- ger rates as fixed by the Virginia state corporation commission may be granted by a federal court if such rates are con- fiscatory, although, for some purposes, the commission is a court, since proceed- ings to establish rates are legislative, and therefore are not comprehended by the provision of Rev. St. U. S., § 720 (U. S. Comp. St. 1901, p. 581), forbidding federal courts from enjoining proceedings in state courts, which provision looks to the character of the proceedings, not the character of the body. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. A federal circuit court on principles of comity, should not entertain a suit by which injunctive relief is sought against railway passenger rates as fixed by the \'irginia state corporation commission, in advance of the appeal to the highest state court from the order fixing the rates, which is given by the state constitution as of right to any aggrieved party. Prentis z: Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. See ante, CON- STITUTIONAL LAW, p. 264; COURTS, p. 398. The commission appointed under Sess. Laws 1907, p. 480, § 47, and page 835, §§ 1, 3, 5, is not a "court," within Rev. St., § 720 (U. S. Comp. St. 1901, p. 581}, pro- hibiting the granting of injunctions by federal courts to stay proceedings in a state court. Judgment (C. C), Fleisch- mann Co. z: Murray, 161 F. 162; Wilson Distilling Co. z: Same. Id., affirmed. (C. C. A.), Murray v. Wilson Distilling Co., 164 F. 1, decree reversed, Murray v. Wil- son Distilling Co.. 213 U. S. 151, 53 L. Ed. 742, 29 S. Ct. 458. 1029-26. Ancillary jurisdiction. — See ante. COURTS, p. 398. 1031-31a. Enjoining prosecution and punishment of crime. — Philadelphia Co. z: Stimson, 22;i U. S. 605, 56 L. Ed. 570. 32 S. Ct. 340, citing Harkrader v. Wadley, 172 U. S. 148, 170. 43 L. Ed. 399, 19 S. Ct. 119; Fitts V. McGhee, 172 U. S. 516, 531, 43 L. Ed. 535, 19 S. Ct. 269; 2 Storey, Eq. Jur., § 893. 659 1031-1041 INJUNCTIONS. Vol. VI. criminal proceedings to compel obedience to unconstitutional requirements.^!" V. Right to Relief. A. Rules and Principles Governing Issuance — d. Interest of Defendant to Be Considered. — See note 38. 2. As Dependent on Right, Title or Interest of Plaintiff — b. Prior Es- tahlishment of Right or Title — (1) In General. — See note 51. 3. Grounds of Equitable Jurisdiction — a. Inadequacy of Other Remedies — (1) In General. — See note 57. (2) What Constitutes Adequate Remedy. — See notes, 62, 63. c. Nature of Injury Giving Equity Jurisdiction — (1) Reasoruible Apprehen- sion of Injury. — It is not for a court to stop an officer making an assessment from performing his statutory duty for fear he should perform it wrongly. The earli- est moment for equity to interfere is when an assessment has been made."^^ (2) Irreparable Injury — Not Compensated in Damages. — See note 80. 1031-31b. Protection of property rights, —Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340, citing Davis, etc., Mfg. Co. v. Los Angeles, 189 U. S. 207, 47 L. Ed. 782, 23 S. Ct. 498; Dobbins v. Los Angeles, 195 U. S. 223, 241, 49 L. Ed. 169, 25 S. Ct. 18; Ex parte Young, 209 U. S. 123, 162, 52 L. Ed. 714, 28 S. Ct. 441; Western Union Tel. Co. v. Andrews, 216 U. S. 165, 54 L. Ed. 430, 30 S. Ct. 286. One whose property rights have been invaded in fixing harbor lines may main- tain an action to restrain the secretary of war from causing threatened criminal pro- ceedings to be instituted against him in accordance with the provisions of the Acts of Congress of March 3, 1899 (30 Stat, at L. 1121, 1151-1153, chap. 425. U. S. Comp. Stat. 1901, pp. 3541, 3542, 3544), §§ 11, 12, 17, for undertaking the reclama- tion and occupation of land Ijelonging to him beyond the prescribed harbor limits. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. 1032-38. Defendant's interest to be con- sidered. — Injunctive relief will not be granted to the proprietor of a mercantile agency publishing at intervals a copy- righted book giving information as to the business, capital, and credit rating of mer- chants, manufactures, and traders, be- cause of the improper use of such work with respect to a few names by a corpora- tion publishing a similar book limited to those engaged in lumber and kindred trades, where the latter book contains about 60,000 names, 25 per cent more than the former, and the subjects of informa- tion given by it concerning the persons named are six times as many as are given by the other work. Dun v. Lumbermen's Credit Ass'n, 209 U. S. 20, 52 L. Ed. 663, 28 S. Ct. 335. 1034-51. Prior establishment of right or title. — Lawson v. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65. 28 S. Ct. 15. 1035-57. Want of other adequate rem- edy. — Ravmond v. Chicago Union Tract. Co.. 207 U. S. 20, 52 L. Ed. 78. 28 S. Ct. 7; Boise Artesian etc.. Water Co. v. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. 1038-62. What constitutes adequate rem- edy.— See ante, EQUITY, p. 550. 1038-63. Boise Artesian, etc.. Water Co. V. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. Suits to recover illegally collected taxes. — Raymond v. Chicago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7. Injunctive relief against ticket brokers dealing in nontransferable reduced-rate excursion tickets will not be denied on the ground that an adequate remedy at law exists, where such brokers admit past dealings, and avow their purpose to con- tinue the practice, and where the number of such tickets issued is large, the risk to be incurred by the steps necessary to pre- vent their wrongful use is considerable, and numerous suits will be necessitated if redress is sought at law. Judgment, Louis- ville & N. R. Co. V. Bitterman (1906), 144 F. 34, 75 C. C. A. 192, affirmed. Bitterman V. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171. 28 S. Ct. 91. See, generally, ante, CARRIERS, p. 216. 1041-79a. Reasonable apprehension of danger. — First Nat. Bank v. Albright, 208 U. S. 548, 52 L. Ed. 614, 28 S. Ct. 349. Equity will not enjoin a reassessment of a tax on the stock and real property of a national bank because of the appre- hension that U. S. Rev. Stat., § 5219 will be violated by the assessing officer in making the assessment. First Nat. Bank r. Albright, 208 U. S. 548, 52 L. Ed. 614, 28 S. Ct. 349. 1041-80. Irreparable injury — Not com- pensated in damages — Enforcement of statutes, ordinances or other regulations. — A case for injunctive relief is presented where the secretary of state threatens to issue a proclamation in his official capac- ity, under the authorit3^ of a state stat- ute which violates the federal constitu- tion, that a foreign telegraph company is forbidden, under the heavy penalties pre- scribed by that statute, to continue to do 660 Vol. VI. INJUNCTIONS. 1043-1046 Boycotting. — Courts differ as to what constitutes a boycott that may be en- joined. All hold that there must be a conspiracy causing irreparable damage to the business or property of the complainant. ^^^ Some hold that a boycott against the complainant, by a combination of persons not immediately connected with him in business, can be restrained. Others hold that the secondary boycott can be enjoined, where the conspiracy extends not only to in jurying the complainant, but secondarily coerces or attempts to coerce his customers to refrain from deal- ing with him by threats that unless they do, they themselves will be boycotted. Others hold that no boycott can be enjoined unless there are acts by physical vio- lence or intimidation caused by threats of physical violence. ^^'^ Boxing and Cutting Timber. — Equity may intervene by injunction to pre- vent the wrongful boxing and cutting of timber valuable for turpentine purposes, since the remedy at law in damages is of doubtful adequacy. ^-^^^ f. Unconstitutionality of Statute. — No injunction against state officers, to pre- vent the enforcement of a state statute as unconstitutional, should be granted ex- cept in cases reasonably free from doubt. ^^^ it can not be doubted that, in a local business in the state. Decree, Chi- cago, R. I. & P. Ry. Co. V. Ludwig (C. C. 1907), 156 F. 152, affirmed. Ludwig v. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. Negative or restrictive covenants or stipulations in general. — Injunctive relief will not be granted in equity against the disposal of sugar cane elsewhere than at the sugar factory designated in a con- tract with the growers, as a suit for dam- ages will afford adequate relief. Javierre V. Central .Altagracia, 217 U. S. 502, 54 L. Ed. 859, 30 S. Ct. 598. Boycotts and other combinations. — A court of equity may enjoin the continu- ance of a boycott, although spoken words or written matter were used as one of the instrumentalities by which the boycott was made effective. Goinpers v. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492, reversing judgment (1909), 33 App. D. C. 516. 1043-84a. Boycotting. — Gompers r. Bucks Stove, etc., Co., 221 U. S. 418, 5.-> L. Ed. 797, 31 S. Ct. 492. 1043-84b. Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492. Publication of letters, circulars, etc. — "But whatever the requirement of the particular jurisdiction, as to the conditions on which the injunction against a boy- cott may issue, when these facts exist, the strong current of authority is that the publication and use of letters, circulars, and printed matter may constitute a means whereby a boycott is unlawfully contin- ued, and their use for such purpose may amount to a violation of the order of in- junction." Gompers v. Bucks Stove, etc.. Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492, citing Reynolds f. Davis, 198, Mass. 300, 17 L. R. A. (N. S.), 162, 84 N. E. 457; Sherry z\ Perkins, 147 Mass. 212, 9 Am. St. Rep. 689, 17 N. E. 307; Davis v. New England R. Pub. Co. 203 Mass. 470, 25 L. R. A. (N. S.), 1024, 133 Am. St. Rep. 318, 89 N. E. 565; Brown v. Jacobs' Pharmacy Co. 115 Ga. 413, 452, 57 L. R. A. 547, 90 Am. St. Rep. 126, 41 S. E. 553; Gray v. Building Trades' Council, 91 Minn. 183, 63 L. R. A. 753, 103 Am. St. Rep. 477, 97 N. W. 663, 1118, 1 A. & E. Ann. Cas. 172; Lohse Patent Door Co. z\ Fuelle, 215 Mo. 421, 472, 22 L. R. A. (N. S.), 607, 128 Am. St. Rep. 492, 114 S. W. 997; Thomas v. Cincinnati, N. O. & T. P. R. Co., 4 Inters. Com. Rep. 788, 62 Fed. 803, 821; Con- tinental Ins. Co. V. Fire Underwriters, 67 Fed. 312; Beck z'. Railway Teamsters' Protective Union, 118 Mich. 527, 42 L. R. A. 407, 74 Am. St. Rep. 421, 77 N. W. 13; Pratt Food Co. z: Bird, 148 Mich. 632, 118 Am. St. Rep. 601, 112 N. W. 701; Barr v. Essex Trades' Council, 53 N. J. Eq. 102, 30 Atl. 881. See, also, Ludwig z: Western Union Tel. Co., 216 U. S. 146, 156, 54 L. Ed. 423, 30 S. Ct. 280; Bitterman v. Louis- ville, etc., R. Co., 207 U. S. 205, 206, 52 L. Ed. 171, 28 S. Ct. 91; Board v. Christie Grain, etc., Co., 198 U. S. 236. 49 L. Ed. 1031, 25 S. Ct. 637; Scully v. Bird, 209 U. S. 481, 489, 52 L. Ed. 899, 28 S. Ct. 597. 1043-84C. Boxing and cutting timber. — Graves z: Ashburn, 215 U. S. 331, 54 L. Ed. 217, 30 S. Ct. 108. 1046-95a. Enjoining enforcement of un- constitutional law. — "In Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441, the last word of caution by this court was said (p. 166): 'Finally, it is objected that the necessary result of upholding this suit in the circuit court will be to draw to the lower federal courts a great flood of liti- gation of this character, where one federal judge would have it in his power to en- join proceedings by state officials to en- force the legislative acts of the state, either by criminal or civil actions. To this it may be answered, in the first place, that no injunction ought to be granted unless in a case reasonably free from doubt. We think such rule is, and will be, followed 661 1046 INJUNCTIONS. Vol. VI. clear case of confiscation, it is the right and duty of the court to annul a law.^^'' The courts should not enjoin the enforcement of a municipal ordinance on the ground that such ordinance is confiscatory, unless the confiscation is clearly ap- parent.^^" Grounds of Equitable Jurisdiction. — It has been held uniformly that the illegality or unconstitutionality of a state or municipal tax or imposition is not of itself a ground for equitable relief in the courts of the United States. In such a case the aggrieved party is left to his remedy at law, when that remedy is as complete, practicable, and efficient as the remedy in equity. And the rule ap- plies as well where the right asserted is by way of defense.^^"* In order to give equity jurisdiction, there must be shown, in addition to the illegality or uncon- by all the judges of the federal courts.' " Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. "The same thought, in effect, was ex- pressed in San Diego Land, etc., Co. v. National City, 174 U. S. 739, 754, 43 L. Ed. 1154, 19 S. Ct. 804: 'Judicial interference should never occur unless the case pre- sents, clearly and beyond all doubt, such a flagrant attack upon the rights of prop- erty under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.' " Knox- ville V. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. "And in San Diego Land, etc., Co. v. Jasper, 189 U. S- 439, 47 L. Ed. 892, 23 S. Ct. 571, after repeating with approval this language, it was said (p. 441): 'In a case like this we do not feel bound to re-ex- amine and weigh all the evidence, although we have done so, or to proceed accord- ing to our independent opinion as to what were proper rates. It is enough if we can not say that it was impossible for a fair- minded board to come to the result which was reached.' " Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 1046-95b. In clear cases of confiscation. —"The courts, in clear cases, ought not to hesitate to arrest the operation of a confiscatory law, but they ought to re- frain from interfering in cases of any other kind." Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. The case must be a clear one before the courts should be asked to interfere by injunction with state legislation regu- lating gas rates, in advance of any actual experience of the practical result of such rates. Willcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. Thus, in Reagan v. Farmers' Loan, etc., Co., 154 U. S. 362, 38 L. Ed. 1014, 14 S. Ct. 1047, where the property was worth more than its capitalization, and, upon the admitted facts, the rates prescribed would not pay one half the interest on the bonded debt; in Covington, etc., Road Co. V. Sandford, 164 U. S. 578, 41 L. Ed. 560, 17 S. Ct. 198, where the rates pre- scribed would not even pay operating ex- penses: in Smyth v. Ames, 169 U. S. 466, 43 L. Ed. 819, 18 S. Ct. 418, where the rates prescribed left substantially nothing over operating expenses and cost of serv- ice, and in Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441, where, on the aspect of the case which was before the court, it was not disputed that the rates prescribed were in fact confiscatory, in- junctions were severally sustained. Knox- ville V. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. Trial of rate law should be had. — A court of equity ought not to interfere by injunction with state legislation fixing gas rates before a fair trial has been made of continuing the business under such rates where the rates complained of show a very narrow line of division between possible confiscation and proper regula- tion, as based upon the findings as to the value of the property, and the division depends upon variant opinions as to value and upon the results in the future of op- erating under such rates. Willcox v. Con- solidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. The enforcement of a municipal ordi- nance fixing telephone rates should not be enjoined as confiscatory before giving such ordinance a trial to show its actual effect, where the e\idence leaves the prob- able result very close to the dividing line between the yield of a fair return and confiscation. Louisville v. Cumberland Tel., etc., Co., 225 U. S. 430, 56 L. Ed. 1151, 32 S. Ct. 741. 1046-95C. Confiscating municipal ordi- nance.- — -Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 1046-95d. Grounds of equitable juris- diction. — Boise Artesian, etc.. Water Co. V. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426, citing Insurance Co. v. Bai- ley, 13 Wall. 616, 623, 20 L. Ed. 501. See ante, EQUITY, p. 550. 662 Vol. VI. INJUNCTIONS. 1046 stitutionality of the tax or imposition, other circumstances bringing the case un- der some recognized head of equity jurisdiction, before the remedy by injunction can be awarded. ^^^ 4. Conduct of Plaintiff as Affecting Right— b. Offer to Do Equity.^ Taxation— Tender of Amount Justly Due.— As to necessity for tender as a condition precedent to a suit to enjoin the collection of an illegal or excessive tax, in whole or in part, see post. Taxation. 1046-95e. Must come within some rec- ognized head of equity jurisdiction. — The leading case on the subject is Dows v. Chicago, 11 Wall. 108, 20 L. Ed. 65. In that case the plaintiff sought to enjoin the collection of a tax levied upon shares of the capital stock of a national bank on the ground that the levy was unconstitu- tional under the state law, and that the property was not within the jurisdiction of the state. Boise Artesian, etc., Water Co. V. Boise City, 213 U. S. 276, 53 L. Ed. 796. 29 S. Ct. 426. "This case has been frequently followed and its governing principles never doubted. Hannewinkle v. Georgetown, 15 Wall. 547, 21 L. Ed. 231; State Railroad Tax Cases, 92 U. S. 575, 613, 23 L. Ed. 663; Union Pac. R. Co. v. Cheyenne, 113 U. S. 516, 526, 28 L. Ed. 1098, 5 S. Ct. 601; Milwaukee v. Koeffler. 116 U. S. 219, 29 L. Ed. 612, 6 S. Ct. 372; Pittsburgh, etc., Railway v. Board, 172 U. S. 32, 43 L. Ed. 354, 19 S. Ct. 90; Arkansas Bldg., etc., Ass'n V. Madden, 175 U. S. 269, 44 L. Ed. 159, 20 S. Ct. 119." Boise Artesian, etc., Water Co. z: Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. "In Shelton v. Piatt, 139 U. S. 591, 35 L. Ed. 273, 11 S. Ct. 646, a bill was filed in the circuit court of the United States to restrain the collection of a license tax im- posed by the state of Tennessee on the United States Express Company, upon the ground that is was unconstitutional. The writ was refused." Boise Artesian, etc.. Water Co. v. Boise City, 213 U. S. 276. 53 L. Ed. 796, 29 S. Ct. 426. "This case was followed in Allen v. Pullman's Palace Car Co., 139 U. S. 658, 35 L. Ed. 303, 11 S. Ct. 682, and in Pacific Exp. Co. V. Seibert, 142 U. S. 339, 35 L. Ed. 1035, 12 S. Ct. 250, where a tax was alleged to be unconstitutional because imposed upon interstate commerce, be- cause it denied to the taxpayer the equal protection of the laws, and because it was void for repugnancy to the constitution of the state." Boise Artesian, etc.. Water Co. z'. Boise City, 213 U. S. 276, 53 L. Ed. 796. 29 S. Ct. 426. "In Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 43 L. Ed. 341,_the city was about to construct, in violation of its contract, a competing water plant, and the resulting damage to the company would have been irreparable. The same condi- tions existed in Vicksburg Waterworks Co. V. Vicksburg, 185 U. S. 65, 46 L. Ed. 808, 22 S. Ct. 585. See S. C, 202 U. S. 453, 50 L. Ed. 1102, 26 S. Ct. 660." Boise Artesian, etc.. Water Co. v. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. "In Detroit v. Detroit, etc., St. R. Co., 184 U. S. 368, 46 L. Ed. 592, 22 S. Ct. 410, a schedule of rates for transportation of passengers was fixed' in violation of the contract rights of the companj^ and pos- sible suits would be limited only by the number of passengers. The same condi- tion existed in Cleveland v. Cleveland City R. Co., 194 U. S. 517, 48 L. Ed. 1102, 24 S. Ct. 756. And see Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441, where the grounds of the jurisdiction in equity in rate cases are fully set forth and discussed." Boise Artesian, etc., Water Co. V. Boise. City, 213 U. S. 276, 53 L. Ed. 796. 29 S. Ct. 426. "In Ogden City v. Armstrong, 168 U. S. 224, 42 L. Ed. 444, 18 S. Ct. 98, not only was there danger of a multiplicity of suits, but the tax there in question was a lien upon realty and a cloud on the title." Boise Artesian, etc.. Water Co. v. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. Allegations failing to show equity juris- diction. — Circumstances bringing the case within some acknowledged head of equity jurisdiction so as to give the right to injunctive relief in a federal court against the enforcement of a municipal ordinance imposing a license, fee upon a water com- pany, upon the ground that such ordi- nance is unconstitutional, illegal, and void, are not shown by a vague allegation in the bill that the city has threatened to remove the company's pipes and works, without averring any facts showing such threat, or by suggesting the danger of a multiplicity of suits, or of the casting of a cloud upon the title of the company to its franchises, where a single action has been brought to collect the license fee, with an honest purpose to settle the rights of the parties, and the real basis for the contention as to the cloud on title is that the city's claim that the company has no more than a mere permission to occupy the streets, which is the reason said to have induced the enactment of the ordi- nance, unfavorably affects the company's property and impairs its credit. Boise Artesian, etc., Water Co. z'. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. 663 1047-1052 INJUNCTIONS. Vol. VI. c. Laches and Negligence — ( 1 ) In General. — Laches may bar the right to in- junctive process.^''" B. In Particular Instances — 1. In Gene;ral. — See reference given in vol. 6, p. 1048. 2. Against Actions at Law and Other Legal Proceedings — a. Actions at l^aw — (2) Grounds of Jurisdiction — (c) Multiplicity of Suits. — Where the mul- tiplicity of suits to be feared consists in repetitions of suits by the same person against the plaintiff for causes of action arising out of the same facts and legal principles, a court of equity ought not to interfere upon that ground unless it is clearly necessary to protect the plaintiff from continued and vexatious litigation. Something more is required than the beginning of a single action with an honest purpose to settle the rights of the parties. ^••'' VI. Procedure to Obtain. A. Jurisdiction. — See ante, "J^^^'sdiction," IV. See ante. Courts, p. 398; Equity, p. 550; post. Jurisdiction. Nature of Tribunal — Number of Judges. — Congress having declared that the merits of the application for an interlocutory injunction should be consid- ered and determined by a tribunal consisting of three judges, constituted as pro- vided in the act, it results that a tribunal not so constituted does not possess ju- risdiction over the subject matter of the right to such inj unction. ^-^^ B. Parties — 3. Parties Defendant — a. Proper and Necessary Parties. — See note 32. 1047-99a. Laches and negligence. — Cres- will 7'. Grand Lodge Knights of Pythias, 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822. See post, LACHES. Injunction against fraternal order. — The inaction of a fraternal order during the many years in which a newer order, taking the same name, has existed in the state and had exercised its attributes and func- tions, is such laches as defeats the former's right to injunctive relief against the in- fringement of its name and the copying of its insignia and emblems. Creswill r. Grand Lodge Knights of Pythias, 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822. 1049-13a. Multiplicity of suits. — Boise Artesian, etc., Water Co. v. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. Perhaps it might be necessary to await the final decision of one action at law, see, for analogies, Sharon v. Tucker, 144 U. S. 533, 36 L. Ed. 532, 12 S. Ct. 720; Boston, etc., Min. Co. v. Montana Ore Purchasing Co., 188 U. S. 632, 47 L. Ed. 626, 23 S. Ct. 434, but that need not be de- cided. Boise Artesian, etc., Water Co. :'. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. A court of equity ought not to inter- fere upon the ground of multiplicity of suits by the same person against the com- plainant for causes of action arising out of the same facts and legal principles, un- less it is clearly necessary to protect the complainant against continued litigation. Boise Artesian, etc.. Water Co. v. Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. 1051-24a. Nature of tribunal — Number of judges. — Ex parte Metropolitan Water Co., 220 U. S. 539, 55 L. Ed. 575, 31 S. Ct. 600. A temporary restraining order suspend- ing, on constitutional grounds, the enforce- ment of a state statute by restraining the action of a state officer thereunder, can not be vacated, nor can an application for an interlocutory injunction be denied, by a single federal judge, since the enactment of Act June 18, 1910, c. 309, § 17, 36 Stat. 557, which prohibits the granting of such an application except after a hearing be- fore three judges, two of whom must concur in granting it, and provides that, when such an application is made, the judge shall call two other judges to his assistance to hear and determine it, but may grant a te:nporary restraining order, if of the opinion that irreparable injury will otherwise result, to remain in force only until the hearing and determination of the application, and gives an appeal from the order granting or denying an in- terlocutory injunction after notice and hearing. Ex parte Metropolitan Water Co., 220 U. S. 539, 55 L. Ed. 575, 31 S. Ct. 600. 1052-32. Proper and necessary parties. — The duty imposed upon the attorney gen- eral of a state by the common law and statutes, requiring him to cause proceed- ings to be instituted against any corpora- tion whenever it shall have offended against the laws of the state, and to en- force the railroad rate law at the instance of the railroad commission, sufficiently , connects him with the enforcement of 664 Vol. VI. INJUNCTIOXS. 1054-106a D. Pleading — 1. Bill or Complaint — Form and Reouisitls — a. Allega- tions as to Grounds of Application — (1) Certainty and Clearness. — See note 40. F. Evidence — 1. Presumptions and Burden oF' Proof. — An allegation of fact that is material only as an indirect negative of something to be proved by the other party does not shift the burden of proof.'''*^ I. Writ or Order — 3. Temporary Restraining Order and Interlocutory Injunction Distinguished. — A temporary restraining order is distinguished from an interlocutory injunction, in that it is ordinarily granted merely pending the hearing of a motion for a temporary injunction, and its life ceases with the disposition of that motion and without further order of the court; while an in- terlocutory injunction is usually granted until the coming in of the answer or until the linal hearing of the cause, and stands as a binding restraint until re- scinded by the further action of the court.'^^^ K. Final Decree — 2. Scope of Restraint — a. Dependent on Bill or Com- plaint. — As to relief granted under prayer in bill or petition, see ante. Equity, p. 550. b. Limitation of Decree to Relief Sought — (1) In General. — But injunctive relief against ticket brokers unlawfully dealing in nontransferable reduced-rate excursion tickets may extend to the restraining of like dealings as to similar tick- ets which may be issued in the future. ^^'^ the statute to make him a proper party to a suit to enjoin its enforcement. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. 1054-40. Certainty and clearness — Mul- tifariousness. — See post, MULTIFARI- OUSNESS. 1057-64a. Presumptions and burden of proof. — Persons seeking to escape from the obligations of a contract to deliver sugar cane at a specified sugar factory for grinding, because of the happening of a condition subsequent embodied in a pro- viso in the contract, justifying cancella- tion if a projected sugar mill should be erec*^ed or its construction started by a certain date, are charged with the burden of proving that the identical mill referred to in the contract has been so built or started, although the bill alleges affirma- tively a conspiracy to evade the undertak- ing by way of replication to the answer setting up the condition. Javierre v. Cen- tral Altagracia, 217 U. S. 502, 54 L. Ed. 859. .30 S. Ct. 598. 1059-78a. Temporary restraining order and interlocutory injunction distinguished. —Houghton V. Meyer, 208 U. S. 149, 52 L. Ed. 432, 28 S. Ct. 234. 1060-86a. Scope of relief — Injunction against ticket broker. — Bitterman v. Lou- isville, etc.. R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91, affirming 144 Fed. 34, 77 CCA 192 "In Scott f. Donald, 165 U. S. 107, 41 L. Ed. 648, 17 S. Ct. 262, on holding a partic- ular seizure of liquor under the South Carolina dispensary law to be invalid, an injunction was sustained, not only ad- dressed to the seizure in controversy, but which also operated to restrain like sei- zures of liquors in the future, and the ex- ertion of the same character of power liy a court of equity was upheld in the cases of Donovan v. Pennsylvania Co., 199 U. S. 279, 50 L. Ed. 192, 26 S. Ct. 91, and Swift & Co. V. United States, 196 U. S. 375, 49 L. Ed. 518, 25 S. Ct. 276." Bitterman v. Louisville, etc., R. Co., 207 U. S. 205, 5^ L. Ed. 171, 28 S. Ct. 91. "Nor is there merit in the contention that the decision in New York, etc., R. Co. I'. Interstate Commerce Comm., 200 U. S. 361, 404, 50 L. Ed. 515, 26 S. Ct. 272, sup- ports the view here relied upon as to the limited authority of a court of equity to enjoin the continued commission of the same character of acts as those adjudged to be wrongful. On the contrary, the rul- ing in that case directly refutes the claim based on it. There certain acts of tb" carrier were held to have violated the act to regulate commerce. The contention of the government was that, because ^^•r(')n - ful acts of a particular character had been committed, therefore an injunction should be awarded against any and all violations in the future of the act to regulate com- merce. Whilst this broad request was de- nied, it was carefully pointed out that the power existed to enjoin the future com- mission of like acts to those found to be illegal, and the injunction was so awarded." Bitterman -'. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. "The whole argument here made results from a failure to distinguish between an injunction generally restraining the com- mission of illegal acts in the future and one which simply restrains for the future the--, commission of acts identical in char- acter with those which have been the sub- ject of conrtoversy, and which have been adjudged to be "illegal." Bitterman v. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 665 1061-1065 INJUNCTIONS. Vol. VI. (3) Construction of Decree as to Scope of Restraint. — The decree must be read in view of the issues made and the relief sought and granted.^^^ In the footnote will be found a decree which it was held should not be so construed as to prevent the enforcement of legitimate state legislation passed in pursuance of the police power and not conflicting with the federal constitution. ^^'^ X. Bond. E. Liability on Bond. — See note 19. 5. When Liability Ceases.— Liability on an undertaking required as a con- dition of granting the restraining order authorized by Rev. St. U. S., § 718 [U. S. Comp. St. 1901, p. 580], pending decision upon a motion for a temporary in- junction, ceases when a new and permanent injunction is granted without refer- ence to the restraining order, which is by its terms to be in force "until further order, to be made, if at all, after a hearing."--^ F. Procedure on Bond. — Power of Chancery to Assess Damages on Dissolution. — See notes 23, 24. 1061-91a. Constitution of decree as to scope of restraint. — Haskell v. Kansas Natural Gas Co.. 224 U. S. 217, 56 L. Ed. 738, 32 S. Ct. 442. 1061-91b. Not to interfere with state legislation. — A decree of a federal circuit court enjoining the enforcement of cer- tain state legislation which undertook to prohibit the transportation of natural gas outside the state, or any interference with complainants' pipe lines by reason of any other state law or statute, should not be construed as preventing the enforcement of legitimate state legislation passed in the exercise of the police power, and not conflicting with rights protected by the federal constitution, where such a broad construction of the decree would disre- gard the issues made by the pleadings, and the fact that such decree was affirmed in the federal supreme court on the grounds that complainants had the right, in the conduct of interstate commerce, to take natural gas out of the state, that a state could not prohibit the transportation of such product beyond its borders, and that the main purpose and effect of the legislation in question were to prohibit the exercise of lawful rights secured by the federal constitution. Haskell v. Kan- sas Natural Gas Co., 224 U. S. 217, 56 L. Ed. 738, 32 S. Ct. 442. 1064-19. Who protected by. — An un- dertaking accompanjnng a temporary re- straining order directed against "the de- fendants and each of them" inures to the benefit of all the defendants who were in- cluded in that order, although the under- taking is expressed to be one "to make good to the defendants all damages by him suffered," where it was exacted by the court, was offered by the complainant at a time when none of the defendants knew of the pendency of the suit, and shows in its title that there was more than one defendant. Decree (1906) 28 App. D. C. 271, affirmed. Hutchins v. Munn, 209 U. S. 246, 52 L. Ed. 776, 28 S. Ct. 504. The owner of the property is entitled to the benefit of an undertaking exacted by the court as a condition of granting an order temporarily restraining the continu- ance of the erection of an addition to a dwelling, where, although such owner was never served with subpoena or notice, either of the order to show cause or of the restraining order, such order was ob- served until dissolved, and inflicted injury upon her rights. Decree (1906) 28 App. D. C; 271, affirmed. Hutchins v. Munn, 209 U. S. 246, 52 L. Ed. 776, 28 S. Ct. 504. 1064-22a. When liability ceases. — Hough- ton c'. Meyer, 208 U. S. 149, 52 L. Ed. 432, 28 S. Ct. 234. 1065-23. Procedure. — The refusal of the court of original jurisdiction to allow damages for the period during which the temporary restraining order, granted pur- suant to Rev. St. U. S., § 718 [U. S. Comp. St. 1901, p. 580], was in force, upon the undertaking given as a condi- tion of granting such order, can not be sustained as an appropriate exercise of discretion, where, by such order, the postmaster general was restrained from refusing to transmit certain publications at second-class rates, as theretofore, and the result of the litigation was to estab- lish not only the right of the govern- ment to receive additional postage pend- ing the controversy, but also the fact that the publishers had received a very con- siderable service from the government in carrj'ing the publications through the mails at a rate less than that which it was entitled to charge. Decree, Cortelyou v. Houghton (1906), 27 App. D. C. 188, modified. Houghton v. Meyer, 208 U. S. 149, 52 L. Ed. 432, 28 S. Ct. 234. 1065-24. Power of chancery to assess damages on dissolution — Discretion of court. — "We do not think this case comes 666 Vol. VI. INJUNCTIONS. 1065-1067 G. Damages— 1. Ix General.— See note 27. XII. Violation of Injunction. A. In General — 1. What Constitutes. — See ante, Contempt, p. 367. See post, "Power to Punish," XII, A, 2. 2. Power to Punish. — See note 29. Continuing Injunction— Status Pending Appeal.— Plainly, the effect of continuing an injunction operates to continue in the circuit court such jurisdic- tion over the subject matter of the litigation and of the parties as to enable it to preserve the status quo pending the appeal, including power to take cognizance of a violation of its injunction. -^^ C. Defense, Justification or Excuse— 1. In General. — The good faith of the defendant in performing acts violative of an injunction may excuse to some extent, though it can not acquit him of the technical contempt."-'' D. Procedure and Punishment — 1. In General. — Dismissal of Proceed- ing. — A proceeding in equity for civil contempt consisting in doing that which within the class outlined in Russell v. Farley, wherein the order of the trial court ought not to be disturbed upon principles of equity and in view of the superior knowledge of that court of the conduct of the parties in the course of the litigation." Houghton v. Meyer, 208 U. S. 149, 52 L. Ed. 432, 28 S. Ct. 234, 1065-27. Damages — In general. — The value of the use of the dwelling for the period and season during which the owner was deprived of it as the direct result of the wrongful t:se of an order temporarily restraining the continuance of the erec- tion of an addition is the proper measure of damages recoverable upon the under- taking to make good the resulting injury, exacted by the court as a condition of granting the order. Hutchins v. Munn, 209 U. S. 246, 52 L. Ed. 776, 28 S. Ct. 504. 1066-29. Power to punish. — Merrimack, etc., Sav. Bank v. Clay Center, 219 U. S. 527. 55 L. Ed. 320, 31 S. Ct. 295. Power of appellate court. — The willful destruction by mimicipal officers of the poles and wires of a light and power com- pany, pending an appeal to the federal su- preme cotirt from a decree of a circuit court, dismissing a bill praying, among other things, an injunction to prevent such destruction until the right shall be determined, is in and of itself a contempt of the appellate jurisdiction of the su- preme court, although such conduct may also be a violation of the temporary in- junction order continued by the court be- low pending the appeal. Merrimack, etc., Sav. Bank v. Clay Center, 219 U. S. 525, 55 L. Ed. 320, 31 S. Ct. 295. 1066-29a. Continuing injunction. — Mer- rimack, etc., Sav. Bank f. Clay Center, 219 U. S. 527, 55 L. Ed. 320, 31 S. Ct. 295. Continuing a temporary injunction pending an appeal to the federal supreme court from a decree of a circuit court, dis- missing a bill asking injunctive _ relief, operates to continue in the circuit court such jurisdiction over the subject matter of the litigation and the parties as to en- able it to preserve the status quo pend- ing the appeal, including the power to take cognizance of the violation of the injunction. Merrimack, etc., Sav. Bank v. Clay Center, 219 U. S. 527, 55 L. Ed. 320. 31 S. Ct. 295. "It is well settled that the force and effect of a decree dismissing a bill and discharging an injunction is neither sus- pended nor annulled as a mere conse- quence of an appeal to this court, even if a supersedeas is allowed Slaughter- House Cases, 10 Wall. 273, 297, 19 L. Ed. 915; Hovey v. McDonald, 109 U. S. 150. 161, 27 L. Ed. 888, 3 S. Ct. 136; Leonard v. Ozark Land Co., 115 U. S. 465, 29 L. Ed. 44^, 6 S. Ct. 127; Knox County z: Harsh- man, 132 U. S. 14, 33 L. Ed. 249, 10 S. Ct. 8. That the circuit court, to the end that the status quo might be preserved pend- ing such appeal, had the power to con- tinue an injunction in force by virtue of its inherent equity power, is not doubt- ful." Merrimack, etc., Sav. Bank v. Clav Center, 219 U. S. 527, 55 L. Ed. 320, 31 S. Ct. 295. 1067-32a. Good faith.— The honest be- lief that when an appeal to the federal supreme court from a decree of a circuit court, dismissing a bill asking injunctive relief against the removal or destruction by municipal officers of the poles and wires of a light and power company, had been dismissed and an order of dismissal entered, there was no reason why such poles and wires should not be removed or destroyed, although not sufficient to acquit of a technical contempt of court ■uhere no mandate had issued or could have issued under the rules of the su- preme court, may reduce the punishment to the payment of the costs of the con- tempt proceedings. Merrimack, etc., Sav. Bank z\ Clay Center, 219 U. S. 527, 55 L. Ed. 320. 31 S. Ct. 295. See ante, CON- TEMPT, p. 367. 667 1067-1068 INQUESTS AND INQUIRIES. Vol. VL was forbidden by an injunction, where the only remedial relief possible was a fine payable to the complainant, must be dismissed without prejudice to the power and right of the court granting the injunction to punish for contempt by proper proceedings, where there has been a complete settlement between the par- ties of all the matters involved in the original equity cause-^^*^ Punitive Sentence. — A punitive sentence appropriate only to a proceeding at law for criminal contempt where the contempt consisted in doing that which had been prohibited by an injunction could not properly be imposed in contempt proceedings which were instituted, entitled, tried, and, up to the moment of sen- tence, treated, as a part of the original cause in equity.^^^ 3. Punishment — Object of. — See note 38. 4. Decree. — Where the trial judge makes no general finding that the defend- ants are guilty, but in one decree adjudges that each defendant is respectively guilty of all of the independent acts set out in the petition, it should be reversed if it appears that the defendants are sentenced on any count which, in law or in fact, does not constitute a disobedience of the injunction.^^'^ INNOCENCE.— See note la. INNOCENT PURCHASER.— See ante, Bills, Notes and Checks, p. 204; Sales; Vendor and Purchaser. INNS AND INNKEEPERS.— See the title Inns and Innkeepers, vol. 6, p. 1069, and references there given. IN PARI MATERIA.— See post. Statutes. INQUESTS AND INQUIRIES.— See the title Inquests and Inquiries, vol. 6, p. 1070, and references there given. 1067-36a. Dismissal of proceedings. — Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492, re- versing 33 App. D. C. 516. 1067-36b. Punitive sentence. — Gompers V. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492, reversing, 33 App. D. C. 516. 1068-38. Punishment — Object of. — Mer- rimack, etc., Sav. Bank v. Clay Center, 219 U. S. 527, 55 L. Ed. 320, 31 S. Ct. 295. 1068-40a. Decree — Sentence — Review. — A decree adjudging each defendant guilty of the independent acts set out in separate paragraphs of a petition charging them with contempt of an injunction order, and consolidating sentence without indicating how much of the punishment was imposed for the disobedience in any particular in- stance, should be reversed if it appears that the defendants have been sentenced on any charge which, in law or in fact, does not constitute a disobedience of the injunction. (1911), Gompers v. Bucks Stove, etc., Co., 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492, reversing judgment (1909), 33 App. D. C. 516. 1068-la. Innocent acts. — In a case in- volving the consideration of the validity under the constitution of the United States of the imposition of double dam- ages under an act of the state of Min- nesota for a casual and involuntary tres- pass made by cutting or assisting to cut timber upon the lands of the state, the court said: "It will be seen that the foundation of the arguments of plaintiffs in error is that their trespass was an innocent act. There is some ambiguity as to what is meant by 'innocence.' They ciuote Mr. Justice Case in Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648. It was there said that 'a law that punished a citizen for an innocent action, or, in other words, for an act, which when done, was in vio- lation of no existing law,' could not 'be considered a rightful exercise of legisla- tive power.' But it was said: 'The legis- lature may enjoin, permit, forbid and punish; they may declare new crimes and establish rules of conduct for all its citi- zens in future cases.' In other words, innocence can not be asserted of an ac- tion which violates existing law, and ignorance of the law will not excuse. The law in controversy has no ex post facto- element or effect in it. It was existing law when the trespass of .plaintiffs in er- ror was committed, and a trespass is a legal wrong, not an innocent act. There is no element of deception or surprise in the law. When the permit was issued plaintiffs in error knew the limitations of it, and' they took it at the risk and conse- quences of transgression." Shevlin-Car- penter Co. v. Minnesota, 218 U. S. 57, 68, 54 L. Ed. 930, 30 S. Ct. 663. See ante, CONSTITUTIONAL LAW, p. 264. G68 Vol. VI. INSPECTION, ETC., EXAMINATION. 1076-1077 INSANITY. VI. Criminal Responsibility of Insane Persons, 669. B. Instructions, 669. C. Evidence, 669. CROSS REFERENCES. See the title Insanity, vol. 6, p. 1072, and references there given. VI. Criminal Responsibility of Insane Persons. B. Instructions. — A requested instruction as to the insanity of the accused is properly refused where there is only the merest shadow of evidence that such ac- cused was not of sound mind, and the judge has instructed the jury that the bur- den of proof is on the government to prove sanity beyond a reasonable doubt, and told the jury to consider all the evidence, including the bearing of the pris- oner and the manner of his own testimony, and stated the evidence relied upon by him.2^'' C. Evidence. — Burden of Proof. — See note 25. INSCRIPTION. — As to inscribing copyright notice, see ante. Copyright, p. 377. INSIDIOUS MACHINATIONS.— The meaning of the words "insidious ma- chination" in the Philippine Code may be said to be a deceitful scheme or plot with an evil design.^ INSOLVENCY. — See the title Insolvency, vol. 7, p. 1, and references there given. INSPECTION AND PHYSICAL EXAMINATION.— See the title Inspec- tion AND Physical Examination, vol. 7. p. 14, and references there given. 1076-24a. Instructions. — United States by deceit shall be void. It is then pro- V. Battle (C. C. 1907), 154 F. .540, affirmed. vided by article 1269 that "There is deceit Battle V. United States, 209 U. S. 36, 52 when by words or insidious machinations L. Ed. 670, 28 S. Ct. 422. on the part of one of the contracting par- 1077-25. Burden of proof — Presumption ties the other is induced to execute a con- of sanity. — Until evidence is given on the tract which without them he would not other side, the burden of proof is satisfied liave made." The meaning- of the words by a presumption arising from the fact insidious machinations may be said to be that most men are sane. Battle v. United a deceitful scheme or plot with an evil States, 209 U. S. 36, 52 L. Ed. 670, 28 S. design, or, in other words, with a fraudu- Ct. 422. lent purpose. Strong v. Repide, 213 U. S. 1077-a. Insidious machinations.— In art. 419, 430, 53 L. Ed. 853, 29 S. Ct. 521. See 1265 of Code of Philippine Islands it is ante, FRAUD AND DECEIT, p. 597. T)rovidcd that consent to a contract given CG9 18-19 INSPECTION LAWS. Vol. VII. INSPECTION LAWS. III. Power to Enact, 670. V. Prohibition or Obstruction of, or Discriminations against Foreign or Interstate Commerce, 670. A. In General, 670. B. Food Inspection Laws, 671. VII. Inspection Taxes or Charges, 671. B. Validity of Tax or Charge, 671. IX. Effect of Statute Being Invalid in Part, 672. X. Construction of Peculiar Provisions of Laws, 672. CROSS REFERENCES. See the title Inspection Laws, vol. 7, p. 16, and references there given. In addition, see ante, Appeai, and Error, p. 34; Constitutional Law, p. 264; Courts, p. 398; post, Interstate and Foreign Commerce; Police Power; Revenue Laws; Ships and Shipping. III. Power to Enact. See note 16. An inspection law enacted in the exercise of the police power will be upheld by the courts, although the legislature may have acted unwisely in enacting it.^^** V. Prohibition or Obstruction of, or Discriminations against Foreign or Interstate Commerce. A. In General. — Property at an intermediate point between the place of ship- 18-16. Food inspection laws. — The re- quirement that the name and percentage of the diluent or diluents or bases shall be stated in the labels, which is made by Iowa Code (Supp. 1907, §§ 5077-a6— 5077- a24), relating to the sale within the state of concentrated commercial feeding stuffs, is a proper exercise of the police power of the state, and does not, as applied to sales by importers in the original pack- ages, amount to an unconstitutional regu- lation of interstate commerce. Standard Stock Food Co. V. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784. The prohibition against sales by im- porting purchasers of concentrated com- mercial feeding stufifs in the original pack- ages, which is made by Ind. Acts 1907, chap. 206, unless there be compliance with its requirements as to inspection and an- alysis, and the disclosure of the ingredi- ents, including the minimum percentage of crude fat and crude protein, and the maximum percentage of crude fiber, and its incidental provisions for the filing of a certificate, for registration, and for labels and stamps, is a proper exercise of the police power of the state, and not an unconstitutional regulation of inter- state commerce. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. 715. North Carolina oil inspection law. — Subjecting all kerosene or other illuminat- ing oils sold or offered for sale in the state to an inspection for the purpose of determining the safety and value of such oils for illuminating purposes, as is done by the North Carolina Act of March 8, 1909 (Acts 1909, c. 554), is a proper exer- cise of the police power, and does not violate the commerce clause of the fed- eral constitution (Const, art. 1, § 8). Red "C" Oil Mfg. Co. V. Board, 222 U. S. 380, 56 L. Ed. 240, 32 S. Ct. 152, affirming, decree (C. C. 1909), 172 F. 695. 19-18a. Law will be upheld though an unwise enactment. — Waters-Pierce Oil Co. V. Deselems, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. The exclusion from the territory by Okla. Laws 1899, p. 186, § 2, of illuminat- ing fluids which have a specific gravity above 46 degrees Baume, is within the police power of the territory, although some oils may thus be excluded which are as safe for use as those which comply with the statutory standard. Waters- Pierce Oil Co. V. Deselems, 212 U. S. 159,. 53 L. Ed. 453, 29 S. Ct. 270. See post,. POLICE POWER. 670 Vol. VII. INSPECTION LAWS. 21-23 ment and the ultimate destination may cease to be a subject of interstate com- merce and therefore subject to the inspection laws of the state.^^^ A person is entitled to be protected against a state inspection law which violates the com- merce clause of the federal constitution, whether by its terms or the manner of its enforcement, and the decision of a state court which denies such protection gives effect to the law, and is reviewable by the supreme court of the United States.^'*' B. Food Inspection Laws.— A state food inspection law, so far as it affects interstate commerce even indirectly and incidentally, can have no validity if re- pugnant to a federal regulation.-* i** VII. Inspection Taxes or Charges. B. Validity of Tax or Charge.— See notes 50, 51. 21-37a. When property ceases to be a subject of interstate commerce. — General Oil Co. V. Grain, 209 U. S. 211, 52 L. Ed. 754, 28 S. Gt. 475. See, also, post, INTER- STATE AND FOREIGN GOMMERGE. Oil shipped from Pennsylvania and Ohio, and destined ultimately for points in Arkansas, Louisiana, and ]\Iississippi, is not property in interstate commerce, so as to be exempt from state inspection laws while it is held at a distributing point maintained by the shipper in Ten- nessee, at which point such oil is unloaded from tank cars into various tanks, bar- rels, and other receptacles, and from which it is forwarded to its final destina- tion. General Oil Go. v. Grain, 209 U. S. 211, 52 L. Ed. 754, 28 S. Gt. 475. 21-37b. Decision denying protection against unconstitutional law reviewable by supreme court. — General Oil Co. v. Grain, 209 U. S. 211, 52 L. Ed. 754, 28 S. Gt. 475. See ante, APPEAL AND ERROR, p. 34. A decision of a state court dismissing, on the ground that the suit was one against the state, and therefore not within its jurisdiction, a bill which seeks to en- join a state oil inspector from enforcing a state inspection law, on the theory that such law, if applied to the oils in con- troversy, violates the commerce clause of the federal ' constitution, gives effect to such law, and is reviewable by the su- preme court of the United States. General Oil Go. V. Grain, 209 U. S. 211, 52 L. Ed. 754. 28 S. Gt. 475. 22-41a. State law invalid if repugnant to federal regulation. — Savage v. Tones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Gt. 715. State law not repugnant to federal stat- ute. — Gongress did not, by the passage of the Food and Drusr Act of June 30, 1906 (34 Stat, at L. 768, chap. 3915, U. S. Gomp. Stat. Supp. 1911, p. 1354), for the prevention of adulteration and misbrand- ing of food and drugs when the subject of interstate commerce, preclude the enactment of Ind. Acts of 1907, chap. 206, prohibiting sales of concentrated com- mercial feeding stuffs in the original pack- ages unless there be compliance with its requirements as to inspection and analysis and the disclosure of the ingredients, in- cluding the minimum percentage of crude fat and crude protein, and the maximum percentage of crude fiber, and with its incidental provisions for the filing of a certificate, for registration, and for labels and stamps. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Gt. 715. There is no conflict between the pro- visions of the Food and Drug Act of June 30, 1906 (34 Stat, at L. 768, chap. 3915, U. S. Gomp. Stat. Supp. 1911, p. 1354), for the prevention of the adulteration and misbranding of foods and drugs when the subject of interstate commerce, and the requirment of Iowa Gode (Supp. 1907, §§ 5077-a6 — 5077-a24), as applied to sales by importers in the original packages, that there shall be stated in the labels on con- centrated commercial feeding stuffs of- fered for sale in the state the name and percentage of the diluent or diluents or bases. Standard Stock Food Go. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Gt. 784. 23-50. When inspection charge is valid. —Standard Stock Food Go. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Gt. 784. The imposition bj^ Iowa Gode (Supp. 1907, §§ 5077-a6 — 5077-a24), governing the inspection and analysis of concentrated commercial feeding stuffs, of an inspec- tion fee of 10 cents per ton on such prod- ucts when sold or offered for sale within the state, or the exaction, in lieu thereof, in the case of "condimental, patented, proprietar}^ or trademark stock or poultry foods," of an annual license fee of $100, does not render the statute invalid as ap- plied to sales by importers in the original packages. Standard Stock Food Go. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Gt. 784. 23-51. Inspection law held not a dis- guised revenue measure. — An inspection charge of 80 cents per hundred for stamps to be affixed to packages of concentrated commercial feeding stuffs, made by Ind. Laws 1907, chap. 206, is not on its face so unreasonably in excess of the cost of analysis, salaries of officials, and other necessary expenses, as to invalidate the 671 25 INSTRUCTIONS. Vol. VII. IX. Effect of Statute Being Invalid in Part. The validity of certain sections of a statute providing for the inspection and branding of illuminating oil is not affected by the fact that another section of the same statute, which is clearly separable from the rest of the act, is unconstitu- tional. •^*5'' X. Construction of Peculiar Provisions of Laws. The rules applicable to the construction of statutes in general apply to the in- terpretation of the peculiar provisions of inspection laws.*'^" INSPECTION OF SHIPS.— See post, Ships and Shipping. INSTRUCTIONS. IV. Form and Requisites, 673. B. Requisites, 673. 10. Must Be Founded on the Pleadings and Evidence, 673. a. Must Be Founded on the Evidence, 673. (1) In General, 673. (3) Competency and Sufficiency of the Evidence, 673. bb. Sufficiency of Evidence Considered, 673. b. Must Be Founded on Issues Raised by the Pleadings. 15. Invasion of Province of Jury, 673. f. Assumption of Facts, 673. (1) In General, 673. VI. Further Instructions, 673. A. In General. CROSS REFERENCES. See the title Instructions, vol. 7, p. 26, and references there given. In addition, see ante. Brokers, p. 212; Carriers, p. 216; Contracts, p. 373; Damages, p. 455 ; post. Master and Servant. statute, when applied to sales by im- products of petroleum which do not con- porters in the original packages, as a dis- form to the statutory- standard, does not guised revenue measure. Savage v. Jones, affect the validity of the other sections 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. of that statute which provide for inspec- 715. tion and branding. Waters-Pierce Oil Co. A charge of J/2 cent per gallon, made by v. Deselems, 212 U. S. 159, 53 L. Ed. 453, the North Carolina Oil Inspection Act of 29 S. Ct. 270. March 8, 1909 (Acts 1909, c. 554), for the 25-66b. Construction of provision some- avowed purpose of defraying the expense what confusing from use of two nega- connected with the inspection, can not be tives. — The plain purpose of the oil in- said, in advance of the experience gained spection provisions of Okla. Sess. Laws from the actual operation of the act, to 1899, p. 186, § 2, is to permit the use of be so seriously in excess of what is nee- illuminating fluids which, when tested by essary as to justify the imputation that the Baunie hydrometer, indicate at least the real purpose of the statute was to 46 degrees specific gravity, and to exclude raise a revenue, in violation of the com- all oils of a ■ lighter character, although merce clause of the federal constitution. the language of the statute, that all illu- Red "C" Oil Mfg. Co. v. Board, 222 U. S. minating fluids shall be branded "re- 380, 56 L. Ed. 240, 32 S. Ct. 152, affirming jected" which "have not a specific gravity decree (C. C. 1909), 172 F. 695. of not less than 46 degrees Baume," is 25-66a. Effect of statute being invalid somewhat confusing from the use of the in part. — Waters-Pierce Oil Co. v. Dese- two negatives, and from the fact that the lems, 212 U. S. 159, 53 L. Ed. 453, 29 S. Baume scale is to be read inversely. Ct. 270. See post, STATUTES. Waters-Pierce Oil Co. v. Deselems, 212 The possible unconstitutionality of the U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. See provisions of Okla. Laws 1899, p. 186, § post, STATUTES. 4, making it a criminal offense to sell 072 Vol. VII. IXSURABLE IXTEREST. 38-61 As to the necessity for exceptions and objections to the granting and refusing of instructions and the form and sufficiency thereof, see arte. Appeal axd Er- ror, p. 34. As to directing verdict, see post, A'erdict. IV. Form and Requisites. B. Requisites — 10. Must Be Founded on the Pleadings and Evidence — a. Must Be Founded on the Evidence — ( 1) In General. — See note 43. (3) Competency and Sufficiency of the Evidence — bb. Sufficiency of Ez'idence Considered. — See note 49. b. Must Be Founded on Issues Raised by the Pleadings. — Instructions appli- cable to a specific defense may be given even though the specific defense be not pleaded, if facts amounting to the specific defense are pleaded and found. ^'^^ 15. Invasion of Province of Jury — f. Assumption of P-icts — (1; In Gen- eral. — See note 6. VI. Further Instructions. A. In General. — See note 40. INSURABLE INTEREST.— See post. Insurance; ^Iarine Insurance. 38-43. Homicide cases. — Requested in- structions upon the law of justifiable hom- icide and involuntary homicide are prop- erly refused where, according to the testi- mony of the accused, the death was' due to an accident, and, according to all the other evidence, was caused by an inten- tional and unjustified assault with a deadly weapon. Battle v. United States, 209 U. S. 36. 52 L. Ed. 670, 28 S. Ct. 422. See ante, H0:MIC1DE, p. 619. 39-49. Mere suspicion insufficient to support an instruction. — A requested in- struction as to the insanity of the ac- cused is properly refused where there is only the merest shadow of evidence that such accused was not of sound mind, and the judge has instructed the jury that the burden of proof is on the government to prove sanity beyond a reasonable doubt, and told the jury to consider all the evi- dence, including the bearing of the pris- oner and the manner of his own testi- mon}', and stated the evidence relied upon by him. Battle r. United States. 209 U. S. 36. 52 L. Ed. 670, 28 S. Ct. 422. 41-60a. When specific defense not pleaded. — That undue influence was not expressly pleaded in defense of a contract does not preclude instructions defining it, if facts are pleaded and found which amount to it. Judgment, Snyder v. Strib- ling ('1907), 89 P. 222, 18 Okl. 168, af- firmed. Snyder z\ Rosenbaum, 215 U. S. 261, 54 L. Ed. 186. 30 S. Ct. 73. See post, UNDUE IXFLUEXCE. 54-6. Assumption of facts. — The refusal to give a requested instruction upon the necessity of corroborating the testimony of an accomplice is not error, where the request assumes that the witness was an 12 U S Enc— 43 673 accomplice, a conclusion which was con- troverted, and against which the jury might have found, in the light of the testi- mony. Holmgren v. United States, 217 U. S. 509. 54 L. Ed. 861, 30 S. Ct. 588, affirm- ing judgment (1907), 156 F. 439, 84 C. C. A. 301. Instructions should not be given assum- ing that a contract is in force, if its valid- ity has been denied and its execution is claimed to have been abandoned. Judg- ment, Snyder z: Stribling (1907), 89 P. 222, 18 Okl. 168, affirmed. Snyder :■. Rosen- baum, 215 U. S. 261, 54 L. Ed. 186, 30 S. Ct. 73. 61-40. Court not bound to repeat or give further instructions. — Additional instruc- tions need not be given when already covered by the charge as given. William- son V. United States, 207 U. S. 425. 52 L. Ed. 278, 28 S. Ct. 163. The refusal of the trial to give re- quested instructions as to the presumption of innocence and as to reasonable doubt is not error, where the jury were other- wise fully and correctlj' instructed on these matters. (1910), Holt z-. United States, 218 U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, affirming judgment. United States z: Holt (C. C. 1909), 168 F. 141. A requested instruction is properly re- fused where the instructions given and not objected to embodied everything con- tained in the mstruction refused that was adapted to the testimony and to the con- sideration which the jury might give to its various phases. Judgment (1906). 28 App. D. C. 498, affirmed. Pickford v. Tal- bott. 211 U. S. 199. 53 L. Ed. 146. 29 S. Ct. 75. IXSURAXCB. Vol. VIL INSURANCE. II. Insurance Companies, 675. C. Regulation, Control and Taxation, 675. 1. In General, 675. 3. Foreign Insurance Companies, 675. a. \\'hat Constitvites Doing Business in a State, 675. c. Right to Exclude from or Impose Conditions upon Transac- tion of Business, 676. (2) Right to Impose Conditions and Make Regulations, 676. (f) Conditions as to Service of Process and Entering Appearance, 676. e. Withdrawal from State and Revocation of Power of Agent, 676. D. Insolvent Companies, 677. 1. Rights of Policy Holders, 677. E. Dissolution and Winding Up at Suit of Policy Holder, 677. 1. Grounds, 677. 2. Right to Receivership, 677. 3. Bill — Allegation of Insolvency, 677. IV. The Contract of Insurance, 677. C. Interpretation and Construction, 677. 1. Rules and Principles Governing Exposition, 677. b. Applicability of Rules for Construction of Written Instru- ments, 677. 2. What Law Governs, 678. a. In General, 678. D. Persons \Mio May Procure Insurance, 678. 2. Insurable Interest, 678. a. Necessitv, 678. (1) General Rule, 678. (3) In Life, 678. (a>4) In General, 678. d. Extinguishment and Cessation of Interest, 678. (2) In Life, 678. E. Premium, 678. 5. Forfeiture upon Nonpayment ad Diem, 678. f. \\'aiver of Forfeiture, 678. (1) Nonpayment of Premium, 678. (a) In General, 678. 7. Tariff Associations, 678. E^. Loans on Policy, 679. G. Risks and Causes of Loss, 680. V/2. Effect of Public Policy, 680. 4. Life Insurance, 680. a. Intentional Self-Destruction, 680. (1) Suicide. 680. e. Legal Execution, 680. I. Modification and Alteration of Contract, 681. K. Forfeiture and Avoidance, 681. 2. Forfeitures, 681. c. Breach of Continuing and Promissory Warranties and Condi- tions, 681. 674 Vol. MI. INSURANCE. 77-79 (1) Fire Insurance, 681. (b) Precautions against Fire, 681. bb. Care, Occupancy and Use of Premises, 681. (ddj Keeping Explosives and Inflammable Substances, 681. f. Waiver and Estoppel, 681. (2) Estoppel by Conduct, 681. (e) Necessity for Writing, 681. (h) Waiver by Agents, 681. aa. Authority of Agent, 681. (bb) Condition Restricting Authority of Agent, 681. K>^. Right of Policy Holder to Share in Surplus and Profits, 682, L. Assignment and Transfer, 682. 3. Requisites, 682. d. Insurable Interest of Assignee, 682. M. Extent of Loss and Liability Therefor, 683. 4. Double Insurance, 683. L'. Reinsurance, 683. 3. Construction, 683. 5. Pavment of Loss as Condition Precedent to Enforcement, 683. V. Remed'ies, 684. 9. Process and Appearance, 684. a. Foreign Company, 684. 11. Pleading, 685. a. Declaration. Bill or Complaint, 685. CROSS REFERENCES. See the title Ixsur^vnce, vol. 7, p. 66, and references there given. In addition, see ante, Constitutioxal Lav^, p. 264; Due Process of Law, p. 475; Foreign Corporations, p. 584; Police Power; Taxation. As to federal courts following decisions of state court as to construction of charter, see ante. Courts, p. 398. IL Insurance Companies. C. Regulation, Control and Taxation — 1. Ix General. — Insurance com- Danies, within the jurisdiction of a state, are subject to such regulations, in re- spect of their relative rights and duties, as the state may, in the exercise of its po- lice power, and in harmony with its own and the federal constitution, prescribe for the public convenience and the general good.^^ 3. Foreign Insurance Companies — a. What Constitutes Doing Business in a State. — See note 13. And see, also, post, "Foreign Company," IV, V, 9, a. 77-8a. Regulation of insurance com- ment of a policy, to be delivered upon panics. — German Alliance Ins. Co. z'. receipt of certain unpaid assessments, and Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. two adjustments within the state of Ct. 246, citing Lake Shore, etc., R. Co. v. claims which have accrued, do not con- Ohio, 173 U. S. 285. 297, 43 L. Ed. 702, 19 stitute doing business within the state S. Ct. 465; Jacobson z\ Massachusetts, 197 after the company's asserted withdrawal U. S. 11, 31, 49 L. Ed. 643, 25 S. Ct. 358, therefrom in good faith, so as to preclude and House r. Mayes, 219 U. S. 270, 55 L. it from revoking its designation of the Ed. 213, 31 S. Ct. 234. state insurance commissioner as its agent 79-13. What constitutes "doing business." to receive service of process. (1910), — The receipt by a foreign insurance com- Hunter v. Mutual Reserve Life Ins. Co., pany at its home office of premiums upon 218 U. S. 573, 54 L. Ed. 1155, 31 S. Ct. 127, policies theretofore issued, together with affirming judgment (1906), 76 N. E. 1072, four isolated acts extending over a period 184 N. Y. 136, 6 A. & E. Ann. Cas. 291, of three years, consisting in rewriting an distinguishing Connecticut Mut. Life Ins. existing policy, sending a check in pay- Co. v. Spratlej', 173 U. S. 602, 43 L. Ed. 675 85 INSURANCE. Vol. VII. c. Right to Exclude from or Impose Conditions upon I^ransaction of Business — (2) Right to Impose Conditions and Make Regulations — (f) Conditions as to Service of Process and Entering Appearance. — See post, "Foreign Company," IV, V, 9, a. Revocation of power of agent upon withdrawal from state, see ante, "What Constitutes Doing Business in a State," II, C, 3, a; post, "Withdrawal from State and Revocation of Power of Agent," II, C, 3, e. e. IVithdrazual from State and Revocation of Power of Agent. — A foreign in- surance company upon withdrawing from a state in good faith may revoke a power which it had given to the insurance commissioner to accept service for 569, 19 S. Ct. 308; Mutual, etc.. Life Ass'n V. Phelps, 190 U. S. 147, 47 L. Ed. 987, 23 S. Ct. 707; Mutual, etc.. Life Ins. Co. z: Birch, 200 U. S. 612, 50 L. Ed. 620, 26 S. Ct. 752, and Commercial Mut. Acci. Co. V. Davis. 213 U. S. 245, 53 L. Ed. 782, 29 S. Ct. 445. The acts which were adduced in the pre- ceding paragraph were not instances of new business. They related to old trans- actions, and were intended only to ful- fill their obligations. This was the plain duty of defendant, a duty which it could not evade, nor could the state even pre- vent it. Bedford v. Eastern Bldg., etc., Ass'n. 181 U. S. 227, 45 L. Ed. 834, 21 S. Ct. 597. Between doing business for such purposes and doing business generally, there is quite a difference. In Connecticut Mut. Life Ins. Co. v. Spratley. 172 U. S. 602, 43 L. Ed. 569, 19 S. Ct. 308, the life insurance policy, which was the subject of the suit, was is- sued by the insurance company when it was concededly present and doing busi- ness in the state of Tennessee. The serv- ice was upon an agent by the name of Chaffee, sent to investigate into the cir- cumstances of the death of Spratley and the claims of his widow. These facts distinguish the case from the one at bar. But certain language of the court is quoted to establish, not only was the in- surance company so doing business in the state as to justify service of process upon the agent appointed by the com- pany, but doing business generally. Hun- ter z'. Mutual Reserve Life Ins. Co., 218 U. S. 573, 54 L. Ed. 1155, 31 S. Ct. 127. "Mutual, etc.. Life Ass'n v. Phelps, 190 U. S. 147. 47 L. Ed. 987, 23 S. Ct. 707, is distinguished from the case at bar by the same features that distinguish the Sprat- ley Case from it. Tlie suit was brought by a citizen of the state of Kentucky upon a policy issued when the association was doing a general business in the state through regular agents, under a license from the state. The commissioner subse- quently canceled its license, and it with- drew its agents from the state. The serv- ice of process in the action was never- theless made upon the comrnissioner and sustained. It was stipulated by the par- ties that outstanding policies were con- tinued in force after the action of the com- missioner, on which the association had collected and was collecting dues, pre- miums, and assessments, and this court b.eld, on the authority of Connecticut, etc., Ins. Co. I'. Spratley, 172 U. S. 602, 43 L. Ed. 569, that the association was doing business in the state." Hunter z>. Mutual '^eserve Life Ins. Co., 218 U. S. 573, 54 L. Ed. 1155, 31 S. Ct. 127. "Mutual, etc.. Life Ins. Co. v. Birch, 200 U. S. 612, 50 L. Ed. 620, 26 S. Ct. 752, was a like case. Certain judgments which were sued on in New York were obtained in actions upon policies issued when the insurance company was doing its regular 1-usiness in the state of North Carolina, and antedated its resolution to withdraw from the state. The case was rested in the court of appeals of . New York on Woodward z'. Mutual Reserve L. Ins. Co., 178 N. Y. 490, 102 Am. St. Rep. 519, 71 \. E. 10. It was said in that case that tlie stipulation of the company in regard lo service of process became an obliga- tion of the company precisely as though It 'had been incorporated in the policies; and thereafter, whether the coinpany con- tinued to do business in the state or not, policy holders could commence action by service upon the secretary of state,' sub- sequently changed to the insurance com- missioner. Woodward v. Mutual Reserve L. Ins. Co., was cited by this court in its opinion sustaining the judgment in the Birch Case." Hunter v. Mutual Re- serve Life Ins. Co., 218 U. S. 573, 54 L. Ed. 1155, 31 S. Ct. 127. "Commercial Mut. Acci. Co. v. Davis, 213 U. S. 245, 53 L. Ed. 782, 29 S. Ct. 445, has the same characteristics as the cases which we have reviewed, and needs no other comment than that it repeated the doctrine of the other cases." Hunter z-. :Mutual Reserve Life Ins. Co.. 218 U. S. 573. 54 L. Ed. 1155. 31 S. Ct. 127. 85-33a. Withdrawal from state and revocation of power of agent. — Hunter v. Mutual Reserve Life Ins. Co., 218 U. S. 573. 54 L. Ed. 1155, 31 S. Ct. 127. A foreign insurance company, upon withdrawing from the state in good faith, to escape the compulsion of Act N. C. I'eb. 10, 1899 (Laws 1899, c. 62), requiring it to become a domestic corporation if it 676 Vol. VII. INSURANCE. 86-101 D. Insolvent Companies — 1. Rights of Policy Holders. — See post, "Dis- solution and Rendering Up at Suit of Policy Holder," II, E. E. Dissolution and Winding Up at Suit of Policy Holder — 1. Grounds, — The fact that the stockholders in a mutual life company claim in a pending suit to own the entire surplus, which claim the company fails to deny, does not authorize a suit in equity by a policy holder entitled to participate equitably in the distribution of the surplus according to methods and principles adopted by the company for an accounting and the appointment of a receiver to wind up its affairs, based upon mismanagement and misappropriation by its officers and di- rectors. ^^^ 2. Right to Receivership. — The appointment of a receiver and a real, though not formal, dissolution of a mutual life company, and the distribution of its as- sets, can not be had at the instance of a policy holder entitled to participate equita- bly in the distribution of the surplus, because the surplus fund is not as large as it should have been, owing to the misconduct of the company's officers^ and be- cause the company has not distributed as much of the surplus as complainant deems himself entitled to, by reason of such misconduct, where no trust relation exists between the policy holder and the company, and no claim is made that the apportionment made is inequitable as between the policy holders, or is based upon erroneous principles.^^'' A court of equity is bound to take all the facts into con- sideration, and to weigh the relative advantages and disadvantages of granting an accounting and appointing a receiver to wind up the business of a mutual life insurance company at the suit of a policy holder because of the wrongdoing of its former officers and directors, assuming that jurisdiction exists to grant such relief-ss-^ 3. Bill — Allegation of Insolvency. — No case for an accounting or for the appointment of a receiver to wind up a mutual life company is made by allega- tions of insolvency contained in a bill filed by a policy holder, which are based- upon the idea that the company itself is liable to policy holders for frauds or wrongdoing committed by the officers or directors against the company, and in their personal interests.-^'^*^ IV. The Contract of Insurance. C. Interpretation and Construction — 1. Rules and Principles Govern- ing Exposition — b. Applicability of Rules for Construction of Written Insirny- ments. — The rule of ejusdem generis is a rule of interpretation; applicable to insurance policies which the court granted, arguendo, should be applied more liberally to contracts of insurance than to contracts of other kinds. ^^^ desires to continue to do business in the Mutual Reserve Life Ins. Co., 218 U. S. state, may revoke its appointment of the 573, 54 L. Ed. 1155, 31 S. Ct. 127. state insurance commissioner as its agent 86-39a. Grounds for torfeiture and dis- to receive service of process, so far as solution. — Equitable Life Assur. Soc. v. claims of citizens of other states are con- Brown, 213 U. S. 25, 53 L. Ed. 682, 29 S. cerned, vi^hich are assigned after such Ct. 404, reversing 151 Fed. 1, 81 C. C. A. 1. withdrawal to a resident of the state for 86-39b. Right to receivership. — Equi- collection, although Laws N. C. 1899, c. table Life Assur. Soc. v. Brown, 213 U. 54, continues the authority of the com- g. 25, 53 L. Ed. 682, 29 S. Ct. 404. missioner iri force and irrevocable so long ^^^^^ Equitable Life Assur. Soc. v. as any liability of the company shall re- ^^ 313 u. S. 25, 53 L. Ed. 682, 29 S. main outstanding in the state. Hunter v. ^ „, Mutual Reserve Life Ins. Co., 218 U. S. „^ „„j ^„ . r • 1 573, 54 L. Ed. 1155, 31 S. Ct. 127, affirming ^ 86-39d Allegation of insolvency .- judgment (1906), 76 N. E. 1072, 184 N. Y. Equitable Life ^^'^"/g/^g^-s^ ^f ^oT 136, 6 A. & E. Ann. Cas. 291. ^- ^- ->^' ^^ L. iid. 682, 29 b. ^..t. 4U4. ^ "It could not revoke it as to any 'in- 101-16a. Rule of ejusdem generis.— terest or right founded or created upon Penman v. St. Paul Fire, etc., Ins. Co., faith thereof,' and which 'required its per- 216 U. S. 311, 54 L. Ed. 493, 30 S. Ct. 312. petuation and continuance.' "' Hunter v. See post, STATUTES. 677 105-131 IXSURAXCE. Vol. VII. 2. What Law Governs — a. In General. — See note 34. D. Persons Who May Procure Insurance — 2. Insurable Interest — a. Necessity — (1) General Rule. — See note 40. (3) In Life — (a^) In General. — The meaning of an insurable interest is an interest in having the life continue, and so one that is opposed to crime.' "'^ d. Extinguishment and Cessation of Interest — (2) /;/ Life. — See note 96. E. Premium — 5. Forfeiture upon Nonpayment ad Diem — f. Waiver of Forfeiture — (1) Nonpayment of Premium — (a) In General. — See note 37. 7, Tariff Associations. — In order to prevent monopoly and encourage com- petition in insurance rates and to meet the evils resulting from the fixing of rates by tariff associations or combinations of insurance companies, the state is compe- tent to adopt appropriate regulations that will tend to substitute competition in place of combination or monopoly.^^^ Regulations having a real, substantial re- 105-34. .What law governs. — A policy of life insurance, though executed at the company's office in Wisconsin, is a Vir- ginia contract, where the application was made by a resident of the latter state at a place in that state, and the policy was delivered to him there, when he gave his note for the premium, which was payable at that place, and subsequently paid there, the policy providing that it should not take effect until the first premium should lie actually paid. Northwestern Mut. Life Ins. Co. V. McCue, 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. "In Equitable Life Assur. Soc. v. Clem- ents, 140 U. S. 226, 35 L. Ed. 497, 11 S. Ct. 822, the question arose whether the contract of insurance sued on was made in New York or Missouri. The assured was a resident of Missouri, and the ap- plication for the policy was signed in Mis- souri. The policy, executed at the office of the company, provided that the con- tract between the parties was completely set forth in the policy and the application therefor, taken together. The application declared that the contract should not take effect until the first premium should have been actually paid during the life of the person proposed for assurance. Two annual premiums were paid in Mis- souri, and the policy, at the request of the assured, was transmitted to him in Mis- souri, and there delivered to him. The court said: "Upon this record the con- clusion is inevital)le that the policy never became a completed contract, binding either party to it, until the delivery of the policy and the payment of the first pre- mium in Missouri; and consequently that the policy is a Missouri contract, and gov- erned by the laws of Missouri.' " North- western i\Iut. Life Ins. Co. z>. McCue, 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. "In Mutual Life Ins. Co. v. Cohen, 179 U. S. 262, 45 L. Ed. 181, 21 S. Ct. 106, the insurance policy contained a stiptilation that it should not be binding until the first premium had been paid and the policy delivered. The premium was paid and the policy delivered in Montana. It was held that 'under these circumstances, under the general rule, the contract was a ^Montana contract, and governed by the law's of that state.' Citing Equitable Life Assur. Soc. V. Clements, 140 U. S. 226, 35 L. Ed 497, 11 S. Ct. 822. The same conditions existed in Mutual Life Ins. Co. 7\ Hill, 193 U. S. 551, 48 L. Ed. 788, 24 S. Ct. 538, and it was decided, the two cases above mentioned being cited, that the policy of insurance involved was a Washington contract, not a New York contract." Northwestern Mut. Life Ins. Co. V. McCue, 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. 106-40. "A contract of insurance upon a life in which the insured has.no interest is a pure wager that gives the insured a sinister counter interest in having the life come to an end. And although that counter interest always exists, as early was emphasized for England in the famous case of Wainewright (Janus Weather- cock), the chance that in some cases it may prove a sufficient motive for crime is greatly enhanced if the whole world of the unscrupulous are free to bet on what life they chose. * * * The existence of such an interest makes a roughly selected class of persons who, by their general relations with the person whose life is insured, are less likely than crimi- nals at large to attempt to compass his death." Grigsby v. Russell, 222 U. S. 149. 56 L. Ed. 133, 32 S. Ct. 58. 115-76a. Life.— Grigsby v. Russell, 222 U. S. 149, 56 L. Ed. 133, 32 S. Ct. 58. 118-96. Grigsby v. Russell, 222 U. S. 149, 56 L. Ed. 133, 32 S. Ct. 58. 127-37. Nonpayment of premiums. — A condition in a policy of life insurance that it shall be void if premiums are not paid when due means only that it shall be void- able at the option of the company, and a breach of the condition may be waived. (1911), Grigsby v. Russell, 222 U. S. 149, 56 L. Ed. 133. 32 S. Ct. 58, reversing de- cree (1909), Russell v. Grigsby, 168 F. 577, 94 C. C. A. 61. 131-49a. German Alliance Ins. Co. v. Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. 678 Vol. MI. IXSURAXCE. 131 lation to that end, and which are not essentially arbitrary, can not properly be characterized as a deprivation of property without due process of law,'*^'' or as a denial of equal protection of the laws."^^'^ They are enacted under the power with which the states have never parted, of caring for the common good wathin the limits of constitutional authority.'* ^'^ E|. Loans on Policy. — A policy holder, desiring to keep his policy on foot and get the profit by the reserve value that it has acquired, may be allowed, at the insurer's discretion, to receive a sum not exceeding the present value, on the terms that, on the settlement of any claim under the policy, the sum so re- ceived shall be deducted with interest ; and that, on failure to pay any premium or interest, the sum received shall be deducted from the reserve value at once. This is called a loan. It is represented by w'hat is called a note, which contains a promise to pay the money but which imposes no personal liability on the policy holder, since the claim of the policy holder on the one side and of the insurer on the other are brought into an account current by the very act that creates the Ct. 246, citing Lake Shore, etc., R. Co. f. 'Ohio, 173 U. S. 285, 297, 43 L. Ed. 702, 19 S. Ct. 465; Jacobson v. Massachusetts, 197 U. S. 11, 31, 49 L. Ed. 643, 25 S. Ct. 358; House v. Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234. "The business of fire insurance is, as everyone knows, of an extensive and pe- culiar character, and its management con- cerns a very large number of people, particularly those who own property and desire to protect themselves by insur- ance. We can well understand that fire insurance companies, acting together, may have owners of property practically at their mercy in the matter of rates, and may have it in their power to deprive the public generally of the advantages flow- ing from competition between rival or- ganizations engaged in the business of fire insurance." German Alliance Ins. Co. V. Hale. 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246, citing Carroll v. Greenwish Ins. Co., 199 U. S. 401, 411, 50 L. Ed. 24(3, 26 S. Ct. 66. 131-49b. Due process of law is not de- nied to an insurance company connected with a tarifif association which fixes rates, by Ala. Code 1896, §§ 2619, 2620, under which the insured or beneficiary in a policy issued by such company may re- cover, in addition to the actual loss, 25 per cent of the amount of such actual loss or damage, any stipulation in the con- tract of insurance to the contrary not- withstanding; but such statute is a valid exercise of the police power of the state, to discourage monopolies and to en- courage competition in the matter of in- surance rates. German Alliance Ins. Co. V. Hale, 219 U. S. 307, 55 L. Ed. 229, .U S. Ct. 246. 131-49C. An insurance company con- nected with a tariflf association which fixes rates is not denied the equal pro- tection of the laws by Alabama Code 1896, §§ 2619, 2620, under which the in- sured or beneficiary in a policy issued by such company may recover, in addition to the actual loss or damage, 25 per cent of the amount of such actual loss or dam- age, since such statute places upon an equality in every respect all insurers which, at the time of issuing the insur- ance or subsequentl}^ and before trial, were in anywaj* connected with any other persons, associations, or corporations which acted together in fixing insurance rates. German Alliance Ins. Co. f. Hale, 219 U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246. See ante, CONSTITUTIONAL LAW, p. 264. 131-49d. "The state, as we may infer irom the words of the statute alone, re- garded the fixing of insurance rates by self-constituted tarifif associations or com- binations as an evil against which the public should be guarded by such legis- lation as the state was competent to en- act. This question was before the su- preme court of Alabama, and the statute was there assailed as violating both the state and federal constitutions. That court held that the object of the legis- lature of Alabama was to prevent mo- nopol}' and to encourage competition in the matter of insurance rates, and that the statute was a legitimate exercise to that end of the police power of the state, not inconsistent with either the state or federal constitution. Constitutional Ins. Co. V. Parkes, 142 Ala. 650, 658, 659, 39 So. 204. The same view of the statute was taken by the state court in subsequent cases. Fireman's Fund Ins. Co. v. Hellner. 159 Ala. 447, 49 So. 297, 17 A. & E. Ann. Cas. 793; /Etna F. Ins. Co. v. Kennedy, 161 Ala. 600, 50 So. 73. We concur entirely in the opinion expressed by the state court, that the statute does not infringe the federal constitution, nor deprive the insurance company of any right granted or secured by that instrument." German Alliance Ins. Co. r. Hale. 219 U. S. 307, 55 L. Ed. 229. 31 S. Ct. 246. 679 131-146 INSURANCE. Vol. VII. latter claim. In settling the account the interest will be computed on the so- called loan but it never could be sued for, any more than any other single item of a mutual account that always shows a balance against the would-be plaintiff. In form, it subsists as an item until the settlement, because interest must be charged on it. In substance, it is extinct from the beginning, because it is a payment and not a loan.*^^ G. Risks and Causes of Loss — 1><. Effect of Pubuc Policy. — Public policy determines the validity of insurance policies, which they can not transcend even by explicit declaration, much less be held to transcend by omissions or im- plications. ^^^ 4. Life Insurance — a. Intentional Self -Destruction — (1) Suicide. — See note 81. e. Legal Execution. — See note 7. In such case neither the estate of the de- 131-49e. Loans on policy. — Parish of Orleans v. New York Life Ins. Co., 216 U. S. 517, 54 L. Ed. — , 30 S. Ct. 385. 134-62a. Effect of public policy. — Northwestern Mut. Life Ins. Co. v. Mc- Cue, 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. See post, "Life Insurance," IV, G, 4. 138-81. Policy silent as to suicide. — Northwestern Mut. Life Ins. Co. v. Mc- Cue, 223 U. S. 234. 56 L. Ed. 419, 32 S. Ct. 220, approving Ritter v. Mutual Life Ins. Co., 169 U. S. 139, 42 L. Ed. 693, 18 S. Ct. 300, in which the court based its con- clusion among other considerations, upon public policy, the court saying that "a contract, the tendencj' of which is to en- danger the public interests or injuriously affect the public good, or which is sub- versive of sound morality, ought never to receive the sanction of a court of justice, or be made the foundation of its judg- ment." In Virginia. — "In Plunkett v. Supreme Conclave. I. O. H.. 105 Va. 643, 55 S. E. 9, a certificate of membership in the Con- clave, which was issued to one Charles W. Plunkett, his wife being the bene- ficiary, was considered. One of the con- ditions was that Plunkett comply with the laws, rules, and regulations then gov- erning the Conclave, or that might in the future be enacted. There was no pro- vision against suicide in the laws, rules, or regulations when the certificate was issued. Such a provision was subse- quently enacted. Plunkett committed suicide, and the Order refused to pay benefits. Plunkett's wife brought suit to recover them, and asserted a vested in- terest in the benefits under the certificate. The contention was rejected. The trial court held that the forfeifure of the rights under the certificate, if the insured while sane committed suicide, was valid, be- cause (1) it involved no vested right of the insured, and (2) because it was a fundamental, though unexpressed, part of the original contract that tlie insured should not intentionally cause his own death. And the court added: 'Inasmuch as the original contract and by-laws were silent upon the subject of suicide by the insured while sane, the new by-law is valid, because there can be no such thing, as a vested right for a sane man to com- mit suicide, and for the further reason that it is nothing more than the written expression of the provision which the law had read into the contract at its incep- tion.' The supreme court of appeals affirmed the judgment, quoting the reason- ing of the trial court, and added to it the considerations of public policy expressed in the Burt v. Union Cent. Life Ins. Co., 187 U. S. 362, 47 L. Ed. 216, 23 S. Ct. 139, and Ritter v. Mutual Life Ins. Co., 169 U. S. 139, 42 L. Ed. 693, 18 S. Ct. 300, and other cases. If the public policy of Vir- ginia were the same as, it is contended, that of Wisconsin is, whether this court should have to yield it, we are not called upon to decide." Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234, 56 L. Ed. 419, 425, 32 S. Ct. 220. Wisconsin. — For discussion of public policy of Wisconsin, see Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234. 56 L. Ed. 419, 32 S. Ct. 220. 146-7. Legal execution. — Death by a legal execution for crime is not covered by a policy of life insurance, though the policy contains no provision excepting such manner of death from the risks cov- ered by it. Northwestern Mut. Life Ins. Co. V. McCue, 223 U. S. 234, 56 L. Ed. 419. 32 S. Ct. 220. "The question was before this court in Burt V. Union Cent. Life Ins. Co., 187 U. S. 362, 47 L. Ed. 216, 23 S. Ct. 139. In the policy passed on, as in the policy in the case at bar, there was no provision ex- cluding death by the law. It was de- cided, however, that such must be con- sidered its effect, though the policy con- tained nothing covering such contingency. These direct questions were asked: 'Do insurance policies insure against crime? Is that a risk which enters into and be- comes a part of the contract?' And an- swering, after discussion, we said: 'It can not be that one of the risks covered by a 680 Vol. VII. INSURANCE. 146-181 ceased nor the innocent parties, his children, can recover. The latter will not be admitted as claimants, as the policy is the measure of the rights of everybody under it, and as it does not cover death by the law, there can not be recovery either by the deceased's estate or 'by his children.*^ Provisions in the charter of a foreign life insurance company making a person who insures therein a mem- ber of the company, and fixing his interest at the amount of his insurance, give no right of recovery for death by legal execution for crime, where, under the laws of the place of contract, the policy, by which alone the rights of the insured and the beneficiaries must be measured, does not cover a death so caused. ^"^ I. Modification and Alteration of Contract. — See post, "Waiver by Agents," IV, K, 2, f, (2), (h).. K. Forfeiture and Avoidance — 2. Forfeiture:s — c. Breach of Continuing and Promissory Warranties and Conditions — (1) Fire Insurance — (b) Precau- tions against Fire — bb. Care, Occupancy and Use of Premises — (dd) Keeping Explosives and Inflammable Substances. — Blasting powder, although it may be a less dangerous explosive than dynamite or gunpowder, is none the less included in the words, "or other explosives," as used in a condition avoiding a policy of fire insurance if there be kept, used, or allowed on the premises, benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gunpowder, naphtha, nitroglyc- erin, or other explosives. ^^^ f. Waiver and Estoppel — (2) Estoppel by Conduct — (e) Necessity for IVrit- ing.—See post, "Waiver by Agents," IV, K, 2, f, (2), (h). (h) Waiver by Agents — aa. Authority of Agent — (bb) Condition Restricting Authority of Agent. — Where the policy in terms provides that any change, mod- ification, or waiver of its conditions must be written upon or attached to policy, no agent has the power to change or modify the contract in any other manner-^*^^ contract of insurance is the crime of the insured. There is an implied obligation on his part to do nothing to wrongfully accelerate the maturity of the policy. Public policy forbids the insertion in a contract of a condition which would tend to induce crime, and as it forbids the in- troduction of such a stipulation, it also forbids the enforcement of a contract un- der the circumstances which can not be lawfully stipulated for.' " Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. Virginia. — Public policy in Virginia precludes a recovery upon a policy of in- surance when the insured is legally ex- ecuted. Northwestern IMut. Life Ins. Co. z: McCue, 223 U. S. 234, .56 L. Ed. 419, 32 S. Ct. 220. Wisconsin. — The cases which declare the public policy of the state of Wiscon- sin are not absolutely definite. Two cases only are cited, McCoy v. Northwestern Mut. Relief Asso., 92 Wis. 577, 47 L. R. A. 681, 66 N. W. 697, and Patterson v. Natural Premium Mut. L. Ins. Co., 100 Wis. 118, 42 L. R. A. 253, 69 Am. St. Rep. 899, 75 N. W. 980. Northwestern Mut. Life Ins. Co. v. McCue. 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. 146-8a. Northwestern Mut. Life Ins. Co. 7'. McCue, 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. 146-8b. Northwestern Mut. Life Ins. Co. z\ McCue, 223 U. S. 234, 56 L. Ed. 419, 32 S. Ct. 220. 173-15a. Penman v. St. Paul Fire, etc., Ins. Co., 216 U. S. 311, 54 L. Ed. 493, 30 S. Ct. 312, affirming St. Paul Fire & Marine Ins. Co. v. Penman, 151 Fed. 961, 81 C. C. A. 151. 181-50a. Necessity for writing. — Pen- man c'. St. Paul Fire, etc., Ins. Co., 216 U. S. 311, 54 L. Ed. 493, 30 S. Ct. 312. A condition avoiding a policy oi fire insurance if blasting powder be kept on the premises is not waived because the insurer's agent knew that the building in- sured was to be occupied by miners, whose custom it was to keep blasting powder in their homes, and for that rea- son charged more than the usual rate, where the policy guards against any acts of waiver or change of its conditions l)y providing that such waiver or change, to be effective, shall be written upon, or at- tached to, the policy. Penman ?'. St. Paul Fire, etc., Ins. Co.. 216 U. S. 311, 54 L. Ed. 493, 30 S. Ct. 312. "The policy furnishes the only way by which its terms can be waived. It pro- vides against modifications by the usage or custom of trade or manufacture. It guards against any acts of waiver of its conditions or a change of them by agents. It provides that such waiver or change 'shall be written upon or attached' to the policy. The company could have used no words wliich would have been more ex- 681 182-183 IXSURAKCB. \'ol. VII. K|. Right of Policy Holder to Share in Surplus and Profits. — Trust in Surplus Fund. — There is no trust relation in New York between a mutual life insurance company and a policy holder entitled to participate equitably in the dis- tribution of the surplus according to such methods and principles as shall be adopted by the company.^-'' Waste and misappropriation of the moneys of a mutual life company by its officers or directors before such moneys reach the surplus fund, and before any distribution to policy holders is made, do not au- thorize a suit in equity to establish a trust in favor of a policy holder, in the ab- sence of any trust relation between the company and the policy holder resulting from the policy.^^"^ Accounting and Distribution of Surplus. — ^J^rauds and mismanagement by the officers and directors of a mutual life company do not entitle a policy holder to an accounting and distribution of the surplus in any other manner, or at any other time, or in any other amounts, than as provided for in the contract, where, by such contract, he is entitled to participate equitably in the distribution of some ])art of the surplus, according to such principles and methods as shall be adopted by the company. ^-'^ Wrongdoing by the officers and directors of mutual life company gives no jurisdiction for an accounting as between the company and a policy holder, in the absence of any trust relation between them-^-"^ L. Assignment and Transfer — 3. Requisites — d. Insurable Interest of Assignee. — Necessity to Sustain Assignment against Personal Represent- ative of Assured. — The holder of a valid policy of insurance upon his own life may, as a matter of financial necessity, make a valid assignment of the policy to a person having no insurable interest in the life of the insured in consideration of a small sum of money and an undertaking to pay the premiums due and to be- come due, and the assignee takes the entire interest in the policy, as against the persona] representatives of the insured. ^^^ plicit. There is no ambiguity about them. Parol testimony was not needed nor ad- missible to interpret them. They con- stituted the contract between the company and the insured. Xo agent had power to change or modif}'' that contract except in the manner provided. This was decided in Northern Assur. Co. v. Grand View Bldg. Ass'n, 183 U. S. 308, 4G L. Ed. 213. 22 S. Ct. 133. Any other ruling would take from contracts the certain evidence of their written words, and turn them over for meaning to the disputes of parol testimony." Penman v. St. Paul Fire, etc., Ins. Co., 216 U. S. 311, 54 L. Ed. 493, 30 S. Ct. 312. 182-52a. Trust in surplus fund. — Equi- table Life Assur. Soc. v. Brown, 213 U. S. 25, 53 L. Ed. 682, 2!» S. Ct. 404. 182-52b. Effect of waste and misappro- priation. — Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 53 L. Ed. 682, 29 S. Ct. 404. 182-52C. Accounting and distribution. — ■ Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 53 L. Ed. 682, 29 S. Ct. 404. 182-52d. Wrongdoing by ofF.cers. — Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 53 L. Ed. 682. 29 S. Ct. 404, re- versing 151 Fed. 1, 81 C. C. A. 1. 183-59a. Necessity as against personal representative. — Grigsby v. Russell, 222 U. S. 149, 56 L. Ed. 133, 32 S. Ct. 58, re- versing Russell V. Grigsby, 168 Fed. 577, 94 C. C. A. 61, distinguishing and over- ruling obiter in W'arnock v. Davis, 104 U. S. 775, 26 L. Ed. 924. The ground suggested for denying the validity of an assignment to a person hav- ing no interest in the life insured is the public policy that refuses to allow insur- ance to be taken out by such persons in the first place. But when the question arises upon an assignment, it is assumed that the objection to the insuiance as a wager is out of the case. The danger that might arise from a general license to all to insure whom they like does not ex- ist. Obviously it is a very dififerent thing from granting such a general license, to allow the holder of a valid insurance upon his own life to transfer it to one whom he, the party most concerned, is not afraid to trust. The law has no universal cynic fear of the temptation opened by a pecuniary benefit accruing upon a death. It shows no prejudice against remainders after life estates, even by the rule in Shelley's Case. Indeed, the ground of the objection to life insurance without in- terest in the earlier English cases was not the temptation to murder, but the fact that such wagers came to be regarded as a mischievous kind of gamnig. Grigsby 682 \'ol. VII. IXSURAXCE. 183-203 Condition Requiring Proof of Interest. — A clause in a policy of life in- surance that any claim against the company arising under any assignment of the poHcy shall be subject to proof of interest does not diminish the rights of an as- signee with no insurable interest, as against the personal representatives of the insured, if there is no rule of law to that eft'ect. and the company sees fit to pay.^^^ M. Extent of Loss and Liability Therefor — 1-. Double Insurance. — See post, "Reinsurance.'" I\ . L'. U. Reinsurance — 3. Coxstructiox. — The term "reinsurance" has a well- known meaning. That kind of a contract has been in force in the commercial world for a long number of years, and it is entirely different from what is termed "double insurance," i. e., an insurance of the same interest. The contract is one of indemnity to the person or corporation reinsured, and it binds the reinsurer to pay to the reinsured the whole loss sustained in respect to the subject of the insurance to the extent to which he is reinsured.^s^ 5. Payment of Loss as Condition Precedent to Enforcement. — The rein- sured, under a compact of reinsurance, is not bound to pay the loss before en- forcing its claim against the reinsurer because such compact provides that losses, if any, shall be payable pro rata with, in the same manner, and upon the same tenns and conditions as paid by the reinsured under the contracts reinsured ; and that, in no event, shall the reinsurer be liable for an amount in excess of a rata- ble proportion of the sum actually paid to the insured by the reinsured under the V. Russell, 222 U. S. 149. 56 L. Ed. 133. 136, 32 S. Ct. 5S. "Life insurance has become in our days one of the best recognized forms of in- vestment and self-compelled saving. So far as reasonable safety permits, it is desirable to give to life policies the or- dinary characteristics of property. This is recognized by the bankruptcv law, § 70, which provides that unless the cash sur- render value of a policy like the one be- fore us is secured to the trustee within thirty days after it has been stated, the policy shall pass to the trustee as assets. Of course the trustee may have no in- terest in the bankrupt's life. To den}- the right to sell except to persons having such an interest is to diminish appreciably the value of the contract in the owner's hands. The collateral difficulty that rose from regarding life insurance as a con- tract of indemnit}' only (Godsall z'. Boldero, 9 East 72), long has disappeared. Insurance Co. z\ Bailey. 13 Wall. 616, 20 L. Ed. 501. And cases in which a person having an interest lends himself to one without any, as a cloak to what is, in its inception, a wager, have no similarity to those where an honest contract is sold in good faith." Grigsby v. R:T?.=ell, 222 U S. 149. 56 L. Ed. 133, 32 S. Ct. 58. "Coming to the authorities in this court, it is true that there are intimations in favor of the result come to b}- the cir- cuit court of appeals. But the case in which the strongest of them occur was one of the tj^pe just referred to, the policy having been taken out for the pur- pose of allowing a stranger association to pay the preiniums and receive the greater part of the benefit, and having been as- signed to it at once. Warnock r. Davis. 104 U. S. 775. 26 L. Ed. 924. On the other hand, it has been decided that a valid pol- icy is not avoided by the cessation of the insurable interest, even as against the in- surer, unless so provided by the policj^ it- self. Connecticut ^lut. Life Ins. Co. z\ Schaefer, 94 U. S. 457, 24 L. Ed. 251. And expressions more or less in favor of the doctrine that we adopt are to be found also in ^Etna I. (a) Power to Regulate Defined, 703. 266-70a. Supplemental contract. — Bowers, etc.. Dredging Co. v. United States, 211 U. S. 176. 5.3 L. Ed. 136, 29 S. Ct. 77. 12 U S Enc— 4-t 689 INTERSTATE, ETC., COMMERCE. Vol. VII. (b) Constitutional Limitations, 703. (c) Power over Interstate and Foreign Commerce Compared, 705. (j) Means Employed, 705. ff. By Making Principal Liable for Acts of Agents 705. (2) Exclusiveness of Power, 705. (a) Effect of Grant of Power to Congress Accom- panied by Exercise of Power, 705. (b) Effect of Grant of Power to Congress Anterior to Exercise of Power by Congress, 705. bb. Decisions Holding Grant Not in All Respects Exclusive, 705. cc. Decisions Holding Power Exclusive — Better Rule, 706. (aa) General Statement of Rule, 706. (bb) Validity of State Legislation Merely Af- fecting Commerce, 706. aaa. In General, 706. (3) Subjects of Regulation, 706. (a) In General, 706. aa. All Commercial Intercourse, 706. bb. Subjects of Commerce and Persons Engaged Therein, 706. cc. Instrumentalities, 706. (b) Regulation of Particular Matters, 707. bb. Corporations. 707. dd. Railroads, 707. (aa) In General, 707. (cc) Equal Accommodations to Passengers, 707. (cc^^) Safety of Persons and Property, 707. aaa. In General, 707. bbb. Rolling Stock and Equipment, 707. (aaa) In General, 707. (bbb) Safety Appliance Act, 708. ccc. Train Crew ; Number and Qualifica- tions, 710. ddd. Hours of Labor, 711. eee. Employers' Liability Acts, 714. (dd) Protection of Lives and Limbs of Em- ployees, 719. (ee) Qualifications, Duties and Liabilities of Emplovees, 719. (ff) Liability of Carrier, 719. hh. Exclusion of Imports — Establishment of Stan- dards, 721. ii. Fisheries, 721. jj. Immigration, 721. nn. Monopolies and Trusts, 722. 00. Private Contracts, 722.- ss. Wharves, 72Z. tt. Navigation and Navigable Waters, 723. (bb) Control of Navigable Waters of United States, 723. aaa. In General, 723. 690 Vol. VII. INTERSTATE, ETC., COMMERCE. ccc. Improvement of Navigability of Waters, 723. (aaa) In General, 72Z. (bbb) Prevention or Removal of Ob- structions, 723. (cc) Regulation of Particular Matters, 723. iii. Liability for Marine Torts, 722). uu. Houses of Ill-Fame, 723. 2. Power of States, 722). a. In General, 723. (1) Right to Engage in Not Derived from the State, 723. (2) Mere Desire to Use Property in Commerce Not Suf- ficient, 724. (3) Power of State Divided into Three Classes, 724. (4) No Distinction between Regulations Based upon the Common Law and Those Based upon Statutes, 724. b. Where Congress Has Acted, 724. (1) In General, 724. (2) Conflicting State and Federal Legislation. 724. (3) Where Congress Has Not Occupied the Full Sphere of Its Jurisdiction, 725. c. Where Congress Has Not Acted, 726. (1) In General, 726. (3) Subjects of Local Concern and Local Police Regula- tions, 726. (b) Particular Matters Over Which State Authority May Be Exerted, 726. (c) Police Regulations, 726. aa. Police Power of States Not Surrendered by Grant of Commercial Power to Congress, 726. bb. General Nature of Police Power, 726. cc. Police Power as Limited by Commercial Power of Congress, 726. d. State Statutes Afi^ecting Interstate and Foreign Commerce, 727. (2) Construction of Statutes, 727. (a) In General, 727. (3) Discrimination, 727. (8) Excluding Imports and Preventing Exports, 727. (a) Exclusion of Imports, 727. aa. Lawful Articles of Commerce, 727. fb) Prohibiting or Impeding Exportation, 728. (11) Fish and Oysters, 728. (12) Foreign Corporations, 728. (a) General Power of State, 728. (i) Taxation and Licenses, 729. aa. In General, 729. (13) Game, 732. (15) Inspection Laws, 722. (17) Intoxicating Liquors. 722. (a) In General, 722. (c) While Property Is in Transit, 722. aa. In General. 722. bb. When Property Is in Transit, 722. (d) After Property Has Reached Its Destination, 733. 691 INTERSTATE, ETC., COMMERCE. Vol. VII. bb. Since Passage of Wilson Act, 7Z2). (aa) The Act, 72>Z. ccc. Object and Purpose, 733. (e) Power of State to Tax or License, 734. aa. In General,, 734. (19) Navigation and Navigable Waters, 734. (a) In General, 734. (b) W'hat Constitutes Navigable Waters, 734. (c) Regulation of Navigation and Navigable \\^aters, 734. bb. Navigable Waters of United States, 734. (aa) In General, 734. (bb) In Absence of Congressional Action, 735. (ee) Particular Regulation Considered, 7?)h. eee. Marine Torts, 72)S. (21) Pilot Regulations, 735. (f) Pilotage at Ports Situated upon Boundary of Two States, 735. (22) Quarantine Laws, 7ZS. (23) Railroads and Other Carriers, 735. (a) In General, 7Z'^. (b) Purchase or Consolidation of Competing Lines, 736. (c) Regulation of Charges for Transportation, 736. aa. In General, 736. (e) Regulations to Prevent Injuries by Carriers, 72)7. cc. Regulation with Regard to Speed of Trains and Other Precautions, 7Z7. (i) Requiring Trains to Stop at Certain Stations, 7?)7. {']) Regulations with Respect to Liability of Carriers, 738. bb. Liability beyond Carrier's Own Lines, 738. cc. Penalizing Delay in Settlement of Claims, 738. (k) Rights and Privileges of Passengers, 738. bb. Equal, but Separate, Accommodations for White and Colored Passengers, 738. (1) Facilities for Transportation, 738. (n) Regulating Relation of INIaster and Servant, 739. (24) Sale of Goods, 740. (25) Telegraph Companies, 740. (a) In General, 740. (b) Buildings, Poles and \\'ires, 740. (c) Transmission and Delivery of Messages, 740. aa. In General, 740. (e) Taxation, 741. (f) Charge for Poles Placed in Streets. 741. (g) Fees to Defray Expense of Local Inspection and Supervision, 741. (29) State Pure Food Laws. 741. (30) Natural Gas, 742. (31) Diverting Waters of Stream into Another State. 742. (32) Laws for Enforcement of Debts; Interference through Judicial Process, 743. (33) Brokerage and Commission Business; Dealing in Fu- tures, etc., 743. 692 Vol. VII. INTERSTATE, ETC., COMMERCE. (34) Disorderly Houses, 743. e. Remedy against Illegal State Interference, .^43. B. Internal or Intrastate Commerce, 744. 1. Power of Congress, 744. a. In General, 744. 2. Power of States, 744. a. In General, 744. b. Regulation of Particular Matters, 744. C. Commerce with Indian Tribes, 745. 1. Power of Congress, 745. b. Nature and Extent of Power, 745. (1) In General, 745. (2) Particular Regulations. 745. fa) Liquor Traffic, 745. D. Commerce in Territories and Places under Exclusive Federal Control, 748. in. state Taxation, 749. B. Power to Tax Interstate and Foreign Commerce, 749. 1. In General, 749. 2. What Constitutes Taxation of Interstate and Foreign Commerce, 749. a. In General, 749. b. Occupation and Business Tax, 749. (1) In General, 749. (2) License Tax for Privilege of Carrying on Interstate Commerce, 749. (a) Doctrine Stated, 749. (b) Application of Doctrine, 749. aa. Carriers Doing Interstate Business, 749.' cc. Solicitors for Orders for Foreign Prodticts, 750. faa) In General — Business Confined to Inter- state Transactions, 750. (cc) Persons Soliciting Orders for Intoxi- cating Liquors. 750. dd. Money and Exchange Brokers, 7?0. ddy2. Bankers Engaged in Forwarding Deposits to Other States and Countries, 750. ff. Agency Engaged in Interstate Commerce, 750. gg. Peddlers, etc., 751. e. Taxation of Property Engaged in Commerce, 751. (1) In General, 751. (a) Property within the State Limits, 751. aa. General Rules, 751. (b) Property Outside of State Limits, 752. (2) Corporate Franchise, 752. (3) Personal Property of Foreign Corporations — Rolling Stock, 752. (3^^) Tax on Capital Stock, 752. (4) Privilege Tax Based upon \'alue of Propertv. 752. (5) The Unit Rule, 752. f. Gross Receipts. 752. j. Taxation of Subjects of Commerce, 753. (2) Imports and Exports, 753. 693 INTERSTATE, ETC., COMMERCE. Vol. VII. (a) Exports, 7dZ. (b) Imports, 754. aa. Property in Transit, 754. bb. Taxation upon Arrival at Destination, 754. (aa) Property Retaining Distinctive Charac- ' ter as Imports, 754. bbb. Original Package Rule, 754. (aaa) In General, 754. (bb) Property Commingled with General Mass of Property, 755. aaa. In General, 755. bbb. Discrimination, 755. (aaa) In General, 755. (cc) Exercise of Police Power — Intoxicat- ing Liquors, 7SS. IV. Interstate Commerce Act, 7hi. A. Nature, Purpose, Constitutionality and Construction, 755. 1. Nature and Purpose, 755. 2. Constitutionality, 756. B. Carriers Subject to Act, 756. 1. In General, 756. 3. Terms "Railroad" and "Transportation'" Defined, 758. C. Just and Reasonable Charges, 758. 1. In General, 758. 3. Power to Prescribe Rates, 758. 4. Determination of Question of Reasonableness and Justice, 759. c. Interests to Be Considered, 759. e. Permanent Improvements and" Equipments, 761. 5. Terminal Charges, 761. D. Special Rates, Rebates, etc., Prohibited, 761. 1. Unjust Discriminations in Rates Generally, 761. a^. Constitutionality of Statute, 761. (1) General Power of Congress, 761. (2) jNIaking Principal Liable for Acts of His Agent, 761. (3) Who May Raise Constitutional Objections, 7'62. (4) Separability of- Statute, 762. a^. Purpose, Construction, Operation and Effect of Statute, 762. (1) General Purpose of Statute, 762. (2) Paramount in Its Operation, 762. (3) What Constitutes Foreign or Interstate Shipment within Meaning of Act, 763. (4) Embraces All Manner of Carriage, Gratuitous or Other- wise, 763. (a) Generally, 763. (b) Free Transportation by Express Companies, 763. (5) Special Contracts Waiving, IModifying, or Annulling Provisions of Act, 764. (6) Existing Contracts Lawful When Made, 764. (7) Character of Compensation; Payment Only in ^Monev, 765. (8) Knowledge, Intent, Good Faith, etc., 766. (9) Secret or Fraudulent Device or Contrivance, 766. (10) Posting of Rates Not Necessary Element of Offense, 767. 694 Vol. VIl. INTERSTATE, ETC, COMMERCE. (11) Liability of Carrier Participating in Joint or Through Rate, 767. (12) When Offense Complete, "768. (13) Amendment and Repeal of Act, 769. b. Like and Contemporaneous Service under Similar Condi- tions, 769. (2) Competition, 769. (3) Discrimination Based on Ownership; Aggregation of Shipments by Forwarding ^Agents, etc., 770. (4) Discrimination as between Dift'erent Commodities, 77L (5) Discrimination in Rates Based upon Difference in Facilities, 771. (a) Discrimination in Favor of Carriers by Reason of Their Superior Facilities, 77L (b) Allovv-ance for Privately Owned Facilities, 771. aa. In General, 771. bb. Elevator Service in Connection with Shipment of Grain, 772. 3. Party-Rate Tickets and Reduced Fares, 774. E. Undue Preference and Equal Facilities, 774. 1. L'ndue Preferences or Advantages Prohibited, 774. c. Dissimilarity of Circumstances and Conditions, 774. (3) Competition, 774. (a) In General, 774. (b) As to Long and Short Hauls, 774. (4) As between Commodities and Localities, 774. 2. Equal Facilities, 775. a. For Interchange of Traffic, 775. b. Distribution of Cars, 775. (1) In General, 775. (2) As between Carriers and Shippers, 776. (a) In General, 776. (b) Disassociation of Carrier from Interest or Owner- ship in Commodity Carried, 776. aa. Power of Congress ; Constitutionality of Act, 776. bb. Common Purpose of the Act, 777. cc. "Railroad" within Meaning of Act, 778. dd. Character of Interest or Ownership Forbid- den, 778. c. Lease or IMonopoly of Wharfage Facilities to Favored Ship- per, 779. d. Spur Tracks. Switch Connections, etc., 780. F. Long and Short Hauls, 780. H. Printed Schedules of Rates to Be Posted — Notice of Advance and Reduction — Joint Rate Tariffs, 780. L Establishing, Publishing and Filing Schedules of Rates, Fares and Charges, 780. a. Duty to Establish and Publish — Terms of Statute, 780. c. Contents of Schedules, 781. d. Manner of Publication, 781. 3. Effect of Variance from Schedule Rates, 781. a. In General. 781. 4. Joint Tariffs of Rates, 782. J. Free Carriage or Reduced Rates, 783. 695 INTERSTATE, ETC., COMMERCE. Vol. VII. K. The Interstate Commerce Commission and the Enforcement of the Act, 7'83. 2. Enforcement of Act and Consequences of Violation, 783. a. General Nature and Powers of Commission, 783. (1) An Administrative Board, 783. b. Scope of Commission and Prosecution of Proceedings, 783. (1) Scope of Duties and Powers in General, 783. (2) Power to Investigate and Require Information, 783. (3) Complaint or Suit by Persons Damaged, 783. (c) Suit or Action, 7S3. 34aa. Parties, 783. ^/^aa. Conditions Precedent to Right to Invoke Aid of Courts, 783. aa. Jurisdiction, 786. CO. Action to Recover Unreasonable Charges, 786. (4) Proceedings on Commission's Own Motion, 786. (a) Power Generally, 786. (a^) Power to Investigate and Require Information, 7'86. aa. Generally with Respect to Attendance of Wit- nesses and Production of Evidence, 786. bb. Power to Prescribe System of Accounting, to Call for Reports, etc., 787. cc. Presumption and Burden of Proof, 788. dd. Admissibility of Evidence, 788. ee. Self-Incriminating Disclosures, 7^8. (5) Notice and Enforcement of Findings, 789. (6) Judicial Review of Findings and Orders of Commis- sion, 789. (a) Generally, 789. (b) Constitution and Powers of the Commerce Court, 792. aa. General Purpose and Intent of Act Creating Court, 792. bb. Jurisdiction of Court in General, 792. cc. Powers Conferred by § 207, Subdivision 2, 793. dd. Review of 0|uestion of Jurisdiction, 794. ee. Temporary Restraining Orders, Preliminary and Perpetual Injunctions, 795. ff. Scope of Review, 797. gg. Appeal to Supreme Court of the United States, 797. (7) Criminal Prosecutions, 798. c. Attendance of Witnesses and Production of Evidence, 800. d. Nature of Inquiry and Considerations Involved, 800. e. Parties to Proceedings, 800. f. Weight and Conclusiveness of Findings of Commission, 800. Pure Food and Drugs Act, 800. A. General Purpose and Intent of Act, 800. B. Definitions and Scope of Act, 800. C. Enforcement of Act, 801. 1. Proceedings in Rem, 801. a. To What Shipments Applicable, 801. 696 Vol. VII. INTERSTATE, ETC., COMMERCE. 281-283 b. When Shipment Becomes Subject to Seizure; When No Longer Subject to Seizure, 801. c. Costs, 801. 2. Criminal Prosecutions, 802. a. Persons Liable to Prosecution, 802. b. Preliminary Analysis, Notice and Hearing; Duty to Prose- cute ; Independent Prosecutions, 802. CROSS REFERENCES. See the title Interstate and Foreign Commerce, vol. 7, p. 269, and refer- ences there given. " In addition, see ante, Animals, p. 27; Appeal and Error, p. 34; Bridges, p. 211; Carriers, p. 216; Constitutional Law, p. 264; Corporations, p. 381; Due Process of Law^, p. 475; Foreign Corporations, p. 584; Game and Game Lav^s, p. 605; Health, p. 617; Injunctions, p. 657; Inspection Laws, p. 670; Insurance, p. 674; post, Intoxicating Liquors; Monopolies anl Corporate Trusts; Navigable Waters; Pilots; Police Power; Railroads; Revenue Laws; Ships and Shipping; Streets and Highways; Taxation; Telegraphs and Telephones. L What Constitutes. A. Interstate and Foreign Commerce — 1. Definitions and Nature — a. Couiinercc Defined Generally. — See note 1. b. Interstate and Foreign Commerce Defined. — See notes 2, 11. 281-1. Commerce defined generally. — The term "commerce" comprehends more than the mere exchange of goods. It embraces commercial intercourse in all its branches, including transportation of passengers and property by common car- riers, whether carried on by water or by land. Second Employers' Liability Cases. 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. 281-2. Interstate commerce defined — Commerce affecting more than one state. — Interstate commerce must be such as takes place between states, as differen- tiated from commerce wholly within a state. It must have reference to inter- state trade or dealing; and if the regula- tion is not such, and comprehends only commerce which is internal, the state may legislate concerning it. In each case the recurring question is, on which side of the line does the commerce under inves- tigation fall? Ware v. Mobile County, 209 U. S. 405, 52 L. Ed. 855, 28 S. Ct. 526. The phrase "among the several states" marks the distinction, for the purpose of governmental regulation, between com- merce which concerns two or more states and commerce which is confined to a single state and does not affect _ other states, the power to regulate the former being conferred upon congress and the regulation of the latter remaining with the states severally. Second Employers' Lia- bility Cases. 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. "It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient and is certainly unnecessary. Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one * * *. The genius and char- acter of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to in- terfere for the purpose of executing some of the general powers of the government." The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 307, 28 S. Ct. 141. Practical and not technical. — "Com- merce among the states is not a technical legal conception, but a practical one, drawn from the course of business.'' Sav- age V. Jones. 225 U. S. 501, 56 L. Ed. 1182, 1189, 32 S. Ct. 715; Swift & Co. v. United States, 196 U. S. 375, 398, 49 L. Ed. 518, 25 S. Ct. 276; Rearick v. Pennsylvania, 203 U. S. 507, 512, 51 L. Ed. 295, 27 S. Ct. 159. 283-11. Comprehends traffic, intercourse, trade, navigation, etc. — The term "com- merce" comprehends more than the mere exchange of goods. It embraces commer- cial intercourse in all its branches, in- cluding transportation of passengers and 697 285-291 INTERSTATE, ETC., COMMERCE. Vol. YU. 2. Subjects — b. Lazvful Subjects of Owiiersliip and Property. — See note 25. c. Particular Articles — (2) Intoxicating Liquors. — See note 28. (6) Waters of Flozving Stream. — A riparian owner can not enlarge his other- wise limited and qualified right to use the waters of the stream by his desire to divert them into another state for use therein ; and it is competent for the state to prohibit such diversion notwithstanding the fact that such owner has con- tracted to dispose of the water in such other state for use or power therein.^i^ (7) Natural Gas and Oil. — Natural gas, when reduced to possession, is a commodity which belongs to the owner of the land, and may be the subject of both intrastate and interstate commerce; and a state law which prohibits the construction of pipe lines for natural gas, or the transportation of the gas by such lines except by domestic corporations and only between points within the state, with a strict prohibition against transporting, selling or in anywise furnish- ing gas for use beyond the limits of the state, unconstitutionally interferes with interstate commerce and the^ right to engage therein, and can not be justified as an exercise of the police power of the state to conserve its natural resources. ^^'' 3. Transactions Constituting — a. Transportation of Freight and Passen- gers. — See ante, "Interstate and Foreign Commerce Defined," I, A, 1, b. d. Purchase and Sale of Goods. — See notes 60, 67. property by common carriers, whether carried on by water or by land. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. Commerce among the several states comprehends traffic, intercourse, trade, navigation, communication, the transit of persons, and the transmission of mes- sages by telegraph, indeed, every species of commercial intercourse among the sev- eral states, but not that commerce "com- pletely internal, which is carried on be- tween man and man, in a state, or between different parts of the same state, and which does not extend to or affect other states." Adair v. United States, 208 U. S. 161, 52 L. Ed. 436, 443, 28 S. Ct. 277. Judge Sanborn, in Butler Bros. Shoe Co. V. United States Rubber Co., 84 C. C. A. 167, 183, 156 Fed. 1, 17, that "all inter- state commerce is not sales of goods. Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotia- tion, contract, trade, and dealing between citizens of different states, which contem- plates and causes such importation, whether it be of goods, persons, or in- formation, is a transaction of interstate commerce." International Textbook Co. V. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481, followed in International Text- book Co. V. Peterson, 218 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225. Whether gratuitous or otherwise. — The power of congress over interstate trans- portation embraces all manner of carriage whether gratuitous or otherwise. Ameri- can Exp. Co. V. United States, 212 U. S. 522, 53 L. Ed. 635, 29 S. Ct. 315; United States V. New York, etc., R. Co., 212 U. S. 509, 53 L. Ed. 629, 29 S. Ct. 313. 285-25. Power to determine what shall be subjects of commerce. — See post, "Ex- clusion of Imports — Establishment of Standards," II, A, 1, b, (3), (b), hh. 285-28. Intoxicating liquors. — Liquor, however obnoxious and hurtful it may be in the judgment of many, is a recognized article of commerce. Adams Exp. Co. v. Commonwealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633; Thurlow V. Massa- chusetts, 5 How. 504, 577, 12 L. Ed. 258; Leisy V. Hardin, 135 U. S. 100, 110, 34 L. Ed. 128, 10 S. Ct. 681; Louisville, etc., R. Co. V. Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. 285-31a. Waters of flowing stream. — Hudson County, etc., Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. 285-31b. Natural gas and oil. — West v. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564. 291-60. Purchase and sale of goods. — Where the complainant was engaged in dealing with purchasers in another state, and his product was manufactured in Minnesota and was, in pursuance of his contracts of sale, to be delivered to car- riers for transportation to the purchasers in Indiana, this was interstate commerce, in the freedom of which from any uncon- stitutional burden the complainant had a direct interest even though his sales were made at Minneapolis, the goods "to be delivered free on board of cars" at that point, "and delivered to purchasers and consumers within the state of Indiana in the original, unbroken packages, freight being paid by the consumers and pur- chasers." Savage v. Jones, 225 U. S. 501. 520, 56 L. Ed. 1182, 32 S. Ct. 715, followed 698 Vol. VII. INTERSTATE, ETC., COMMERCE. 291-295 h. Grain Warehouses and Elevators. — The long-mooted question as to whether elevation was such a part of transportation as to bring it within the jurisdiction of the interstate commerce commission was answered bv the Act of June 29, 1906 (34 Stat, at L. 584, 590, chap. 3591, U. S. Comp. Stat. Supp. 1909. p'. 1150), in which congress declared that the term "'transportation' shall include * * * all * * * facilities of shipment, =i= * * irrespective of ownership, * * * and all services in connection with the * * * elevation and transfer in transit * * * and handling of property transported." Carriers were re- quired "to provide and furnish such transportation upon reasonable request therefor.'"^*''' The act recognized that the shipper himself might own the eleva- tor or other facility included within the definition of transportation. For § 4 (34 Stat, at L. 590, chap. 3591, U. S. Comp. Stat. Supp. 1909, p. 1159) provides that "if the owner * * -^ renders any service connected with such transporta- tion, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable,"' the commission being authorized to determine wdiat is reasonable.'''^'' j. Telegraphic Comniunicaiions. — See note 90. in Standard Stock Food Co. v. Wright, 225 U. S. 540. 56 L. Ed. 1197, 32 S. Ct. 784. It clearly appears from the bill that the complainant was engaged in dealing with purchasers in another state. His product manufactured in Minnesota was, in pur- suance of his contracts of sale, to be de- livered to carriers for transportation to the purchasers in Indiana. This was in- terstate commerce, in the freedom of which from any unconstitutional burden the complainant had a direct interest. The protection accorded to this com- merce by the federal constitution ex- tended to the sale by the receiver of goods in the original packages. Savage V. Jones, 225 U. S. 501, 56 L. Ed. 1182, 1189, 32 S. Ct. 715; Leisy v. Hardin, 135 U. S. 100, 34 L. Ed. 128, 10 S. Ct. 681; In re Rahrer, 140 U. S. 545, 559, 560, 35 L. Ed. 572, 11 S. Ct. 865. 291-67. Right to sell through agent- Local dealer in automobiles held not to be agent for foreign manufacturer. — A state does not tax interstate transactions by imposing a tax upon a doinestic cor- poration selling within a designated ter- ritory in the state automobiles built by a foreign corporation under an arrangement by which the latter agreed to build for and sell to the former, for cash, at a spec- ified less than list price, deliveries to be made as soon as practicable after orders should be received, the domestic corpora- tion customarily making payment through drafts attached to the bills of lading, and there being nothing connecting the ulti- mate buyer with the manufacturer other than a warranty direct from manufacturer to buyer, and such buyer's agreement "to pay the list price f. o. b. factory," since such sales are not interstate ones; the relation of principal and agent between the foreign and domestic corporations not existing so far as the buyer is concerned. Banker Bros. Co. v. Pennsylvania, 222 U. S. 210, 56 L. Ed. 168, 32 S. Ct. 38, affirm- ing judgment. Commonwealth v. Banker Bros. Co., 38 Pa. Super. Ct. 101. 293-76a. Grain warehouses and eleva- tors. — Union Pac. R. Co. v. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 S. Ct. 39; Interstate Commerce Comm. v. Dififen- baugh, 222 U. S. 42, 56 L. Ed. 83, 32 S. Ct. 22. 293-76b. Elevators owned by ship- pers.— Union Pac. R. Co. V. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 S. Ct. 39. 295-90. Telegraphic communications. — That companies engaged in the telegraph business, whose lines extend from one state to another, are engaged in interstate commerce, and that messages passing from, one state to another constitute such commerce, is indisputable. Western Union Tel. Co. v. Crovo, 220 U. S. 364. 55 L. Ed. 498, 31 S. Ct. 399: Western Union Tel. Co. v. Commercial Milling Co., 218 U. S. 406, 54 L. Ed. 1088, 31 S. Ct. 59; Telegraph Co. v. Texas, 105 U. S. 460, 464, 26 L. Ed. 1067; Western Union Tel. Co. V. Pendleton, 122 U. S. 347, 356, 30 L. Ed. 1187, 7 S. Ct. 1126. Such companies and such messages come, therefore, under the regulating power of congress, and where a statute, as applied in the state courts, is to be construed as a regulation of commerce between the states, it is in excess of the power of the state. Western Union Tel. Co. V. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 S. Ct. 399; Telegraph Co. v. Texas. 105 U. S. 460, 26 L. Ed. 1067; Western Union Tel. Co". V. Pendleton, 122 U. S. 347, 30 L. Ed. 1187, 7 S. Ct. 1126; Western Union Tel. Co. V. James, 162 U. S. 650, 40 L. Ed. 1105, 16 S. Ct. 934; Western Union Tel. Co. V. Commercial Milling Co., 218 U. S. 406, 416, 54 L. Ed. 1088, 31 S. Ct. 59. 699 295 INTERSTATE, ETC., COMMERCE. Vol. VII. k. Banker Fonvarding Deposits to Foreign Countries. — A private banker whose business consists chiefly in receiving deposits in small sums from time to time until they reach an amount sufficient to be sent to other states and foreign countries is not so exclusively engaged in foreign and interstate commerce as to exempt him from the power of the state to impose license and occupation taxes.^^^ 1. Contracts Incidentally Affecting Commerce ; Brokerage and Commission Contracts. — Contracts between citizens of different states are not the subjects of interstate commerce, simply because they are negotiated between citizens of different states, or by the agent of a company in another state, where the con- tract itself is to be completed and carried out wholly within the borders of a state, although such contracts incidentally affect interstate trade.'""' Brokerage and Commission; Orders for Future Delivery. — The business of taking orders on commission for the purchase and sale of grain and cotton for future delivery, and transmitting them to other states, is not interstate commerce, so as to be exempt from state taxation, where, in those cases in which contracts for purchases for future delivery result in an actual delivery, the property is bought in the state to which the orders are transmitted, and there held for the purchaser, and in those cases in which there is a delivery upon a contract of sale made by the broker, the seller is at liberty to acquire the property in the market where delivery is required or elsewhere. ^'^'^ 295-90a. Banker forwarding deposits to foreign countries. — Engel v. O'Malley, 219 U. S. 128, 55 L. Ed. 128, 31 S. Ct. 191. Interstate commerce is not unconstitu- tionally regulated by the requirement of Laws N. Y. 1910, c. 348. that a license from the comptroller be obtained by in- dividuals or partnerships desiring to en- gage in the business of private banking, as applied to one whose business chiefly consists in receiving deposits in very small sums from time to time until they reach an amount sufficient to be sent to other states and foreign countries. Engel V. O'Malley, 219 U. S. 128, 55 L. Ed. 128, 31 S. Ct. 191, affirming decree (C. C. 1910), 182 F. 365. 295-90b. Contracts incidentally affect- ing commerce. — Ware v. Mobile County, 209 U. S. 405, 411, 52 L. Ed. 855, 28 S. Ct. 526. 295-90C. Brokerage and commission — Orders for future delivery. — Ware r. Mo- bile County, 209 U. S. 405, 52 L. Ed. 855, 28 S. Ct. 526. affirming Ware v. Mobile County, 146 Ala. 163, 41 So. 163. The appellants are brokers who take orders and transmit them to other states for the purchase and sale of grain or cot- ton upon speculation. They are, in no just sense, common carriers of messages, as are the telegraph companies. Eor that part of the transactions, merely specula- tive and followed by no actual delivery, it can not be fairly contended that such contracts are the subject of interstate commerce. Ware v. Mobile County, 209 U. S. 405, 412, 52 L. Ed. 855, 28 S. Ct. 526. Concerning such of the contracts for purchases for future delivery, as result in actual delivery of the grain or cotton, the stipulated facts .show that when the orders transmitted are received in the foreign state the property is bought in that state and there held for the pur- chaser. The transaction was thus closed by a contract completed and executed in the foreign state, although the orders were received from another state. When the delivery was upon a contract of sale made by the broker, the seller was at liberty to acquire the cotton in the mar- ket where the delivery was required or elsewhere. He did not contract to ship it from one state to the place of delivery in another state. And though it is stipu- lated that shipments were made from Alabama to the foreign state in some in- stances, that was not because of any con- tractual obligation so to do. In neither class of contracts, for sale or purchase, was there necessarily any movement of commodities in interstate traffic, because of the contracts made by the brokers. These contracts are not, therefore, the subjects of interstate comm.erce. any more than in the insurance cases, where the policies are ordered and delivered in an- other state than that of the residence and office of the company. The delivery, when one was made, was not because of anv contract obliging an interstate shipment, and the fact that the purchaser might thereafter transmit the subject matter of purchase by means of interstate carriage did not make the contracts as made and executed the subjects of inter- state commerce. Ware t'. Mobile County, 209 U. S. 405, 413, 52 L. Ed. 855, 28 S. Ct. 526. Requiring record or memorandum of transaction — Where articles in actual course of transportation. — Interstate com- merce is not unconstitutionally regulated roo Vol. MI. IXTBRSTATE,, ETC., COMMERCE. 295 m. Counnnnication through the Mails: Correspondence Schools. — If inter- course between persons in different states by means of telegraphic messages conveying intelligence or information is commerce among the states, which no state may directly burden or unnecessarily encumber, it can not be doubted that intercourse or communication between persons in different states by means of correspondence through the mails is commerce among the states within the mean- ing of the constitution, especially where such intercourse and communication really relate to matters of regular, continuous business, and to the making of contracts and transportation of books, papers, etc., appertaining to such busi- ness.^o"^ Correspondence Schools Doing Interstate Business. — Commerce is con- ducted among the states, within the meaning of the federal constitution, by a corporation engaged in imparting instruction by correspondence, whose business involves the solicitation of students in other states by local agents, who are also to collect and forward to the home office the tuition fees, and the systematic in- tercourse between the corporation and its scholars and agents, wherever situ- ated, and the transportation of the needful books, apparatus, and papers. ^"^® 4. Protection of Commerce Clause — a. When Protection Attaches. — A man can not acquire a right to property protected by the commerce clause of the federal constitution merely by reason of his desire to use it in commerce among the states. Neither can he enlarge his otherwise limited and qualified right to the same end.^^a by Act }^larch 8, 190T (Acts Mo. 1907, p. 392), under which the keeping of a place Avhere corporate stocks and bonds, and grains, provisions, and other commodities are bought and sold, but not paid for and delivered at the time, is made criminal unless a complete record rif the transac- tion, including a minute of the time of de- livery, is made in a book kept for the pur- pose, and the purchaser is given a memo- randum of the sale, properly stamped, although the grains, provisions, and other commodities sold may be, at the time of sale, in the course of transportation as articles of interstate commerce. Brodnax z. Missouri, 219 U. S. 285, 5.5 L. Ed. 219, 31 S. Ct. 238, affirming judgment in State V. Brodnax (1910), 128 S. W. 177, 228 Mo. 25. 295-90d. Communication through mails. — International Textl^ook Co. 7'. Pigg, 217 U. S. 91, 5-1 L. Ed. 678, 30 S. Ct. 481; In- ternational Textbook Co. v. Peterson. 218 U. S. mi. 54 L. Ed. 1201, 31 S. Ct. 225. 295-90e. Correspondence schools doing interstate business. — International Text- book Co. z: Pigg. 217 U. S. 91, 54 L. Ed. G78, 30 S. Ct. 481. followed in Interna- tional Textbook Co. z: Peterson, 218 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225. "The business in which the Interna- tional Textbook Company is engaged is of a somewhat exceptional character, but, in our judgment, it was, in its essential characteristics, commerce among the states within the meaning of the constitu- tion of the United States. It involved, already suggested, regular and practically continuous intercourse between the Textbook Company, located in Pennsyl- vania, and its scholars and agents in Kan- sas and other states. That intercourse was conducted by means of correspon- dence through the mails with such agents and scholars. While this mode of im- parting and acquiring an education may not be such as is commonly adopted in this country, it is a lawful mode to ac- complish the valuable purpose the parties have in view. More than that; this mode, looking at the contracts between the Textbook Company and its scholars, in- volved the transportation from the state where the school is located to the state in which the scholar resides, of books, apparatus, and papers, useful or necessary in the particular course of study the scholar is pursuing, and in respect of which he is entitled from time to time, by virtue of his contract, to information and direction. Intercourse of that kind, be- tween parties in different states, particu- larly when it is in execution of a valid contract between them, is as much inter- course in the constitutional sense, as in- tercourse by means of the telegraph, 'a new species of commerce,' to use the words of this court jn Pensacola Tel. Co. V. Western Union Tel. Co., 96 U. S. 1, 9, 24 L. Ed. 708, 710." International Text- book Co. V. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481, followed in Interna- tional Textbook Co. v. Peterson. 218 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225. 295-92a. When protection attaches- Mere intent or desire to use property in commerce not sufficient. — Hudson County, etc., Co. z: McCarter. 209 U. S. 349. 52 L. Ed. 828, 28 S. Ct. 529. See, also, Geer v. 701 295-297 INTERSTATE, ETC., COMMERCE. Vol. VII. When Property Begins to Move — Through Billing Test.— In determining whether a shipment is or is not an interstate shipment, the test of through bilHng is not necessarily conclusive. That is to say, the fact that the shipment was sent from a point within the state to the state line on one bill of lading there to be reshipped upon another bill of lading is not conclusive of the fact that it is not an interstate or foreign shipment."-^-" b. When Protection Ceases — (Ij In General. — Until the transportation is com- pleted by delivery to the consignee, the property does not become subject to state regulation restraining its sale or disposition. ^*^^ Connecticut, IGl U. S. 519, 40 L. Ed. 793, 16 S. Ct. 600. Same — Desire or intent to divert wa1;er for use in another state. — For example, it is competent for the state to prohibit the diversion of the waters of a flowing stream into another state for use therein, and the fact that riparian owner desires or has contracted to divert such water and transport it for use in another state gives him no right protected by the com- merce clause of the constitution. Hudson County, etc., Co. v. AlcCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. Same — Gas and oil. — It has been held, however, that natural gas when reduced to possession is a legitimate article of intrastate and interstate commerce, and that the state can not, while permitting its use within the state, and to that end ex- tending to domestic corporations the use of its highways for the purpose of laying pipe lines to distribute it within the state, forbid its transportation beyond state limits and deny to foreign corporations the like privilege of using the highways of the state for the purpose of laying pipe lines for transporting the gas beyond the state. West v. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564. 295-92b. When property begins to move — Through billing test. — Railroad Comm. V. Worthington, 225 U. S. 101, 56 L. Ed. 1004, 32 S. Ct. 653; Southern Pac, etc., Co. V. Interstate Commerce Comm., 219 U. S. 498, 55 L. Ed. 310, 31 S. Ct. 279. For example where a shipper bought cotton seed cakes in various points in Texas with the intent to export the same, and shipped them to himself at the port of Galveston, where they were prepared for export, it was held that such trans- portation was within, the jurisdiction of the interstate commerce commission. Southern Pac, etc., Co. v. Interstate Com- merce Comm., 219 U. S. 498, 55 L. Ed. 310, 31 S. Ct. 279. It makes no difference, therefore, that the shipments of the products were not made on through bills of lading, or whether their initial point was Galveston or some other place in Texas. They were all destined for export, and by their de- livery to the Galveston, Harrisburg & San Antonio Railway they must be considered as having been delivered to a carrier for transportation to their foreign destina- tion, the terminal company being a part of the railway for such purpose. The case, therefore, comes under Coe v. Er- rol, 116 U. S. 517, 29 L. Ed. 715, 6 S. Ct. 475, where it is said that goods are in interstate, and necessarily as well in for- eign, commerce when they have "actually started in the course of transportation to another state or been delivered to a car- rier for transportation."" Southern Pac, etc., Co. V. Interstate Commerce Comm., 219 U. S. 498, 55 L. Ed. 310, 31 S. Ct. 279. And again it was held that wdiere coal was Inlled from an Ohio coal field to Ohio ports on Lake Erie, there to be loaded upon vessels and transported to points without the state, that the whole carriage from the time it left the mines was in- terstate commerce and not within the power of the state railroad commission to regulate. Railroad Comm. z\ Worth- ington. 225 U. S. 101, 56 L. Ed. 1004, 32 S. Ct. 653. On the other hand, where corn was shipped from Hudson, South Dakota upon a bill of lading to Texarkana, Texas, and afterwards, some five days later, it was shipped upon another bill of lading from Texarkana to Goldthwaite, both being points in the state of Texas, it was held that the latter shipment was a new and independent intrastate shipment, and that it was immaterial that the shipper intended from the beginning to reship the corn from Texarkana to Goldthwaite. Gulf, etc.. R. Co. V. Texas, 204 U. S. 403, 51 L. Ed. 540. So it has been held that oil shipped from Pennsylvania and Ohio, and destined ultimately for points in Arkansas, Louisi- ana, and ^klississippi, is not property in interstate commerce, so as to be exempt from state tax or inspection laws while it is held at a distributing point main- tained by the shipper in Tennessee, at which point such oil is unloaded from tank cars into various tanks, barrels, and other receptacles, and from which it is forwarded to its final destination. Judg- ment (1906), 95 S. W. 824, 117 Tenn. 82, affirmed. General Oil Co. v. Grain, 209 U. S. 211. 52 L. Ed. 754. 28 S. Ct. 473. 297-96a. When protection of commerce ro2 Vol. VII. IXTERSTATB, ETC., COMMERCE. 298-305 Through Billing Test.— See ante. "When Protection Attaches," I, A, 4, a. Under Pure Food and Drugs Act. — As to the right of congress to pursue goods shipped in violation of the pure food and drugs act even after they have ceased to be articles of commerce, or, in other words, after the transportation has ended, see post, "Pure Food and Drugs Act," V, et seq. (2) Original Packages — (b) Right to Sell in Original Package. — See note 2. (c) Taxation.— SeQ post. "Original Package Rule," III, B. 2,'j, (2), (b), bb, (aa), bbb. B. Internal or Intrastate Commerce. — See ante. "Interstate and Foreign Commerce Dehned." I. A. 1. b; post, "Internal or Intrastate Commerce," II, B, et secj. C. Commerce with Indian Tribes. — See post, "Commerce witli Indian Tribes," II, C, et seq. II. Regulation and Control. A. Interstate and Foreign Commerce — 1. Power of Coxgress — a. In Gen- eral — (3 J Application of Conmion-Lazu Principles in Absotce of Statute. — See note 32. h. Xature and E.vtcnt of Pozi'er — (I) In General — (a) Poi. Larabee Flour Mills Co., 211 U. S. 612, 53 L. Ed. 352, 29 S. Ct. 214; Stur- ges z'. Crowinshield, 4 Wheat. 122, 4 L. Ed. 529; Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19; Willson 7'. Blackbird Creek Marsh Co., 2 Pet. 245, 251, 7 L. Ed. 412. 314-321 INTERSTATE, ETC., COMMERCE. Vol. VII. cc. Decisions Holding Pozver Exclusive — Better Rule — (aa) General State- ment of Rule. — See note 72. (bb) Validity of State Legislation Merely Affecting Commerce — aaa. In Gen- eral. — See note 7i. (3) Subjects of Regulation — (a) In General — aa. All Commercial Inter- course. — See note 90. bb. Subjects of Commerce and Persons Engaged Therein. — See post, "Rail- roads," II, A, 1, b, (3), (b), dd. cc. Instrumentalities. 314-72. Power of congress to "regulate" commerce in all respects exclusive. — It has been frequentli^ decided in the federal supreme court that the right to regulate interstate commerce is, by virtue of the federal constitution, exclusively vested in the congress of ihe United States. The states can not pass any law directly regu- lating such coinmerce. Attempts to do so have been declared unconstitutional in many instances, and the exclusive power in congress to regulate such commerce uniformly maintained. Southern R. Co. V. King, 217 U. S. 524, 54 t. Ed. 868, 30 S. Ct. 594. In Atlantic, etc., R. Co. v. Wharton, 207 U. S. 328, 334. 52 L. Ed. 230, 28 S. Ct. 121, it was declared "that anj^ exercise of state authority, in whatever form manifested, which directly regulates interstate com- merce, is repugnant to the commerce clause of the constitution." Adams Exp. Co. V. Commonwealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633. "It is not necessary to review the cases in this court which have settled beyond peradventure that the national govern- ment has exclusive authority to regulate interstate commerce under the constitu- tion of the United States; nor to do more than reaffirm the equally well settled proposition that over interstate commerce transportation rates the state has no ju- risdiction, and that an attempt to regulate such rates by the state or under its au- thority is void." Railroad Comm. 7'. Worthington, 225 U. S. 101. 56 L. Ed. 1004, 1008, 33 S. Ct. 653, citing Louisville, etc., R. Co. V. Eubank, 184 U. S. 27, 46 L. Ed. 416, 22 S. Ct. 277. 315-73. State legislation may affect com- merce without constituting regulation. — See, also, post, "Police Power as Limited by Commercial Power of Congress," II, A, 2, c, (3), (c), cc. The state, in the absence of express ac- tion by congress, may regulate many mat- ters which indirectly aflfect interstate com- merce but which are for the comfort and convenience of its citizens. Of the ex- istence of such a rule there can be no question. It is settled and illustrated by many cases. Missouri Pac. R. Co. v. Larabee Flour Mills Co., 211 U. 8. 612, 53 L. Ed. 352, 29 S. Ct. 214. The state may pass laws enforcing the rights of its citizens which affect inter- state commerce, but fall short of regulat- ing such commerce in the sense in which the constitution gives exclusive jurisdic- tion to congress. Davis v. Cleveland, etc., St. R. Co., 217 U. S. 157, 54 L. Ed. 708, 30 S. Ct. 463; Sherlock v. Ailing, 93 U. S. 99, 103, 23 L. Ed. 819; Kidd v. Pearson, 128 U. S. 1, 23, 32 L. Ed. 346, 9 S. Ct. 6; Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 48 L. Ed. 268, 24 S. Ct. 132; The Winnebago, 205 U. S. 354, 362, 51 L. Ed. 836, 27 S. Ct. 509. The rights of the states to pass laws not having the effect to regulate or di- rectly interfere with the operation of in- terstate commerce, passed in the exer- cise of the police power of the state, in the interest of the public health and safety, have been maintained by the de- cisions of the federal court. Southern R. Co. V. King. 217 U. S. 524, 54 L. Ed. 868, 30 S. Ct. 594. That a state may not pass laws directly regulating foreign or interstate commerce has frequently been held in the decisions of the federal supreme court. But, while this is true, it has also been held in re- peated instances that laws passed by the states in the exertion of their police power, not in conflict with laws of con- gress upon the same subject, and indi- rectly or remotely affecting interstate commerce, are nevertheless valid laws. Silz V. Hesterberg, 211 U. S. 31, 53 L. Ed. 75. 29 S. Ct. 10; Missouri, etc., R. Co. V. Haber. 169 U. S. 613. 42 L. Ed. 878, 18 S. Ct. 488; Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 48 L. Ed. 268, 24 S. Ct. 132; Asbell V. Kansas, 209 U. S. 251, 52 L. Ed. 778, 28 S. Ct. 4S5. 321-90. Every species of commercial in- tercourse — Gratuitous transportation. — The power of congress over interstate transportation embraces all manner of carriage whether gratuitous or otherwnse. American Exp. Co. v. United States, 212 U. S. 522, 53 L. Ed. 635, 29 S. Ct. 315; United States v. New York, etc., R. Co., 212 U. S. 508, 53 L. Ed. 629. 29 S. Ct. 313. See ante, "Interstate and Foreign Com- merce Defined," I, A, 1, b. See, also, post, "Embraces All ^Manner of Carriage, Gratuitous or Otherwise," IV, D, 1, aH, (4). ro6 Vol. VII. INTERSTATE, ETC., COMMERCE. 324-328 See post, "Railroads," II, A, 1, b, (3), (b), dd. (b) Regulation of Particular Matters — bb. Corporations. — See notg 5. dd. Railroads — (aa) In General. — See note 11. (cc) Equal Accommodations to Passengers. — Effect of Interstate Com- merce Clause in Absence of Legislation by Congress — Right of Carriers to Adopt Rules. — The interstate commerce clause of the constitution does not constrain the action of carriers, but, on the contrary, leaves them to adopt rules and regulations for the government of their business, free from any interfer- ence except by congress. Such rules and regulations, of course, must be reason- able, but whether they be such can not depend upon a passenger being state or interstate.^®* Same— Separation of White and Negro Passengers.— For example, con- gressional inaction is equivalent to a declaration that a carrier may, by its regu- lations, separate white and negro interstate passengers. ^^^ (cc>y the law, or if. when wholly or partially loaded, its drawbars are lowered niore than the maximum variation permitted, the car does not comply with the require- ments of the law. St. Louis, etc.. R. Co. V. Tavlor. 210 V. S. 281, 52 L. Ed. 1061, 1065, 28 S. Ct. 616. r09 328 INTBRSTATE, ETC., COMMERCE. Vol. VII. to use as occasion demands to raise to the legal standard drawbars lowered by the natural effect of proper use.^*' Proceedings to Enforce Statute— Nature of Action.— An action by the United States to recover from a carrier the penalty prescribed for violations of the Safety Appliance Acts of March 2, 1893, April 1, 1896, and March 2, 1903. is a civil and not a criminal action. i^" Same — Petition — Sufficiency. — A petition states no cause of action under the original Safety Appliance Act of March 2, 1893 (27 Stat, at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), making it unlawful for any railroad car- rier engaged in interstate commerce "to haul or permit to be hauled or used on its line any car used in moving interstate traffic, not equipped with couplers coupling automatically by impact," where there is no allegation that either of the cars was, at the time of the accident, or at any time, used in moving interstate traffic.!^-^ Evidence — Car Used in Moving Interstate Traffic— When. — A freight car loaded with interstate freight, and placed on a side track in the railway yard at destination, to await simple repairs to the automatic coupler, is used m moving interstate commerce wdthin the meaning of the Safety Appliance Act of March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), when a coupling with another car is thereafter attempted by the carrier's order, during the course of switching operations. ^^^ ccc. Train Crew; Number and Qualifications. — Congress, in its discretion, may take entire charge of the whole subject of the equipment of interstate cars, and establish such regulations as are necessary and proper for the protection of those engaged in interstate commerce. But it has not done so in respect to the number of employees to whom may be committed the actual management of interstate trains of any kind. It has not established any regulations on that subject, and until it does, the statutes of the state, not in their nature arbitrary, and which really relate to the rights and duties of all within the jurisdiction, must control. ^^P 328-181. Same — Use of wedges to raise the use of the car in movinq: interstate drawbars. — St. Louis, etc., R. Co. v. Tay- traffic. It did not embrace all cars used lor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. on the line of such a carrier, but only Ct. 616. such as were used in interstate commerce. 328-18m. Proceedings to enforce stat- Southern R. Co. v. United States, 222 U. ute— Nature of action.— Chicago, etc., R. S. 20, 25, 56 L. Ed. 72, 32 S. Ct. 2. The Co. V. United States, 220 U. S. 559, 55 L. act was amended March 2, 1903, 32 Stat. Ed. 582, 31 S. Ct. 612. at L. 943, chap. 976, U. S. Comp. Stat. 328-18n. Same — Petition — Sufficiency. — Supp. 1909, p. 1143, so as to include all Brinkmeier v. Missouri Pac. R. Co., 224 cars 'used on any railroad engaged in in- U. S. 268, 56 L. Ed. 758. 32 S. Ct. 412. terstate commerce,' but the amendment Same — Amended act. — "The petition, if came too late to be of any avail to the liberally construed, charged that defend- plaintiff." Brinkmeier :•. Missouri Pac. ant was a common carrier engaged in in- R. Co., 224 U. S. 268, 56 L. Ed. 758, 32 terstate commerce by railroad; that the S. Ct. 412. cars in question were not equipped with 328-18o. Evidence — Car used in mov- couplers of the prescribed type, and that ing interstate traffic, when. — Delk v. St. the plaintiff's injuries proximately re- Louis, etc., R. Co., 220 U. S. 580, 55 L. suited from the absence of such couplers; Ed. 590, 31 S. Ct. 617, reversing judgment but there was no allegation that either of in St. Louis, etc., R. Co. v. Delk, 158 Fed. tlie cars was then or at anj^ time used in 931. moving interstate traffic. The supreme 328-18p. Train crew — Number and quali- court of the state held that in the ab- fications. — Chicago, etc., R. Co. v. Ar- sence of such an allegation the petition kansas, 219 U. S. 453, 55 L. Ed. 290, 31 did not state a cause of action under the S. Ct. 275. original act. We think that ruling was Prescribing a minimum of three brake- right. The terms of that act were such men for freight trains of more than 25 that its application depended, first, upon cars, operated in the state, as is done by the carrier being engaged in interstate Laws Ark. 1907, No. 116, does not commerce by railroad, and, secnnd, upon amount to an unconsLitutional regulation 710 Vol. VII. INTERSTATE, ETC., COMMERCE. 328 ddd. Hours of Labor. — Power of Congress to Regulate, Generally. — The protection of life and property in connection with the operation of interstate trains is necessarily dependent upon the efficiency of the human agencies em- ployed in the movement of such trains ; and as the length of hours of service has a direct relation to the efficiency of such agencies, it follows that a restric- tion upon the hours of labor of employees connected with the movement of trains in interstate transportation is comprehended within the sphere of authorized legislation under the interstate commerce clause of the federal constitution. In its power suitably to provide for the safety of property and of employees and travelers, therefore, congress is not limited to the enactment of laws relating to mechanical appliances, but it is also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons em- ployed in connection with the operation of interstate trains. And in imposing restrictions having reasonable relation to this end there is no interference with the liberty of contract as guaranteed by the constitution.^^" Scope of Statutes — Intrastate Roads and Employees. — Congress has not attempted to extend its powers in this behalf to intrastate railroads and em- ployees wholly engaged in local business. ^^'" But the power of congress to limit the hours of labor of employees engaged in interstate transportation can not be defeated either by prolonging the period of service through other requirements of the carriers, or by the commanding of duties relating to interstate and intra- state operations ; and the statute without aiTecting its constitutionality, may be made to apply, as it does apply, to trains and employees which, through practi- of interstate commerce when applied to a foreign railway company engaged in such cominerce. Chicago, etc., R. Co. v. Arkansas, 219 U. S. 453, 55 L. Ed. 290. 31 S. Ct. 275. affirming judgment (1908), 111 S. W. 456, 86 Ark. 312. 328-18q. Hours of labor — Power of con- gress to regulate, generally. — Baltimore, etc., R. Co. V. Interstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878. 31 S. Ct. 621; Chicago, etc., R. Co. v. Mc- Guire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. Congress, in the exercise of its power over commerce, could enact the provisions of Act March 4. 1907, c. 2939, 34 Stat. 1415 (U. S. Comp. St. Supp. 1909, p. 1170), re- stricting the hours of labor of railwaj' employees who are connected with the movement of trains in interstate or for- eign commerce. Baltimore, etc., R. Co. V. Interstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621. 328-18r. Scope of statutes — Intrastate roads and employees. — Baltimore, etc., R. Co. V. Interstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621. Intrastate railroads and employees wholly engaged in local business were not affected by the provisions of Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (U. S. Comp. St. Supp. 1909, p. 1170), making it "unlawful for any common carrier, its officers or agents, subject to this act,_ to require or permit any employee subject to this act to be or remain on duty" for a longer period than that prescribed,- since such carriers and employees are defined in section 1 as those who are en- gaged in the transportation of passengers or property by railroad in the District of Columbia or the territories, or in inter- state or foreign commerce, although that section further defines "railroad" as in- cluding all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any car- rier operating a railroad by contract, agreement, or lease, and "employees" as meaning persons actually engaged in, or connected with, the movement of any train. Baltimore, etc., R. Co. v. Interstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621. The statute, in its scope, is materially different from the Act of June 11, 1906, chapter 3073, 34 Stat, at L. 232, U. S. Comp. Stat. Supp. 1909, p. 1148, which was before the federal supreme court in The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141. There, while the carriers described were those engaged in the commerce subject to the regulating power of congress, it appeared that if a carrier was so engaged, the act governed its relation to every employee, although the employment of the latter might have nothing whatever to do with interstate commerce. In the present stat- ute, the limiting words govern the em- ployees as well as the carriers. Baltimore, etc., R. Co. V. Interstate Commerce Comm., 221 U. S. 612. 55 L. Ed. 878, 31 S. Ct. 621. 711 328 INTERSTATE, ETC., COMMERCE. Vol. VII. cal necessity, are employed in both interstate and intrastate transportation. ^^^ Certainty and Validity of Act — Effect of Exemption in Case of Emer- gency, etc. — The words "except in case of emergency," in the proviso in the Act of March 4, 1907, § 2, making it unlawful for railway carriers engaged in transportation in the District of Columbia or the territories, or in interstate or foreign commerce, to require or permit employees engaged in such transporta- tion to be or remain on duty for a longer period than that prescribed, do not make the application of the act so uncertain as to destroy its validity, even though the proviso in § 3, limiting the eftect of the entire act, can be said to include everything which m.ay be embraced within the term "emergency. "^^^ Requirement as to Hours of Labor Construed. — By § 2 of the act it is made unlawful for conmion carriers subject to the act to permit any employee subject to the act to be on duty "for a longer period than sixteen consecutive hours," or, after that period, to be on duty again until he has had at least ten consecutive hours off duty, or eight hours after sixteen hours' work in the ag- gregate ; provided that no telegraph operator and the like shall be permitted to be "on duty for a longer period than nine hours in any twenty-four period in all towers, offices, places and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places and stations operated only during the daytime," with immaterial exceptions. Construing this proviso forbidding telegraph operators to be on duty for a longer period than nine hours in any twenty-four hour period, it is held that it does not imply that such operators shall have fifteen consecutive hours of rest in each twenty- four, but that the hours oft' or on duty may be broken up into shorter periods, and that the requirement is satisfied if the total number of hours on duty does not exceed nine in each twenty-four hour period. ^^" Exclusive or Controlling Operation of Statute. — It is elementary that the right of a state to apply its police power for the purpose of regulating intei state commerce, in a case like this, exists only from the silence of congress on the subject, and ceases when congress acts on the subject, or manifests its purpose 328-18s._ Same — Trains and employees after an interval, three and one-half more engaged in both interstate and intrastate hours in the same twenty-four, is noc transportation. — Baltimore, etc., R. Co. v. made unlawful by the provisions of the Interstate Commerce Comm.. 221 U. S. Act of March 4, 1907 (34 Stat, at L. 141.5, 612, 55 L. Ed. 878, 31 S. Ct. 621; Northern 1416, chap. 2939, U. S. Comp. Stat. Supp. Pac. R. Co. V. Atkinson, 222 U. S. 370, 56 1909, pp. 1170, 1171), §§ 2, 3, forbidding L. Ed. 237, 32 S. Ct. 160. common carriers to permit such employees The restrictions upon the hours of la- to be on duty for a longer period than bor of railway employees connected with nine hours in any twenty-hour period in the movement of trains in interstate trans- a place continuously operated night and portation. made by Act March 4, 1907, c. day. United States v. Atchinson, etc., R. 2939, 34 Stat. 1415 (U. S. Comp. St. Supp. Co., 220 U. S. 37, 55 L. Ed. 361, 31 S. Ct. 1909, p. 1170), are not unconstitutional be- 362. cause many of such employees are, by "It is impossible to ex'.ract the require- virtue of practical necessity, also em- ment of fifteen hours' continuous leisure ployed in intrastate transportation. Balti- from the words of the statute by gram- more, etc., R. Co. V. Interstate Commerce matical construction alone. The proviso Comm., 221 U. S. 612, 55 L. Ed. S78, 31 docs not say nine 'consecutive' hours, as S. Ct. 621. was said in the earlier part of the section, 328-18t. Certainty and validity of act — and i; it had sr.id so, or ever 'fo; a longer Effect of exception in case of emergency, period than a period of nine consecutive etc. — Baltimore, etc.. R. Co. v. Interstate hours,' still the defendant's conduct would Commerce Comm., 221 U. S. 612. 55 L. not have contravened the literal meaning Ed. 878, 31 S. Ct. 621. of the words. A man employed for six 328-18U. Requirement as to hours of hours and then, after an interval for labor construed. — United States v. Atch- three, in the same twenty-four, is not em- inson, etc., R. Co., 220 U. S. 37, 55 L. Ed. ploved for a longer period than nine con- 361, 31 S. Ct. 362. seciitive hours." United States v. Atch- Requiring a railway telegraph operator inson, etc.. R. Co., 220 U. S. 37, 55 L. Ed. to work five and one-half hours, and then, 361, 31 S. Ct. 362. 712 Vol. MI. IXTERSTATE, ETC., COMMERCE. 328 to call into play its exclusive power. i-^" Congress has so acted upon the subject of the hours of labor of interstate railway employees by enacting the Hours of Ser\-ice Act (Act March 4, 1907, c. 2939, 34 Stat. 1415, U. S. Comp. Stat. Supp. 1909, p. 1170) as to preclude a state during the period between the date of that act and the time when, by its express terms, it should go into effect, from mak- ing or enforcing as to such employees a local regulation limiting hours of labor.^^'' Reports as to Excess Service — Power of Commission to Require. — Au- thority to require the secretary or similar officer of the carriers subject to Act March 4, 1907. c. 2939, 34 Stat. 1415 (U. S. Comp. St. Supp. 1909, p. 1170), legulating the hours of labor of employees, to make monthly reports under oath, showing instances where employees subject to the act have rendered excess serv- ice, and giving the cause and explanatory facts, if any, or, where there has been no excess service, to make a separate oath to that effect in lieu of the form to be used in detailing excess service, was conferred upon the interstate commerce commission by the provision of section 4. empowering it to call to its aid in the enforcement of the act "all powers granted to it," wdien read in connection with Act of June 18, 1910, c. 309, § 14, 36 Stat. 555, authorizing the Commission to require the carriers to file periodical or special reports under oath concerning any matter about which it is by law authorized or required to keep itself informed, or which it is required to enforce. ^^^ Same — Self-incrimination. — Carriers subject to the Act of ]\Iarch 4, 1907, regulating hours of labor of employees, can not claim a privilege against self- crimination to justify the refusal to comply with an order of the interstate commerce commission, requiring the secretary or similar officer to make monthly reports under oath, showing the instances where employees subject to the act have rendered excess service, and giving the cause and explanatory facts, if any, or where there has been no excess service, to make a separate oath to that effect, in lieu of the form to be used in detailing excess service.^*-' Same — Same — Privilege of Officers of Corporation. — The secretary or similar officer of a carrier subject to the Act of March 4, 1907, regulating hours of labor of employees, can not claim a personal privilege against self-crimination to justify a refusal to comply with an order of the interstate commerce commis- sion, requiring such official to make monthly reports under oath, showing the instances where employees subject to the act have rendered excess service, and giving the cause and explanatory facts, if any. or, where there has been no ex- cess service, to make a separate oath to that effect, in lieu of the form to be used 328-18V. Exclusive or controlling opera- the fact that it may also have been carry- tion of statute. — Xorthern Pac. R. Co. v. ing some local freight. In view of the Atkinson, 222 U. S. 370. 56 L. Ed. 237, 33 unity and indivisibility of the service of S. Ct. 160. the train crew and the paramount char- 328-18W. Same.— Xorthern Pac. R. Co. acter of the authority of congress to regu- r. Atkinson. 222 U. S. 370, 56 L. Ed. 237, late commerce, the act of congress was 32 S. Ct. 160, reversing judgment (1909\ exclusively controUmg. Northern Pac. State V. Xorthern Pac. Ry. Co., 102 P. R- Co. v. Atkinson. 222 U. S. 370. 56 L. 876. 53 Wash. 673, 17 Ann. Cas. 1013. ?^). (ee) Qualifications, Duties and Liabilities of Employees. — Forbidding Dis- charge because of Membership in Labor Organization. — There is no such connection between interstate commerce and membership in a labor organization as to authorize congress to enact legislation making it a crime for the officers or agents of interstate carriers to discharge employees because of their member- ship in such organizations. -^'^ (ff) Liability of Carrier. — Making Initial Carrier Liable for Loss Any- where en Route — Constitutionality of Statute. — It is within the power of congress to impose upon an interstate carrier voluntarily receiving property for transportation from a point in one state to a point in another state, liability to the holder of the bill of lading for a loss anywhere en route, with a right of re- covery over against the carrier actually causing the loss, and to invalidate any agreement or stipulation, limiting the liability of the initial carrier to losses oc- curring on its own line.^-^ Such a statute is not unconstitutional, either as tak- ing the property of the initial carrier to pay the debt of an independent connect- ing carrier in violation of the due process clause of the fifth amendment, or as violating the liberty of contract guaranteed by that amendment. ^2" C28-18SS. Sarae — State courts not to de- Ct. 164. affirming Riverside Mills z'. At- cline jurisdiction. — Second Emoloj'ers' lantic Coast Line R. Co. (C. C), 168 Fed. Liability Cases, 223 U. .S. 1, 56 L. Ed. 327, 990; Louisville, etc., R. Co. v. Scott, 219 32 S. Ct. 169. U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171, af- 328-18tt. Distribution of damages.— firming 133 Ky. 724. 118 S. W. 990. See, Second Employers' Liability Cases, 223 also, ante, CARRIERS, p. 210. U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. The imposition upon an interstate car- 328-21a. Forbidding discharge because rier voluntarily receiving property for of membership in labor organization. — transportation from a point in one state Adair z'. United States, 208 U. S. 161, 52 L. to a point in another state, of liability to Ed. 436, 28 S. Ct. 277. the holder of the l)ill of lading for a loss There is no such connection between anywhere en route, with a right of recov- interstate commerce and membership in ery over against the carrier actually caus- a labor organization as to authorize Con- ing the loss which is made by Act Feb. 4, gress, by Act June 1, 1898, c. 370, § 10, 30 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. Stat. 424 [U. S. Comp. St. 1901, p. 3205], St. 1901, p. 3169), as amended by Act June to make it a crime against the United 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. States for an agent or officer of an inter- Comp. St. Supp. 1909, p. 1163), in spite of state carrier, having full authority in the any agreement or stipulation limiting lia- premises from his principal, to discharge bility to its own line, is a valid regulation an employee from service to such carrier of interstate commerce. Atlantic, etc., R. because of such membership on his part. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Judgment, United States v. Adair (D. C), Ed. 167, 31 S. Ct. 164. affirming judgment 152 F. 737, reversed. Adair v. United Riverside Alills t'. Atlantic Coast Line R. States. 208 U. S. 161, 52 L. Ed. 436, 28 S. Co. (C. C. 1909), 168 F. 990; Louisville, Ct. 277. etc., R. Co. V. Scott, 219 U. S. 209. 55 L. 328-22a. Making initial carrier liable Ed. 183, 31 S. Ct. 171, affirming judgment for loss anywhere en route — Constitution- (1909), 118 S. W. 990, 133 Ky. 724; Galves- ality of statute.— Galveston, etc., R. Co. v. ton, etc., R. Co. ?'. Wallace, 223 U. S. 481, Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 S. 56 L. Ed. 516, 32 S. Ct. 205. Ct. 205; Atlantic, etc., R. Co. v. Riverside 328-22b. Same — As a deprivation of Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. property, liberty of contract, etc.— .\tlan- 719 328 INTERSTATE, ETC., COMMERCE. Vol. VII. Same — Requiring Carrier to Undertake to Carry to Destination. — The requirement that carriers who undertake to engage in interstate transportation, •and as a part of that business hold themselves out as receiving packages destined to places beyond their own terminal, shall be required, as a condition of con- tinuing in that traffic, to obligate themselves to carry to the point of destination, using the lines of connecting carriers as their own agencies, was not beyond the scope of the power of regulation.--^ Enforcement of Act — Jurisdiction of State Courts. — The damage caused by the failure of a connecting carrier in an interstate shipment to deliver the goods to the consignee, for which failure the initial carrier is made liable by the Carmack amendment of June 29, 1906 (34 Stat, at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1909. p. 1149), to the Interstate Commerce Act of Feb- ruary 4, 1887 (24 Stat, at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154), is not traceable to a violation of the statute, redress for which, under § 9 of the tic, etc., R. Co. V. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164, affirm- ing Riverside Mills v. Atlantic Coast Line R. Co. (C. C), 168 Fed. 990; Louisville, etc., R. Co. V. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171, affirming 133 Ky. 724, 118 S. W. 990. The property of the initial carrier is not taken in violation of Const. U. S. Amend. '5, to pay the debt of an independent con- necting carrier whose negligence may have been the sole cause of a loss, by the Car- mack amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1909, p. 1163]), to Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), under which an interstate carrier voluntarily receiving property for transportation from a point in one state to a point in another state is made liable to the holder of the bill of lading for a loss anywhere en route, in spite of any ■ agreement or stipulation to the contrary, with a right of recovery over against the carrier actually causing the loss, since the liability of the receiving carrier which re- sults in such a case is that of a principal for the negligence of his own agents. At- lantic, etc., R. Co. V. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164, af- firming judgment Riverside Mills v. At- lantic Coast Line R. Co. (C. C. 1909), 168 F. 990; Louisville, etc., R. Co. v. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171, af- firming judgment (1909), 118 S. W. 990, 133 Ky. 724. The liberty of contract secured by Const. U. S. Amend. 5, was not unconsti- tutionally denied by the enactment by congress, in the exercise of its power un- der the commerce clause, of the Carmack amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1909, p. 1163]) to Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3169), by which an interstate carrier voluntarily receiving property for transportation from a point in one state to a point in another state is made liable to the holder of the bill of lading for a loss anvwhere en route. in spite of any agreement or stipulation to the contrarjr, with a right of recovery over against the carrier actually causing the loss. Atlantic, etc., R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164, affirming judgment Riverside Mills V. Atlantic Coast Line R. Co. (C. C. 1909), 168 F. 990; Louisville, etc., R. Co. V. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171, affirming judgment (1909), 118 S. W. 990, 133 Ky. 724. 328-220. Same — Requiring carrier to undertake to carry to destination. — Atlan- tic, etc., R. Co. V. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164, fol- lowed in Louisville, etc., R. Co. v. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171. Statute construed — Considered a through contract. — A carrier voluntarily receiving property for transportation to a point on another line in another state is, under the Carmack amendment of June 29, 1906, to the Interstate Commerce Act of February 4, 1887, conclusively treated as having made a throtigh contract of car- riage, rendering it liable for the other carrier's negligent failure to deliver the shipment to the consignee. It thereby elected to treat the connecting carriers as its agents, for all purposes of transporta- tion and delivery. Galveston, etc., R. Co. V. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 S. Ct. 205. Same — Presumptions — Burden of proof. — Proof of delivery of an interstate ship- ment to the initial carrier, and of failure to deliver the same to the consignee, raises a presumption of negligence, so as to give rise to the liability imposed fey the Carmack amendment of June 29, 1906, to the Interstate Commerce Act of Feb- ruary 4, 1887, for loss or damage caused by it or any other carrier in the chain of transportation, and casts upon it the bur- den of proving that the loss resulted from some cause for which such initial carrier was not responsible in law or by contract. Galveston, etc., R. Co. v. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 S. Ct. 205. 720 Vol. VII. INTERSTATE, ETC., COMMERCE. 328-332 original act, can only be had in the interstate ■ commerce commission or in the federal courts, but such liability may be enforced by an action in a state court of competent jurisdiction.--'^ hh. Exclusion of Imports — Establishment of Standards. — See note 35. ii. Fisheries. — See ante, "Exclusion of Imports — Establishment of Standards," II, A, 1, b, (3), (b), hh. See, also, ante, Fish and Fisheries, p. 583. jj. Immigration. — See note 40. 328-22d. Enforcement of act — Jurisdic- tion of state courts. — Galveston, etc., R. Co. V. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 S. Ct. 205. Th£ jurisdiction of the state court was attacked, first, on the ground that § 9 of the original Act of 1887 provided the per- sons damaged by a violation of the stat- ute "might make complaint before the commission * * * or in any district or circuit court of the United States." 24 Stat, at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154. It was contended that Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 S. Ct. 350, ruled that this jurisdiction was ex- clusive, and from that it was argued that no suit could be maintained in a state court on any cause of action created ei- ther by the original Act of 1887 or by the amendment of 1906. But damage caused by failure to deliver goods is in no way traceable to a violation of the statute, and is not, therefore, within the provisions of §§ 8, 9 of the act to regulate commerce. Galveston, etc., R. Co. v. Wallace, 223 U. S. 481, 56 L. Ed. 516, 32 S. Ct. 205; Atlan- tic, etc., R. Co. f. Riverside Mills. 219 U. S. 186, 20S, 55 L. Ed. 167, 31 S. Ct. 164. 331-35. Exclusion of imports — Vested or property right to engage in foreign trade. — As a result of the complete power of congress over foreign commerce, it necessarily follows that no individual has a vested right to trade with foreign na- tions, which is so broad in character as to limit and restrict the power of congress to determine what articles of merchandise may be imported into this country, and the terms upon which a right to import may be exercised. This being true, it re- sults that a statute which restrains the in- troduction of particular goods into the United States from considerations of pub- lic policy does not violate the due proc- ess clause of the constitution. Oceanic Steam Nav. Co. 7'. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671. Congress, by an exertion of its power to regulate foreign commerce, has the au- thority to forbid merchandise carried in such coinmerce from entering the United States. Buttfield f. Stranahan, 192 U. S. 470, 493, 48 L. Ed. 525, 24 S. Ct. 341, and authorities there collected. Indeed, as pointed out in the Buttfield Case, so com- plete is the authority of congress over the subject that no one can be said to have a vested right to carry on foreign commerce 12 U S Enc— 46 7 with the United States. The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. Same — Regulation of fisheries — Exclu- sion of sponges. — Congress could validly prohibit, as it did by the Act of June 20, 1906, the landing at any port or place in the United States of sponges taken be- tween certain dates outside of state terri- torial waters. The Abby Dodge, 223 U. S. 166. 56 L. Ed. 390, 32 S. Ct. 310. Since the bed of all tide waters within state territorial limits is owned by the state and is subject to its general jurisdic- tion, sovereignty and eminent domain, the taking or gathering of sponges from land under water within state territorial limits is not subject to congressional control. The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. Only sponges taken outside of state territorial limits can be deemed included in the provisions of the Act of June 20, 1906 (34 Stat, at L. 313, chap. 3442, U. S. Comp. Stat. Supp. 1909. p. 1087), making it unlawful to land, deliver, cure or offer for sale at any port or place in the United States any sponges taken by means of div- ing or diving apparatus froni the waters of the Gulf of ]\Iexico or Straits of Flor- ida, since any other construction would plainly render the statute unconstitutional, as in excess of the powers of congress. The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. Sam e^ — L i b e 1 — Allegations. — A libel charging a vessel with violating the Act of June 20, 1906, by landing at a Florida port sponges taken by means of diving or diving apparatus from the waters of the Gulf of ilexico or Straits of Florida, must negative the fact that the sponges may have been taken from waters within the territorial limits of the state. The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. 332-40. Power to regulate immigration. — See, generally, ante. ALIENS, p. 18; CHINESE EXCLUSION ACTS. p. 232; CONSTITUTIONAL LAW, p. 264. Harboring alien woman for immoral purposes.— Since the suppression of crime and immorality within the states is a mat- ter coming within the police power of the states, congress has not the power to en- act the provisions of the Act of February 20, 1907, 34 Stat, at L. 898, chap. 1134, § 3, for the criminal punishment of the mere keeping, maintaining, supporting, or har- boring, for the purpose of prostitution 333 INTERSTATE, ETC., COMMERCE. \o\. VIL nn. Monopolies and Trusts. — See post, jMonopoi^iKs and Corporate; Trusts. 00. Private Contracts. — See note 48. any alien woman within three years after she shall have entered the United States. Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. While the keeping of a house of ill fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to congress or is re- served to the state. Jurisdiction over such an ofifense comes within the ac- cepted definition of the police power. Speaking generally, that power is reserved to the states, for there is in the constitu- tion no grant thereof to congress. Keller V. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct. 470. 333-48. Private contracts obstructing or regulating commerce. — No contract can properly be carried into effect, which was originally made contrary to the pro- visions of law, or which, being made con- sistently with the rules of law at the time, has become illegal in virtue of some sub- sequent law. Louisville, etc., R. Co. t'. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. In the Legal Tender Cases, the court, referring to the fifth amendment, which forbids the taking of private property for public use without just compensation or due process of law, said: "That provision has always been understood as referring only to a direct appropriation, not to con- sequential injuries resulting from the ex- ercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that indirectlj^ work harm and loss to individuals." Louisville, etc., R. Co. V. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. In the Addyston Pipe, etc., Co. v. United States, 175 U. S. 211, 44 L. Ed. 136, 20 S. Ct. 96, the court said: "We do not assent to the correctness of the propo- sition that the constitutional guaranty of liberty to the individual to enter into private contracts limits the power of congress, and prevents it from legislating upon the subject of contracts'' relating to interstate commerce. Again: "But it has never been, and in our opinion ought not to be, held that the word 'liberty' included the right of an individual to en- ter into private contracts upon all sub- jects, no matter what their nature, and wholly irrespective (among other things) of the fact that they would, if performed, result in the regulation of interstate com- merce, and in the violation of an act of congress upon that subject. The pro- vision in the constitution does not, as we believe, exclude congress from legislating with regard to contracts of the above na- ture, while in the exercise of its consti- tutional right to regulate commerce among the states * * *. Anything which directly obstructs and regulates that commerce which is carried on among the states, whether it is state legislation or private contracts between individuals or corporations, should be subject to the power of congress in the regulation of that commerce." Louisville, etc., R. Co. V. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. , After the Interstate Commerce Act came into effect, forbidding special rates, rebates, undue preferences and unequal facilities, payment of transportation in anything but money, or any departure from the printed schedules required by that act, no contract, whether future or existing, that was inconsistent with the regulations established by the act, could be enforced in any court. All such con- tracts must necessarily be regarded as having been made subject to the possi- bility that at some future time congress might so exert its whole constitutional power in regulating interstate commerce as to render those agreements unenforce- able or to impair their value. That the exercise of such power may be hampered or restricted to any extent by contracts previously' made between individuals or corporations can not be admitted, and such statute is not unconstitutional, either as impairing the obligation of contracts, depriving the parties thereto of their property or of their liberty of contract without due process of law, as an inter- ference with vested rights, or as violating the constitutional inhibition against ex post facto laws. Louisville, etc., R. Co. V. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265; New York, etc., R. Co. v. United States, No. 2, 212 U. S. 500, 505, 53 L. Ed. 624, 29 S. Ct. 309; Armour, Packing Co. v. United States, 209 U. S. 56, 81. 52 L. Ed. 681. 28 S. Ct. 428; Ameri- can Exp. Co. V. United States. 212 U. S. 522. 533, 53 L. Ed. 635, 29 S. Ct. 315. "The act to regulate commerce is a general law, and contracts are always li- able to be more or less affected by gen- eral laws, even when in no way referred to * * *. But this incidental effect of the general law is not imderstood to make it a law impairing the obligation of con- tracts. It is a necessary effect of any considerable change in the public laws. If the legislature had no power to alter its police laws when contracts would be affected, then the most important and valuable reforms inight be precluded by the simple device of entering into con- tracts for the purpose. No doctrine to that effect would be even plausible, much less sound and tenable." Louisville, etc., R. 722 Vol. MI. IXTERSVATB, ETC., COMMERCE. 338-345 ss. Wharves. — As to the conferring of an undue preference through the lease to a single shipper of wharves and piers belonging to a terminal company, see post, "Lease or Monopoly of Wharfage Facilities to Favored Shipper," IV, E, 2, c. See, also, ante, "When Protection Attaches," I, A, 4, a. tt. Xavigation and Navigable Waters — fbb) Control of Xavigable Waters of United States — aaa. In General. — See note 76. ccc. Improvement of Navigability of Jl'aters — (aaa) In General. — ^ee ante, Due Process of Lav^^ p. 475 ; Navigable; Waters ; Waters and Watercourses. (bbb) Prevention or Remoz'al of Obstructions. — See ante, DuE Process of Lav^, p. 475. (cc) Regulation of Particular Matters — iii. Liability for Marine Torts. — See post, "Marine Torts," II, A, 2, d, (19), (c), bb, (ee)', eee. uu. Houses of Ill-Fame. — See ante, "Immigration," II, A, 1, b, (3), (b), jj. 2. Power of States — a. In General— (I) Right to Engage in Not Derived from the State. — To carry on interstate commerce is not a franchise or a priv- ilege granted by the state; it is a right which every citizen of the United States is entitled to exercise under the constitution and laws of the United States ; and the accession of mere corporate facilities, as a matter of convenience in carrying on their business, can not have the effect of depriving them of such right, unless congress should see fit to interpose some contrary regulation on the subject.^^'' Co. V. Mottley, 219' U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. If the contract in question would have been illegal if made after the passage of the commerce act, it can not now be en- forced against the railroad companj', even though valid when made. If that prin- ciple be not sound, the result would be that individuals and corporations could, by contracts between themselves, in an- ticipation of legislation, render of no avail the exercise by congress, to the full extent authorized by the constitution, of its power to regulate commerce. No power of congress can be thus restricted. Louisville, etc., R. Co. v. Mottley. 219 U. S. 467, 55 L. Ed. 297, .31 S. Ct. 2^65. These principles have been applied to invalidate to prevent the carrying out of contracts for free annual passes for life, issued in settlement of suits for dam- ages. Louisville, etc., R. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265; and to contracts, lawful when entered into, for special rates, rebates, etc. New York, etc., R. Co. v. United States, No. 2. 212 U. S. 500, 505, 53 L. Ed. 624, 29 S. Ct. 309; Armour Packing Co. v. United States. 209 U. S. 56. 81, 52 L. Ed. 681, 694. 28 S. Ct. 428; American Exp. Co. v. United States, 212 U. S. 522. 533, 53 L. Ed. 635, 29 S. Ct. 315. See, also, post, "Embraces All Manner of Carriage, Gratuitous or Otherwise," IV, D, 1, a^^, (4); "Special Contract Waiving, Alodifying, or Annull- ing Provisions of Act," TV, D, 1, aVz, (5). "Free Carriage or Reduced Rates," IV, J. And see ante, CONSTITUTIONAL LAW, p. 264; DUE PROCESS OF LAW, p. 475. As to contracts, future and existing, designed or operating to waive or evade the provisions of the Employers' Liabilitj' Act, especially as to the release of dam- ages through the acceptance of benefits under a contract of membership in a rail- way relief department, see ante, "Em- ployers' Liability Acts,"' II, A, 1, b, (3), dd, (cc^/S), eee. 338-76. Commercial power comprehends control of navigable waters. — That the power of congress to regulate commerce among the states involves the control of the navigable waters of the United States over which such commerce is conducted is undeniable; but it is equally well set- tled that the control of the state over its internal commerce involves the right to control and regulate navigable streams within the state until congress acts on the subject. This has been the uniform hold- ing of the federal court since Wilson v. Blackbird Creek :\Iarsh Co., 2 Pet. 245, 7 L. Ed. 412; Oilman v Philadelphia. 3 Wall. 713, 18 L. Ed. 96; Escanaba Co. V. Chicago, 107 U. S. 678, 683. 27 L. Ed. 442, 2 S. Ct. 185; Coyle v. Smith, 221 U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. See, also, post, "Navigation and Naviga- ble Waters," II, A, 2, d, (19). See, gen- erally, ante, CONSTITUTIONAL LAW, p. 264; DUE PROCESS OF LAW, p. 475; post, NAVIGABLE WATERS; WATERS AND WATERCOURSES. 345-13a. Right to engage in not derived from the state. — International Textbook Co. v. Pigg. 217 U. S. 91. 54 L. Ed. 678, 30 S. Ct. 481; International Textbook Co. V. Peterson, 218 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225; West v. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564. The right to engage in interstate com- r23 345-346 INTERSTATE, ETC., COMMERCE. Vol. VII. (2) Mere Desire to Use Property in Commerce Not Sufficient. — As to whether one can acquire rights protected by the interstate commerce clause merely through his desire to use property in commerce among the states, see ante, "When Pro- tection Attaches," I, A, 4, a. (3) Power of State Divided into Three Classes. — The power of the state over the general subject of commerce has been divided into three classes: First, those in which the power of the state is exclusive; second, those in which the states may act in the absence of legislation by congress ; third, those in which the action of congress is exclusive and the state can not act at all.^-^'' (4) No Distinction betit'een Regulations Based upon the Common Laiv and Those Based upon Statutes. — A regulation of interstate commerce which would be valid if based upon the common law of the state is no less valid because made by a state statute. ^2*= b. Where Congress Has Acted — (1) In General. — See note 14. (2) Conflicting State and Federal Legislation. — See notes 15, 16, 18, merce is not the gift of a state, and it can not be regulated or restrained by a state; nor can a state exclude from its limits a corporation engaged in such commerce. West V. Kansas Natural Gas Co., 221 U. S. 329, 55 L. Ed. 716, 31 S. Ct. 564. 345-13b. Power of state divided into three classes. — Southern R. Co. v. Reid, 223 U. S. 424, 56 L. Ed. 257, 32 S. Ct. 140; Covington, etc., Bridge Co. v. Kentucky, 154 U. S. 204, 209, 38 L. Ed. 962, 14 S. Ct. 1087; Western Union Tel. Co. v. James, 162 U. S. 650, 655, 40 L. Ed. 1105, 16 S. Ct. 934. 345-13C. No distinction between regu- lations based upon common law and those based upon statute. — Western Union Tel. Co. z'. Commercial Milling Co., 218 U. S 406, 54 L. Ed. 1088, 31 S. Ct. 59. affirming judgment in Commercial Milling Co. z'. Western Union Telegraph Co. (1908), 115 N. W. 698, 151 Mich. 425. We can not concede such effect to the common law and deny it to a statute. Both are rules of conduct proceeding from the supreine power of the state. That one is unwritten and the other written can make no difference in their validity or efifect. Western Union Tel. Co. 7'. Commercial Milling Co., 218 U. S. 406, 54 L. Ed. 1088, 31 S. Ct. 59. 346-14. Where congress has acted — In general. — Inhibitive congressional legisla- tion is not essential to exclude state legis- lation upon incidental matters relating to interstate commerce with respect to which the states and congress have a concurrent power. It is sufficient if the congres- sional legislation occupies the field of regulation. Southern R. Co. v. Reid, 222 U. S. 424, 56 L. Ed. 257. 32 S. Ct. 140, re- versing judgment (1910), Reid z'. South- ern Ry. Co., 69 S. E. 618, 153 N. C. 490; Southern R. Co. v. Reid, 222 U. S. 444, 56 L. Ed. 263, 32 S. Ct. 145, reversing judg- ment (1909), Reid & Beam v. Southern Ry. Co., 64 S. E. 874, 150 N. C. 753, 17 Ann. Cas. 247. 346-15. State laws conflicting with con- gressional legislation void. — The grant of power to congress in the constitution to regulate commerce with foreign nations and among the several states, it is con- ceded, is paramount over all legislative powers which, in consequence of not hav- ing been granted to congress, are re- served to the states. It follows that any legislation of a state, although in pur- suance of an acknowledged power re- served to it, which conflicts with the ac- tual exercise of the power of congress over the subject of commerce, must give way before the supremacy of the national authority. In cases of concurrent juris- diction, state laws and regulations are superseded when the power of congress is exercised in such a manner as to con- flict therewith; and this results as well from the nature of the government as from the words of the constitution. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169; Gulf, etc., R. Co. V. Heflev, 158 U. S. 98, 104, 39 L. Ed. 910, 15 S. Ct. 802; Southern R. Co. V. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 S. Ct. 140; Northern Pac. R. Co. v. Atkinson, 222 U. S. 370, 56 L. Ed. 237, 32 S. Ct. 160; Chicago, etc., R. Co. v. United States, 219 U. S. 486, 55 L. Ed. 305, 31 S. Ct. 272; Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 739, 29 S. Ct. 470; Adams Exp. Co. v. Common- wealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633. 346-16. Source of power immaterial. — See note 15 above. 346-18. Conflict must be irreconcilable. — A statute enacted in execution of a re- served power of the state is not to be regarded as inconsistent with an act of congress passed in the execution of a clear power iinder the constitution, un- less the repugnance or conflict is so direct and positive that the two acts can not be reconciled or stand together. Savage V. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 724 Vol. A'll. INTERSTATE. ETC., COMMERCE. 346 In Case of Conflict between Fundamental Principles of the Constitu- tion. — \\'here fundamental principles of the constitution are of equal dignity, neither must be so enforced as to nullify or substantially impair the other. ^^"^ Where Same Instrumentality Is Engaged in Both Intrastate and In- terstate Commerce. — Where the same instrumentality, as in case of a railroad, is engaged in both intrastate and interstate transportation, it is subject to both state and congressional regulation, and the full control of each over the com- merce subject to its dominion must be preserved. ^^"^ (3) Where Congress Has Not Occupied the Full Sphere of Its Jurisdiction. — The intent to supersede the exercise by the state of its police power as to mat- ters not covered by the federal legislation is not to be inferred from the mere fact that congress has seen tit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of congress, fairly interpreted, is in actual conflict with the law of the state. This principle has had abundant illustration. ^^'^ S. Ct. 715; Sinnot v. Davenport, 22 How. 227, 243, 16 L. Ed. 243. "It should never be held that congress intends to supersede or by its legislation suspend the exercise of the police powers of the states, even when it may do so, unless its purpose to affect that result is clearly manifested. This court has said — and the prmciple has been often re- affirmed — that "in the application of this principle of supremacy of an act of con- gress in a case where the state law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together." " Savage v. Jones, 22.5 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. 715; Asbell 7'. Kansas, 209 U. S. 251, 52 L. Ed. 778. 28 S. Ct. 485. Determined by operation and effect, not by proclaimed purpose of act. — See post, "In General." II, A, 2, d, (2). (a). 346-18a. In case of conflict between fundamental principles of the constitu- tion.— Dick z: United States, 208 U. S. 340, 353, 52 L. Ed. 520, 28 S. Ct. 399. Thus it is held that while congress has power to regulate commerce with the In- dian tribes, and that such power is su- perior and paramount to the authority of the state within whose limits such tribes may be, yet in regulating such commerce, congress may have regard to the general authority which the state has over all persons and things within its jurisdiction; and that the authority of the state, on the other hand, can not be so exerted as to impair the power of congress to regulate commerce with the Indian tribes. Dick r. United States, 208 U. S. 340, 353, 52 L. Ed. 520. 2S S. Ct. 399. 346-18b. Where same instrumentality is engaged in both intrastate and interstate commerce. — Missouri Pac. R. Co. :•. Lara- bee Flour ^lills Co., 211 U. S. 612, 620, 53 L. Ed. 352, 29 S. Ct. 214. "The roads are, therefore. , engaged in both interstate commerce and that within the state. In the former they are sub- ject to regulation of congress, in the latter to that of the state, and to enforce the proper relation between congress and the state the full control of each over the commerce subject to its dominion must be preserved." ]\Hssouri, etc., R. Co. i'. Larabee Flour Mills Co., 211 U. S. 612, 620. 53 L. Ed. 352, 29 S. Ct. 214; Fairbank 7'. United States. 181 U. S. 283. 45 L. Ed. 862, 21 S. Ct. 648. 346-18C. Where congress has not oc- cupied the full sphere of its jurisdiction. — Savage :■. Jones. 225 U. S. 501. 533, J6 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. i: Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784; Asbell V. Kansas. 209 U. S. 251, 53 L. Ed. 778. 28 S. Ct. 485; Northern Pac. R. Co. f. Atkinson, 222 U. S. 370. 379, 56 L. Ed. 237, 32 S. Ct. 160; Southern R. Co. z: Reid, 222 U. S. 424, 442. 56 L. Ed. 257, 32 S. Ct. 140; Chicago, etc., R. Co. z: Solan, 169 U. S. 133, 42 L. Ed. 688, 18 S. Ct. 289; :\Iis- souri. etc.. R. Co. z: Haber, 169 U. S. 613, 42 L. Ed. 878. 18 S. Ct. 488. Extent of powers delegated to inter- state commerce commission. — The mere delegation by congress to the interstate commerce commission of certain powers is not equivalent to specific action by congress, in respect lo the particular mat- ters involved, which prevents a state from making regulations conducive to the welfare of its citizens that may in- directly affect commerce. Missouri Pac. R. Co. V. Larabee Flour Mills Co., 211 U. S. 612. 53 L. Ed. 352. 29 S. Ct. 214. Full sphere of power not covered by Food and Drugs Act. — Congress did not, l)y the passage of the Food and Drugs Act of June 30. 1906 (34 Stat, at L. 768, chap. 3915, U. S. Comp. Stat. Supp. 1911, p. 1354), for the prevention of adultera- tion and misbranding of foods and drugs when the subject of interstate commerce, preclude the enactment of Ind. Acts of 1907, chap. 206. prohil)iting sales of_ con- centrated commercial feeding stuffs in the 725 347-351 INTERSTATE, ETC., COMMERCE. \o\. VII. c. Where Congress Has Not Acted — (1) In General. — See note 20. (3) Subjects of Local Concern and Local Police Regulations — (b) Particular Matters Over Which State Aiuthority May Be Exerted. — See post, "State Stat- utes Affecting Interstate and Foreign Commerce," II, A, 2, d, et seq. See, also, post. Police Power. (c) Police Regidations — aa. Police Power of States Not Surrendered by Grant of Commercial Power to Congress. — See, generally, post. Police; Power. bb. General Nature of Police Pozver. — See post, Police Power. cc. Police Power as Limited by Commercial PoT^vr of Congress. — See notes 49, 50, 64. original packages unless there be compli- ance with its requirements as to inspec- tion and analysis and the disclosure of the ingredients, including the minimum percentage of crude fat and crude pro- tein, and the maximum percentage of crude fiber, and with its incidental pro- visions for the filing of a certificate, for registration, and for labels and stamps. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, "^32 S. Ct. 715. 347-20. Inaction equivalent to declara- tion that states may not regulate.— The inaction of congress is a declaration of freedom from state interference with the transportation of articles of legitimate interstate commerce. West v. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564. For example, it is held that natural gas, when reduced to possession, is a com- modity which belongs to the owner of the land, and may be the subject of botli intrastate and interst-^te commerce, and that the state can not permit intrastate traffic therein and at the same time pro- hibit interstate traffic therein, and that as to the latter the inaction of congress is equivalent to a declaration of freedom from state interference. West v. Kansas Natural Gas Co., 221 U. S. 229. 55 L. Ed. 716, 31 S. Ct. 564. affirming Kansas Nat- ural Gas Co. V. Haskell (C. C), 172 Fed. 545. Power of congress not lost by nonuser. — The inaction of congress in nowise af- fects its power over the subject. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. The power to regulate commerce pos- sessed by congress is, in the nature of things, ever-enduring, and therefore the right to exert it today, tomorrow, and at all times in its plenitude must remain free from restrictions and limitations arising or asserted to arise by state laws, whether enacted before or after _ congress has chosen to exert and apply its lawful power ta regulate. Attorney General v. Dela- ware, etc., Co., 213 U. S. 366, 53 L. Ed. S35. 29 S. Ct. 527. On the other hand, the waters of a flowing stream, when sought to be di- verted and conveyed by means of a canal, :iume or ditch into another state for use therein are held not to be a legitimate sub- ject of commerce in the transportation of which a citizen may engage as of right, and that the state may forbid their trans- portation beyond its limits even to the extent of preventing the carrying out of existing contracts. Hudson County, etc., Co. V. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. 351-49. Limitations of police power — In general. — See, generally, post, PO- LICE POWER. The state can not, under cover of ex- erting its police powers, undertake what amounts essentially to a regulation of interstate commerce, or impose a direct burden upon that commerce. Savage v. Jones, 225 U. S. 501, 524, 56 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. V. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784; Atlantic, etc., R. Co. V. Wharton, 207 U. S. 328, 52 L- Ed. 230, 28 S. Ct. 121; Adams Exp. Co. v. Commonwealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633; Hannibal, etc., R. Co. V. Husen, 95 U. S. 465, 474, 24 L. Ed. 527; Walling z: Michigan, 116 U. S. 446, 29 L. Ed. 691. 6 S. Ct. 434. 351-50. Regulations incidentally affect- ing commerce. — It is supported by the general principle declared in Sherlock v. Ailing, 93 U. S. 99, 104, 23 L. Ed. 819, and enforced in Smith v. Alabama, 124 U. S. 465, 31 L. Ed. 508, 8 S. Ct. 564, and Nash- ville, etc.. Railway v. Alabama, 128 U. S. 96. 32 L. Ed. 352, 9 S. Ct. 28, that state legislation "relating to the rights, duties, and liabilities of citizens, and only in- directly and remotely affecting the opera- tions of commerce, is of obligatory force upon citizens within the territorial juris- diction, whether on land or water, or en- gaged in commerce, foreign or interstate, or in any other pursuit." Atlantic, etc., R. Co. V. Mazursky, 216 U. S. 122, 54 L. Ed. 411. 30 S. Ct. 378. See, also, ante, "General Statement of Rule," II, A, 1, b, (2), (b), cc, (aa). When a local police regulation has real relation to the suitable protection of the people of the state, and is reasonable in its requirements, it is not invalid because it may incidentally affect interstate com- merce, provided it does not conflict with legislation enacted by congress pursuant 726 Vol. MI. INTERSTATE, ETC., COMMERCE. 354-361 d. State Statutes Affecting Interstate and Foreign Commerce — (2) Construc- tion of Statutes — (a) In General. — See notes 70, 72. (3) Discrimination. — See note 82. (8) Excluding Imports and Preventing Exports — (a) Exclusion of Imports — aa. Laziful Articles of Commerce. — See note 4. to its constitutional authority. Savage z\ Jones, 225 U. S. 501, 525, 56 L. Ed. 11S2, 32 S. Ct. 715, followed in Standard Stock Food Co. V. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784; Asbell v. Kan- sas, 209 U. S. 251. 254, 52 L. Ed. 778, 28 S. Ct. 485; Chicago, etc., R. Co. v. Ar- kansas, 219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275; Plumley v. Massachusetts, 155 U. S. 461, 39 L. Ed. 223, 15 S. Ct. 154: Hennington v. Georgia. 163 U. S. 299. 317. 41 L. Ed. 166. 16 S. Ct. 1086. 354-64. Statute directed against or im- posing burden on commerce void. — It is thoroughly well settled that state laws may not burden interstate commerce. United States Exp. Co. z'. Minnesota, 223 U. S. 335, 56 L. Ed. 459. 32 S. Ct. 211. 355-70. Presumption in favor of validity — Conflict must be clear and irreconci- lable. — See ante. "Conflicting State and Federal Legislation," II, A, 2, b, (2); "Where Congress Has Not Occupied the Full Sphere of Its Jurisdiction," II, A, 2, b. (3). 355-72. Operation and effect of law con- sidered. — When the question is whether a federal act overrides a state law, the en- tire scheme of the statute must of course be considered and that which needs must be iinplied is of no less force than that which is expressed. If the purpose of the act can not otherwise be accomplished, if its operation within its chosen field must be frustrated and its provisions be refused their natural effect, the state law must yield to the regulation of congress within the sphere of its delegated power. Savage v. Jones. 225 U. S. 501. 533. 56 L. Ed. 1182. 32 S. Ct. 715, followed in Stand- ard Stock Food Co. z: Wright. 225 U. S. 540. 56 L. Ed. 1197, 32 S. Ct. 784; Texas, etc.. R. Co. z: Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 S. Ct. 350; Northern Pac. R. Co. z'. Atkinson, 222 U. S. 370, 378, 56 L. Ed. 237, 32 S. Ct. 160; Southern R. Co. v. Reid. 222 U. S. 424, 436. 56 L. Ed. 257, 32 S. Ct. 140. If a statute, by its necessary operation, really and substantially burdens the in- terstate business of a foreign corporation seeking to do Imsiness in a state, or im- poses a tax on its property outside of such state, then it is unconstittitional and void, although the state legislature may not have intended to enact an invalid statute. Ludwig v.- Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. Neither the state courts nor the legis- latures, for example, can. by giving to a tax a particular name, or by the use ot some form of words, deprive the federal supreme court of its duty to Consider its nature and effect. If it bears upon com- merce among the states so directly as to amount to a regulation in a relatively immediate way, it will not be saved by name or form. In all such matters the judiciary will not regard mere forms, but will look through forr"- ♦^o th" rub^^ance of things. Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Stockard v. Morgan, 185 U. S. 27, 37, 46 L. Ed. 785. 22 S. Ct. 576; Asbell V. Kansas, 209 U. S. 251, 256, 52 L. Ed. 778, 28 S. Ct. 485. 358-82. Discriminating legislation void — Discriminating against foreign corpora- tions in transportation of natural gas. — The Oklahoma Statute (Laws of Okla. 1907, ch. 67), which grants the use of the highways to domestic corporations en- gaged in intrastate transportation of natural gas, giving such corporations even the right to the longitudinal use of the highways, but which denies to for- eign corporations the lesser right to pass under them or over them, notwithstand- ing it is conceded that the greater use given to domestic corporations is no ob- struction of them, makes a discrimination which is beyond the power of the state to make, since no state can by action or inaction prevent, unreasonable burden, discriminate against, or directly regulate, interstate commerce or the right to carry it on. And in all of these inhibited par- ticulars the statute of Oklahoma offends. West V. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564. 361-4. Lawful articles of commerce can not be vrholly included — Intoxicating liquors. — See post, "Tntoxicating Liquors." II. A. 2. d. (-17). Gunpowder. — The use of the words "original packages" in Kan. Laws 1907, chap. 250, making it unlawful to sell, of- fer for sale, or deliver black powder for use in any coal mines in the state except in original sealed packages containing 125^ pounds of powder, does not neces- sitate the conclusion that the statute pro- hibits the importation of black powder from other states in other than 125'? pound packages. Williams z: Walsh, 222 U. S. 415. 56 L. Ed. 253, 32 S. Ct. 137. Illuminating fluids. — The exclusion from the territory by Sess. Lav^^s Okl. 1S90, p. 187, c. 21, § 2. of illuminating fluids which have a specific gravity above 46 degrees Baume. is within the police power of the territory, although some oils may thus 727 363-370 INTERSTATE, ETC., COMMERCE. Vol. VII. (b) Prohibiting or Impeding Exportation. — See note 16. (11) Fish and Oysters. — Under its general powers of sovereignty and eminent domain the state owns the beds of all navigable and tidal waters within its ter- ritorial limits and may regulate the taking of fish and oysters found in such waters."* '^^ (12) Foreign Corporations — (a) General Power of State. — Power to Ex- clude Monopolies and Corporate Trusts. — The doctrine that a state has no power to exclude from its limits foreign corporations which are engaged in in- terstate commerce does not extend to monopolies and combinations in restraint of trade, but the state may enact valid antitrust laws applicable alike to resident and nonresident corporations, and under their provisions may expel from its borders such foreign corporations as may be found guilty of entering into a con- spiracy or monopoly in restraint of trade. -^-^ be excluded which are as safe for use as those which comply with the statutory- standard. Judgment (1907). 89 P. 212, 18 Okl. 107, affirmed. Waters-Pierce Oil Co. V. Deselms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. See, also, post, POLICE POWER. Game. — A state law which forbids the sale or even the having in possession of game within the state during the closed season is not unconstitutional even as ap- plied to game imported from another state. Silz z'. Hesterberg, 211 U. S. 31, 53 L. Ed. 75, 29 S. Ct. 10, distinguishing Schallenberger f. Pennsylvania, 171 U. S. 1, 43 L. Ed. 49. See, generally, ante, GAME AND GAME LAWS, p. 605; POLICE POWER. 363-16. Preventing exportation — In gen- eral. — A man can not acquiie a right to property by his desire to use it in com- merce among the states. Neither can he enlarge his otherwise limited and quali- fied right to the same end. Hudson County, etc., Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. See, also, Geer v. Connecticut, 161 U. S. 519, 40 L. Ed. 793. 10 S. Ct. GOO. Diversion of flowing stream into an- other state. — -The right to receive water from a river through pipes is subject to territorial limits by nature, and those limits may be fixed by the state within which the river flows, even if they are inade to coincide with the state line. Hud- son County, etc., Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. Commerce betv/een the .states of New York and New Jersey is not unlawfully interfered with by Laws N. J. 1905, p. 461. c. 238, under which a riparian owner may be forbidden to divert the waters of the Passaic river beyond the state, under a contract to furnish a water supply for the city of New York. Decree, McCarter v. Hudson Countv Water Co. (1906), 65 A. 489, 70 N. J. Eq. 695. affirmed. Hudson County, etc., Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. Exportation of natural gas. — Natural gas, when reduced to possession, is a commodity which belongs to the owner of the land, and may be the subject of both intrastate and interstate coinmerce. West z'. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564, affirm- ing decree (C. C. 1909), Kansas Natural Gas Co. c'. Haskell, 172 F. 545. Prohibiting the construction of pipe lines for natural gas, or the transportation of the gas by such lines except by domes- tic corporations, whose charters shall provide that the gas shall only be trans- ported between points in the state, and shall not be transported to, nor de- livered to, any person or corporation en- gaged in transporting or furnishing gas to points outside of the state, and giving to such domestic corporations the exclusive right of eminent domain and the use of the highways, all of which is attempted by Okla. Laws 1907, chap. 67. unconstitu- tionally interferes with interstate com- merce, and can not be justified as an ex- ercise of the police power of the state to conserve its natural resources. West v. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564. 369-48a. Fish and oysters. — Lee v. New Jersey, 207 U. S. 67. 52 L. Ed. 106, 28 S. Ct. 22; The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390. 32 S. Ct. 310. See, gen- erally, ante, FISH AND FISHERIES, p. 583. Rights under the commerce clause of the federal constitution are not infringed by the provisions of Act N. J. March 24, 1899, p. 514, § 20, as amended by Act March 22, 1901, p. 317, under which a con- viction may be had for using a dredge in tidal waters of the state for the purpose of catching oysters upon leased lands without the consent of the lessees. Judg- ment, State V. Lee (1905), 59 A. 1118, affirmed. Lee v. New Jersey, 207 U. S. 67, 52 L. Ed. 106, 28 S. Ct. 22. Importation of sponges — Powers of state and congress. — See ante, "Exclusion of Imports, Establishment of Standards," II, A, 1, b, (3), (b), hh. 370-52a. Power to exclude monopolies and corporate trusts. — Standard Oil Co. 728 Vol. MI. IXTERSTATE, ETC., COMMERCE. (i) Taxation and Licenses — aa. In General. — See note 61. 372 V. Tennessee, 217 U. S. 413, 54 L. Ed. 817, 30 S. Ct. 543; Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230; Ham- mond Packing Co. 7-. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. Interstate commerce is not unlawfully regulated, at least, in the absence of con- gressional action, by the Tennessee Anti- trust Act of March 16, 1903. under which, as construed by the state court, a foreign oil company may be excluded from doing domestic business in the state because it has induced merchants in that state, by a gift of oil, to revoke orders on a rival company for oil to be shipped into the state. Standard Oil Co. i\ Tennessee, 217 U. S. 413. 54 L. Ed. S17, 30 S. Ct. 543. Appointment of receiver upon forfei- ture of rights.— The appointment by a state court of a receiver of the property of a loreign corporation v.']iose permit to do business in the state has been ad- judged forfeited for violation of the state antitrust laws is not invalid because the judgment of forfeiture expressly permits the corporation to continue its interstate business, where the state court rested its order appointing the receiver not solely upon the Act of April 11, 1907, making special provisions for carrying out judg- ments under the antitrust laws, but also upon a statute in force before the permit to do business within the state was granted, empowering the courts to ap- point a receiver of the property of a cor- poration which is insolvent or has for- feited its corporate rights. Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. Contract rights. — Xo contract rights of domestic corporations are impaired by the provisions of Act Ark. Jan. 23, 1905 C:.\cts 1905. p. 2). § 1, imposing a penalty on corporations doing business in the state while members of a trust or combination to control prices, where the state con- stitution reserves to the legislature the power to repeal, alter, or amend corporate charters, provided no injustice be done to the incorporators. Judgment (1907), 100 S. W. 407, 81 Ark. 519, affirmed. Ham- mond Packing Co. v. Arkansas, 212 U. S. 322. 53 L. Ed. 530. 29 S. Ct. 370. 372-61. Taxation and licenses. — See, generally, post, LICENSES; ^ TAXA- TION. See, also, post, "State Taxation,"' III. It is well settled by numerous decisions of the federal supreme court, ihal a state can not, under the guise of a license tax, exclude from its jurisdiction a foreign corporation engaged in interstate com- merce, or impose any burdens upon such commerce within its limits. Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. ■■\Ve have repeatedly decided that a state law is unconstitutional and void which requires a party to take out a li- cense for carrying on interstate com- merce, no matter how specious the pre- text may be for imposing it."' Western Union Tel. Co. v. Coleman, 216 U. S. i. 54 L. Ed. 355, 30 S. Ct. 190, citing Pickard V. Pullman Southern Car Co., 117 U. S. 34. 29 L. Ed. 785. 6 S. Ct. 635; Robbins i: Shelby County Taxing Dist., 120 U. S. 489, 30 L. Ed. 694, 7 S. Ct. 592. '"X'either the state courts nor the legis- latures, by giving the tax a particular name or by the use of some form of w^ords, can take away our duty to con- sider its nature and effect. If it bears upon commerce among the "States so di- rectly as to amount to a regulation in a relatively immediate way, it will not be saved by name or form." Western Union Tel. Co. z: Coleman, 216 U. S. 1, 54 L. Ed. 355. 30 S. Ct. 190; Stockard z: Mor- gan, 185 U. S. 27, 37, 46 L. Ed. 785, 22 S. Ct. 576; Asbell v. Kansas, 209 U. S. 251, 256, 52 L. Ed. 778, 28 S. Ct. 485. See, also, ante, "In General,"' II, A, 2, d, (2), (a). "We are aware of no decision by this court holding that a state may, by any device or in any way, whether by a li- cense tax in the form of a 'fee,' or other- wise, burden the interstate business of a corporation of another state, although the state may tax the corporation's property regularly or permanently located within its limits, where the ascertainment of the amount assessed is made 'dependent in fact on the value of its property situated within the state,'" Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Postal Tel. Cable Co. v. Adams, 155 U. S. 688, 696. 39 L. Ed. 311, 15 S. Ct. 268; Leloup z: Port of Mobile, 127 U. S. 640, 649, 32 L. Ed. 311, 8 S. Ct. 1380. It is to be deduced from the adjudged cases that a corporation of one state, au- thorized by its charter to engage in law- ful commerce among the states, may not be prevented by another state from com- ing into its limits for all the legitimate purposes of such commerce. It may go- into the state without obtaining a license from it for the purposes of its interstate business, and without liability to taxation there on account of such business. West- ern Union Tel. Co. r. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. The disavowal by the state of any pur- pose to burden interstate commerce can not conclude the question as to the fact of such a burden being imposed, or as to the unconstitutionality of the statute, as shown by its necessary operation upon interstate commerce. If the statute, rea- sonably interpreted, either directly or by "29 372 INTERSTATE, ETC., COMMERCE. Ydi. VII. Requirements Tantamount to License — Filing Statements with Secre- tary of State, etc. — Not only may the state not require a foreign corporation to take out a license to do business, that is, interstate business, within the state, its necessary operation, burdens inter- state commerce, it must be adiud^ed to be invalid, whatever may have been the purpose for w^hich it was enacted, and al- though the company may do both inter- state and local business. The federal su- preme court has repeatedly adjudged that in all such matters the judiciary will not regard mere forms, liut will look throuph forms to the substance of things. Such is an established rule of constitu- tional construction, as the adjudged cases abundantly show. Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L- Ed. 355, 30 S. Ct. 190. Illustrations — Charter fees, tax on fran- chise, business, property without the state, etc. — The exaction from a foreign tele- graph company for the benefit of the permanent school fund, imder the au- thority of Gen. St. Kan. 1901, p. 280, § 1261, of a "charter fee" of a given per cent of its entire authorized capital stock, as a condition of continuing to do local business in the state, is invalid under the commerce clause of the federal constitu- tion, as necessarily amounting to a bur- den and tax on the company's interstate business and on its property located or used outside the state. Decree, State v. Western Union Telegraph Co. (1907), 90 P. 299, 75 Kan. 609, reversed. Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. The exaction from a foreign telegraph company for the benefit of the permanent school fund, under the authority of Gen. St. Kan. 1901, p. 280, of a "charter fee"' of a given per cent of its entire authorized capital stock, as a condition of continuing to do- local business in the state, is in- valid under the due process of law clause of the federal constitution, as necessarily amounting to a burden and tax on the company's interstate business and on its property located or used outside the state. Decree, State v. Western Union Telegraph Co. (1907), 90 P. 299, 75 Kan. 609, reversed. Western Union Tel. Co. V. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. That the Western Union Telegraph Company is engaged in both interstate and intrastate commerce is no reason, in itself, why Kansas may not, in good faith, require it to pay a license tax strictly on account of local business done by it in that state. But it is altogether a different thing for Kansas to deny it the privilege of doing such local business, beneficial to the public, except on condition that it shall first pay to the state a given per cent of all its capital stock, representing all of its property, wherever situated, and all its business in and outside of the state. Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. "We repeat that the statutory require- ment that the telegraph company shall, as a condition of its light to engage in local business in Kansas, first pay into the stare school fund a giveii per cent of its authorized capital, representing all its business and property everywhere, is a burden on the company's interstate com- merce and its privilege to engage in that commerce, in that it makes both such commerce, as conducted by the company, and its property outside of the state, con- tribute to the support of the state's schools. Such is the necessary effect of the statute, and that result can not be avoided or concealed by calling the ex- action of such a per cent of its capital stock a 'fee' for the privilege of doing local business. To hold otherwise, is to allow form to control substance. It is easy to be seen that if every state should pass a statute similar to that enacted by Kansas, not only the freedom of inter- state commerce would be destroyed, the decisions of this court nullified, and the business of the country thrown into con- fusion, but each state would continue to meet its own local expenses not only by exactions that directly burdened such com- merce, but bj' taxation upon property situated beyond its limits. We can not fail to recognize the intimate connection which, at this day, exists between the interstate business done by interstate com- panies and the local business which, for the convenience of the people, must be done, or can generally be better and more economically done, by such interstate companies rather than by domestic com- panies organized to conduct only local business. It is of the last importance that the freedom of interstate commerce shall not be trammeled or burdened by local regulations which, under the guise of regulating local afifairs, really burdened rights secured by the constitution and laws of the United States. While the general right of the states to regulate their strictly domestic affairs is funda- mental, in our constitutional system, and vital to the integrity and permanence of that system, that right must always 1)e exerted in subordination to the granted or enumerated powers of the general gov- ernment, and not in hostility to rights secured by the supreme law of the land.'" Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190. An illegal burden on the interstate busi- ness of a foreign telegraph company, as well as a tax on its property beyond the "30 Vol. MI. IXTBRSTATE, ETC., COMMERCE. 372 but neither may it exact of such a corporation the doing of that which, in its practical effects, is tantamount to the taking out of a license; as that it shall make, deliver, and file with the secretary of state a statement of its financial condition and obtain his certificate that such statement has been properly made out and filed.^"^'^ . jurisdiction of the state, is imposed by Laws Ark. 1907, p. 744, under which such company, as a condition of continuing to do a local business in the state, and of escaping the heavy penalties therein pre- scribed, must pay a given amount, based on all its capital stock, merely for filing its articles of incorporation with the secre- tarv of state. Decree, Chicago, R. I. & P. Ry. Co. r. Ludwig (C. C. 1907), 1.56 F. 152, affirmed. I^idwig v. Western Union Tel. Co.. 216 U. S. 146, 54 L. Ed. 423, .^0 S. Ct. 280. "The vital question in the case is as to the constitutionality of the Arkansas statute. It is insisted by the plaintiff, among other grounds, that the provision in the statute requiring a foreign corpota- tion seeking to do business in the state to paj^ a fee based upon the amount of its capital stock, for filing with the secretary of state its articles of incorporation or association, is a device which, in effect and by its necessary operation, under the guise of regulating intrastate business, impose a tax on the interstate business of such corporation, as well as a tax on its property used and permanently located outside of the state. * * * The case can not be distinguished in principle from Western Union Tel. Co. v. Coleinan. 2j6 U. S. ]. 56. 54 L. Ed. 355, 30 S. Ct. 190. The difference in the wording of the Kansas and Arkansas statutes, can not take the present case out of the ruling of the former cases. On the authority of the Kansas cases, and for the reasons stated in the opinions therein, we hold the stat- ute in question to be unconstitutional and void, as illegally burdening interstate commerce and imposing a tax on property beyond the jurisdiction of the state." Ludwig V. Western Union Tel. Co.. 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. A foreign sleeping car company can not be restrained from doing local bu.siness in the state because of its refusal to pay the "charter fee"' of a given per cent of its entire canital stock, imposed bv Gen. St. Kan. 1901, § 1264, for "the benefit of the permanent school fund, as a condition of doing such business, since such re- quirement amounts to a burden or tax on the company's interstate business and on its propertv located and used outside the state. Judgment, State v. Pullman Co. (1907). 90 P. 319. 75 Kan. 6fi4. reversed. Pullman Co. v. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232. "For the reasons, and under the limita- tions, expressed in the opinion delivered in Western Union Tel. Co. v. Coleman 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 19o', and without expressing any opinion upon questions raised by the pleadings, but not covered by this opinion, we hold, 1. That the Pullman Company was not bound to obtain the permission of the state to transact^ interstate business within its limits, but could go into the state, for the purposes of that business, without lia- bility to taxation there with respect to such business, although subject to rea- sonable local regulations for the safety, cornfort, and convenience of the people which did not, in a real, substantial sense, burden or regulate its interstate business, nor subject its property interests outside of the state to taxation in Kansas. 2. That the requirement that the company, as a condition of its right to do intrastate business in Kansas, should, in the form of a fee, pay to the state a specified per cent of its authorized capital, was a viola- tion of the constitution of the United States, in that such a single fee, based as it was on all the property intcrt;sts, and business of the company, within and out of the state, was, in effect, a tax both on the interstate business of that company, and on its property outside of Kansas, and compelled the company, in order that it might do local business in Kansas in connection with its interstate business, to waive its constitutional exemption from state taxation on its interstate business and on its nroperty outside of the state, and contribute from its capital to the sup- port of the public schools of Kansas: that the state could no more exact such a M-aiver than it could prescribe as a con- dition of the company's right to do local business in Kansas that it agree to waive the constitutional guaranty of the equal protection of the laws, or the guaranty against being deprived of its property otherwise than by due process of law." Pullman Co. v. Coleman, 216 U. S. 56, 54 L. Ed. 378. 30 S. Ct. 232. 372-64a. Requirements tantamount to license — Filing statements with secretary of state. — International Textbook Co. v. Pigg. 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481; International Textbook Co. z'. Peter- son, 218 U. S. 664, 54 L. Ed. 1201. 31 S. Ct. 225. Interstate commerce is unconstitution- ally regulated by the provisions of Gen. St. Kan. 1901, § 1283, under which the filing of a statement of financial condition is made a prerequisite to the right of a foreign corporation engaged in imparting 731 372 INTERSTATE, ETC., COMMERCE. Vol. VII. (13) Game. — See, generally, ante, Game and Game; Laws, p. 605. See, also, ante, "Lawful Articles of Commerce," II, A, 2, d, (8), (a), aa. (15) Inspection Laws. — See ante, Inspection Laws, p. 670. See, also, ante, '"Where Congress Has Not Occupied the Full Sphere of Its Jurisdiction," II, A, 2, b, (3) ; post, "State Pure Food Laws," II, A, 2, d. (29) ;• "Pure Food and Drugs Act," V, et seq. instruction by correspondence to do busi- ness in the state, where such business in- volves the solicitation oi students in Kan- sas by local agents, who are also to col- lect and forward to the home office the tuition fees, and the systematic inter- course by correspondence between the company and its students and agents, wherever situated, and the transportation of the needful books, apparatus, and pa- pers. Judgment (1907), 91 P. 74, 7G Kan. 328, reversed. International Textbook Co. V. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481, followed in International Textbook Co. v. Peterson, 218 U. S. 004, 54 L. Ed. 1201, 31 S. Ct. 225. Was it competent for the state to pre- scribe, as a condition of the right of the Textbook Company to do interstate busi- ness in Kansas, such as was transacted with Pigg. that it should prepare, de- liver, and file with the secretary of state the statement mentioned in § 1283? The above question must be answered in the negative upon the authority of former ad- judications by the federal supreme court. A case in point is Crutcher v. Kentucky, 141 U. S. 47, 57, 35 L. Ed. 649, 11 S. Ct. 851; International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481; International Textbook Co. v. Peterson, 218 U. S. 664, 54 L. Ed. 120J. 31 S. Ct. 225. The statute does not, in terms, require the corporation of another state engaged in interstate commerce to take out what is technically "a license'' to transact its business in Kansas. But it denies all au- thority to do business in Kansas unless the corporation makes, delivers, and files a "statement" of the kind mentioned in § 1283. The effect of such requirement is practically the same as if a formal license was required as condition precedent to the right to do such business. In either case it imposes a condition upon a cor- poration of another state seeking to do business in Kansas, which, in the case of interstate business, is a regulation of in- terstate commerce and directly burdens such commerce. The state can not thus burden interstate commerce. It follows that the particular clause of § 1283 re- quiring that "statement"' is illegal and void. International Textbook Co. r. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481; International Textbook Co. v. Peterson, 218 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225. The Textbook Company may have a valid contract with a citizen of Kansas, one directly arising out of and connected with its interstate business. The statute denies its right to invoke the authoritv of a Kansas court to enforce its provisions unless it does what we hold it was not, under the constitution, bound to do; namely, make, deliver, and file with the secretary of state the statement required by § 1283. If the state could, under any circumstances, legally forbid its cotirts from taking jurisdiction of a suit brought by a corporation of another state, en- gaged in interstate business, upon a valid contract arising out of such business, and made with it by a citizen of Kansas, it could not impose on the company, as a condition of its authority to carry in its interstate business in Kansas, that it shall make, deliver, ai>d file that statement with the secretary of state, and obtain his cer- tificate that it had been properly made. International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481; In- ternational Textbook Co. v. Peterson, 218 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225._ It is sufficient to say that the require- ment of the statement mentioned in Kan. Gen. Stat. 1901, § 1283, imposes a direct burden upon the plaintiff's right to en- gage in interstate business, and therefore is in violation of its constitutional rights. It is the established doctrine of the fed- eral supreme court that a state may not, in any form or under any guise, directly burden the prosecution of interstate busi- ness. But such a burden is imposed when the corporation of another state, lawfully engaged in interstate commerce, is re- quired, as a condition of its right to prose- cute its business in Kansas, to make and file a statement setting forth certain facts which the state, confessedly, could not control by legislation. It results that the provision as to the statement mentioned in § 1283 must fall before the constitu- tion of the United States, and with it, according to the established rules of statu- tory construction, must fall that part of the same section which provides that the obtaining of the certificate of the secre- tary of state that such statement has been properly made shall be a condition prece- dent to the right of the plaintiff to main- tain an action in the courts of Kansas. International Textbook Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481, fol- lowed in International Textbook Co. v. Peterson, 218 U. S. 664, 54 L. Ed. 1201, 31 S. Ct. 225. 732 \'ol. MI. IXTERSTATE, ETC., COMMERCE. 378-382 (17) Into.vicating Liquors — (a) In General. — See note 95. (c) While Property Is in Transit — aa. In General. — See note 10. bb. When Property Is in Transit. — See note 14. (d) After Property Has Reached Its Destination — bb. Since Passage of Wil- son Act — (aa) The Act — ccc. Object and Purpose. — See ante, "In General," 378-95. Intoxicating liquors — Article of commerce. — The right to send liquors from one state into another, and the act of sending the same, is interstate com- merce, the regulation whereof has been committed by the constitution of the United States to congress, and, hence, that a state law which denies such a right, or substantially interferes with or hampers the same, is in conflict with the constitu- tion of the United States. Adams Exp. Co. z'. Commonwealth. 214 U. S. 218, 3''> L. Ed. 972, 29 S. Ct. 633. By a long line of decisions, beginning even prior to Leisy v. Hardin, 135 U. S. 100, 34 L. Ed. 128, 10 S. Ct. 681, it has been indisputably determined: a. That beer and other intoxicating liquors are a recognized and legitimate subject of in- terstate commerce, b. That it is not com- petent for any state to forbid any com- mon carrier to transport such articles from a consignor in one state to a con- signee in another. c. That until such transportation is concluded by delivery to the consignee, such commodities dc not become subject to state regulation, restraining their sale or disposition. Louis- ville, etc., R. Co. v. Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355. 32 S. Ct. 189. Offense of furnishing liquor to inebri- ate — As applied to interstate transporta- tion. — The provision for the punishnivint of knowingly furnishing intoxicating liquor to an inebriate, which is made by Ky. Stat. 1903, § 1307, is, as applied to the transportation of liquor by an express company from state to state, an uncon- stitutional regulation of interstate com- merce. Adams Exp. Co. :\ Common- wealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633. Refusal of carrier to accept interstate shipments. — A carrier incorporated imder the laws of the state of Kentucky can not justify its refusal to accept interstate shipments of intoxicating liquors con- signed to localities in that state where local option prohibitory laws prevail, un- der Ky. Act of March 21, 1906, making the transportation of such shipments un- lawful, since such statute, as applied to interstate shipments, is an unlawful regu- lation of commerce. Louisville, etc., R. Co. z: Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. Valid as the Kentucky legislation un- doubtedly was as a regulation in respect to intrastate shipments of such articles, it was most obviously never an effective en- actment in so far as it undertook to regu- late interstate shipments to dry points. Loufsville, etc., R. Co. v. Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. Same — Remedy of shipper, — A shipper seeking relief because oi the refusal of a carrier to accept interstate shipments of intoxicating liquors consigned to local option or "dry"' points, which the carrier seeks to justify under a state statute for- bidding the transportation of such ship- ments, which is attacked as an unlawful regulation of commerce, may invoke the jurisdiction of the courts without first ap- plying to the interstate commerce com- mission, since the question involved is one of general law, for a judicial tril)unal and one not competent for the commis- sion as a purely administrative body. Louisville, etc., R. Co. v. Cook Brewing- Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. 381-10. While property is in transit. — The Wilson Act (26 Stat, at L. 313. chap. 728, U. S. Comp. Stat. 1901, p. 3177) "'was not intended to and did not cause the power of the state to attach to an inter- state commerce shipment, whilst the mer- chandise was in transit under such ship- ment, and imtil its arrival at the point of destination, and delivery there to the con- signee." Adams Exp. Co. v. Common- wealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633. 382-14. When property is in transit^ Under Wilson Act. — The Wilson Act (26 Stat, at L. 313. chap. 728, U. S. Comp. Stat. 1901, p. 3177), which subjects such liquors to state regulation, although still in the original packages, does not applj' before actual delivery to such consignee, where the shipment is interstate. Some of the many later cases in which these mat- ters have been so determined and the Wilson Act construed are: Rhodes v. Iowa, 170 U. S. 412. 42 L. Ed. 1088, 18 S. Ct. 664; Vance v. Vandercook Co.. Xo. 1, 170 U. S. 438, 42 L. Ed. 1100, 18 S. Ct. 674; Hevman z: Southern R. Co.. 203 U. S. 270, 51 L. Ed. 178, 27 S. Ct. 104; Adams Exp. Co. z: Commonwealth, 214 U. S. 218. 53 L. Ed. 972, 29 S. Ct. 633; Louisville, etc., R. Co. z: Cook Brewing Co.. 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. The transportation is not complete un- til deliverv to the consignee. .Adams Exp. Co. z: Co'mmonwealth, 214 U. S. 218, 53 L. Ed. 972, 29 S. Ct. 633; Louisville, etc., R. Co. z: Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189. i33 385-387 INTERSTATE, ETC., COMMERCE. \o\. VII. II, A, 2, d, (17), (c), aa; "When Property Is in Transit," II, A, 2, d, (17), (c), bb. (e) Pozcer of State to Tax or License — aa. In General. — See note 37. (19) Navigation and Navigable Waters — (a) In General. — See, generally, ante. Due Process of Law, p. 475 ; post. Navigable Waters ; Waters and Watercourses. See, also, ante, "Navigation and Navigable Waters," 11, A, 1, b, (3), tt, et seq. ^ (b) What Constitutes Navigable Waters. — See post. Navigable Waters. (c) Regulation of Navigation and Navigable JVaters — bb. Navigable Waters of United States — (aa) In General. — See note 45. 385-37. Power of state to tax or li- cense — Traveling salesmen soliciting or- ders. — The annual license charge imposed by a state law upon the business of sell- ing or offering for sale intoxicating liquors within the state by any traveling sales- man who solicits orders in quantities of less than five gallons can not be regarded, when applied to interstate transactions, repugnant to the commerce clause of the federal constitution, in view of the pro- visions of Wilson Act Aug. 8, 1890, c. 728, 26 Stat. 313 [U. S. Conip. St. 1901, p. 3177], that intoxicating liquors coming into the state shall be as completely un- der its control as if manufactured therein. Judgment, State v. Delamater (S. D. 1905), 104 N. W. 537, affirmed. Delamater c'. South Dakota, 205 U. S. 93, 51 L. Ed. 724, 27 S. Ct. 447. Traffic in original packages. — A license tax imposed under municipal ordinance upon those engaged in selling beer in the city by the barrel, half barrel, or quarter barrel must be regarded, even when ap- plied to interstate transactions in the original packages, as an exercise of the police power permitted by the Wilson Act of August 8, 1890 (26 Stat, at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177), subjecting intoxicating liquors arriving in a state to the laws of such state en- acted in the exercise of its police powers, although the city may derive more or less revenue from the ordinance in question. Phillips V. Mobile, 208 U. S. 472, 52 L. Ed. 578, 28 S. Ct. 370, affirming judgment City of Mobile v. Phillips (1906), 40 So. 826, 146 Ala. 138; Richard v. Phillips, 208 U. S. 480, 52 L. Ed. 581, 28 S. Ct. 372. "It is insisted that congress, by the pas- sage of the Wilson Act, merely removed the impediment to the states reaching the interstate liquor, through the police power, and that it intended to, and did, keep in existence any othei impediment to state interference with interstate commerce in original packages. But we are of opinion that this section of the ordinance was clearlj' an exercise of the police power ot the state, and, as such, authorized by the act of congress. The fact that the city derives more or less revenue from the or- dinance in question does not tend to prove that this section v;as not adopted in the exercise of the police power, even though it might also be an exercise of the power to tax." Phillips z: Mobile, 208 U. S. 472, 52 L. Ed. 578, 28 S. Ct. 370. 387-45. Navigable waters of United States — In general. — "The principle has long been settled in this court that each state owns the beds of all tide waters within its jurisdiction, unless they have been granted away." The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310; Pollard v. Hagan, 3 How. 212, 11 E. Ed. 565; Smith v. ^Maryland, 18 Hov/. 71, 74, 15 L. Ed. 270; IMumford v. Wardwell, 6 Wall. 423, 436, 18 L. Ed. 756; Weber v. Harbor Comm'rs, 18 Wall. 57, 66, 21 L. Ed. 798. In like manner the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the ownership is that of the people in their united sov- ereignty. Martin v. Waddell. 16 Pet. 366, 410, 10 L. Ed. 997. The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship. The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. The rights thus held to exist in the states are "subject to the paramottnt right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States." The Abby Dodge, 223 U. S. 166, 56 E. Ed. 390, 32 S. Ct. 310. Diversion of waters by riparian owner into another state. — As to the power of a state to prevent a riparian owner from di- verting the waters of a stream of the state into another state for use therein, see ante, "Prohibiting or Impeding Exporta- tion," II, A, 2, d, (8), (b). Fish and oysters. — See ante, "Fish and Oysters," II, A, 2, d, (11). See, also, ante, FISH AND FISHERIES, p. 583; post, OYSTERS. Sponges. — As to the power of the United States to exclude sponges taken in state territorial waters, see ante, "Ex- 734 \'ol. VII. IXTERSTATE, ETC., COMMERCE. 394-409 (bb) In Absence of Congressional Action. — See ante. "In General," II, A, 1, b, (3), (b), tt, (bb), aaa; "In General," II, A, 2, d, (19), (c), bb, (aa). (ee) Particular Regulation Considered. — See, generally, ante, "In General," II, A, 2, d, (19), (c), bb, (aa). eee. Marine Torts. — The grant of admiralty jurisdiction, followed and con- strued by the Judiciary Act of 1789 (1 Stat, at L. 77, chap. 20, § 9), "saving to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it" (Rev. Stat., § 563, cl. 8, U. S. Comp. Stat. 1901, p. 457), leaves open the common-law jurisdiction of the state courts over torts committed at sea.'"'^ (21) Pilot Regulations — ( f j Pilotage at Ports .Situated upon Boundary of Tzvo States. — See note 50. (22) Quarantine Laws. — See ante, Animals, p. 27. (23) Railroads and Other Carriers — (a) In General. — See note 76. elusion of Imports — Establishment of Standards,'' II, A, 1, b. (3), (b), hh. Obstructions in waters. — Where the river is a navigable stream, entirely within the state, in the absence of any statute by congress, the state has plenary power in regard to such waters. Obstructions in those waters may be offenses against the laws of the state, but constitute no offense against the United States in the absence of a statute. Williamette Iron Bridge Co. V. Hatch, 125 U. S. 1, 31 L. Ed. 629, 8 S. Ct. 811; North Shore Boom, etc., Co. r. Nicomen Boom Co., 212 U. S. 406, 53 L. Ed. 574. 29 S. Ct. 355. 394-90a. Marine torts. — The Hamilton, 207 U. S. 398, 52 L- Ed. 264, 28 S. Ct. 133. The same argument that deduces the legislative power of congress from the jurisdiction of the national courts, tends to establish the legislative power of the state where congress has not acted. The Hamilton, 207 U. S. 398, 52 L. Ed. 264. 28 S. Ct. 133. Applying to a claim for a death on the high seas, due to a tortious collision of two vessels belonging to Delaware cor- porations, the provision of Act Del. Jan. 26, 1886, as amended by Act March 9, 1901, authorizing personal representatives to maintain an action and recover damages for a death occasioned b}^ unlawful vio- lence or negligence, does not render such provision repugnant to either the com- merce or admiralty clauses of the federal constitution, where congress has not leg- islated upon the subject. Judgment, The Hamilton (1906), 146 F. 724, 77 C. C. A. 150; The Saginaw, Id., affirmed. The Hamilton. 207 U. S. 398, 52 L. Ed. 264. 28 S. Ct. 133. 405-50. Pilotage at ports situated upon boundary of states. — The state of Louisi- ana ma\' make it a criminal offense for a pilot not duly qualified under its laws to pilot a foreign vessel from the Gulf of Mexico to Xew Orleans, La., although he holds a license issued under the author- ity of the state of Mississippi; since Xew Orleans, although upon the Mississippi river, is not "situate upon waters which are the boundary between two states," within the meaning of Rev. St. U. S., § 4236 (U. S. Comp. St. 1901, p. 2903). au- thorizing the master of any vessel coming into or going out of any port so situated to employ any pilot duly licensed or ati- thorized by the laws of either of the states bounded on such waters to pilot a vessel to or from such port, the limit of the waters so referred to being the point at which they cease to be a boundary be- tween the two states. Leech v. Louisiana, 214 U. S. 175, 53 L. Ed. 956, 29 S. Ct. 552, affirming judgment (1907), State v. Leech, 44 So. 285, 119 La. 522. With reference to the contention of the plaintiff in error in this case the court says: "'The case for the plaintiff in error depends upon the assumption that the 'waters which are the boundary between two states' are, in this case, the whole Mississippi river so far as navigable. We are of the opinion that the assumption is wrong, arid that the limit of the waters referred to is the point at which thej' cease to be a boundary between two states. Neither continuit}^ of water nor identity of name will carry them beyond that point. If the plaintiff in error had undertaken to pilot from the Gulf to Nat- chez, a different question would have been presented, and it may be that in that case the IMississippi license would have been good. But New Orleans, although upon the Mississippi, is not situate upon waters which are the boundary between two states, and therefore the section re- lied upon does not apply. That being out of the way, Louisiana had power to pass her local regulations." Leech z'. Louisi- ana, 214 U. S. 175, 53 L. Ed. 956, 29 S. Ct. 552. 409-76. Railroads — In general. — The want of power in a state to interfere with an interstate commerce train, if thereby a direct burden is imposed upon interstate commerce, is settled bevond question. The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141. See, gen- erally, ante, CARRIERS, p. 216; post, RAILROADS. 735 411 INTBRSTATB, ETC., COMMERCE. Vol. VII. (b) Purchase or Consolidation of Competing Lines. — See note 85. (c) Regulation of Charges for Transportation — aa. In General.— 86, 87. ■See notes 411-85. Purchase or consolidation of competing lines. — Interstate commerce is not burdened by requiring railroad com- panies to operate a particular line which they selected, or represented that they had selected, in a petition to the state railroad commission for approval of a con- solidation, although compliance may en- tail expense, or require the exercise of eminent domain. Judgment (1906), 41 So. 259, 89 Miss. 724, affirmed. Mobile, etc., R. Co. V. Mississippi, 210 U. S. 187, 52 L. Ed. 1016. 28 S. Ct. 650. See, generally, ante, CORPORATIONS, p. 381; post, RAILROADS. 411-86. Regulation of rates — Generally. —See ante, CARRIERS, p. 216. 411-87. Regulation of interstate rates. — It is not necessary to review the cases in the federal supreme court which have settled beyond peradventure that the na- tional government has exclupive author- ity to regulate interstate commerce under the constitution of the United States; nor to do more than reaffirm the equally well settled proposition that over interstate commerce transportation rates the state has no jurisdiction, and that an attempt to regulate such rates by the state or un- der its authority is void. Louisville, etc., R. Co. V. Eubank, 184 U. S. 27, 46 L. Ed. 416, 22 S. Ct. 277. And an order made by a state commission mider assumed author- ity of the state, which directly burdens or regulates interstate commerce, will be enjoined. McNeill v. Southern R. Co., 302 U. S. 543, 50 L. Ed. 1142, 26 S. Ct. 722; Railroad Comm. v. Worthington, 225 U. S. 101, 56 L. Ed. 1004. 1008. 32 S. Ct. 653. Power of Ohio commission to regulate rate on "lake-cargo coal." — An unconsti- tutional attempt directly to regulate and control interstate commerce is made by an order of the Ohio Railroad Commis- sion establishing a freight rate on "lake- cargo coal'' billed from Ohio coal fields to Ohio ports on Lake Erie, where such rate is applicable only to such coal as is in fact placed upon vessels at those ports for carriage to points outside the state, and covers the actual placing of such coal upon the vessels, and the trimming or dis- tributing of it in the holds so that the vessels may safely proceed on their inter- state journey. Railroad Comm. v. Wor- thington, 225 U. S. 101, 56 L. Ed. 1004, 32 S. Ct. 653. With reference to the character of the transportation in this case, the court says: "The question is, then, one of fact. Does the transportation, which the rate pre- scribed by the Railroad Commission of Ohio covers, constitute interstate com- merce? The shipper transports the coal ordinarily upon bills of lading to himself, or to another for himself, at Huron on Lake Erie. The so-called 'lake cargo coal' is necessarily shipped beyond Huron. If it stops there, another and higher rate applies. Practically all of it is put on ves- sels for carriage beyond the state, usually to upper lake ports, and then, and only then, the 70 cent rate fixed by the com- mission applies. This 70 cent rate covers the transportation of the coal to Huron, the placing of it on board vessels, and, if necessary, trimming it for continuance of its interstate journey. The situation then conies to this: that the rate put in force is applicable only to coal which is to be carried from the mine in Ohio to the lake, there placed upon vessels, and thence carried to upper lake ports beyond the state. By every fair test the transporta- tion of this coal from the mine to the upper lake ports is an interstate carriage, intended by the parties to be such, and the rate fixed by the commission, which is in controversy here, is applicable alone to coal which is thus, from the beginning to the end of its transportation, in interstate carriage, and such rate is intended to and does cover an integral part of that car- riage, the transportation from the mine to lake Erie port, the placing upon the vessel, and the trimming or distributing in the hold, if required, so that the vessel may complete such interstate carriage. We therefore reach the conclusion that, under the fact shown in this case, the Railroad Commission, in fixing the rate of 70 cents for the transportation above de- scribed, attempted to directly regulate and control interstate commerce.'' Rail- road Comm. 7'. Worthington, 225 U. S. 101. 56 L. Ed. 1004, 32 S. Ct. 653, distin- guishing. Gulf, etc., R. Co. V. Texas. 204 U. S. 403, 5] L. Ed. 540. State law compelling carrier to receive and carry interstate shipment on through rate. — Congress has so completely taken control of the subject of rate making and charging by the provisions of the act to regulate commerce and tlie amend- ments thereof as to invalidate the provi- sions of Code N. C. 1905, § 2631, so far as they penalize the refusal of a carrier to receive a tender of freight for transporta- tion to a point on the line of another car- rier outside the state where no rate for such shipment has been established, filed, or published. Southern R. Co. v. Reid, 222 U. S. .424, 56 L. Ed. 257, 32 S. Ct. 140, followed in Southern R. Co. v. Reid. 222 U. S. 444. 56 L. Ed. 263, 32 S. Ct. 145. Congress has so completely taken con- trol of the subject of railroad rate mak- ing and charging as to invalidate the pro- 736 Vol. VII. INTERSTATE, ETC., COMMERCE. 417-419 (e) Regulations to Prevent Injuries by Carriers— cc. Regulation zvith Re- gard to Speed of Trains and Other Precautions. — See note 6. (i) Requiring Trains to Stop at Certain Stations.— See note 20. visions of a state statute so far as they penalize the refusal of a railway carrier to receive a tender of freight for transpor- tation to a point on the line of another carrier outside the state, where the car- rier had no rate for such shipment. Southern R. Co. ?'. Burlington Lumber Co., 225 U. S. 99, 56 L. Ed. 1001, 32 S. Ct. 657. This is an action to recover penalties under a statute of North Carolina for re- fusal to receive goods for shipment. As the statute is the same that was held bad, so far as it concerns commerce among the states in Southern R. Co. z: Reid, 222 U. S. 424, 56 L. Ed. 257, 32 S. Ct. 140, and Southern R. Co. v. Reid, 222 U. S. 444, 56 L. Ed. 263, 32 S. Ct. 145, a short statement will be enough. On January 26, 1907, the Burlington Lumber Company tendered the railway company at Burlington, North Carolina, certain machinery for shipment to Saginaw, Michigan, on a through bill of lading. Saginaw was not on the rail- way company's line, the company had no rates to Saginaw, and the agent had to de- lay in order to inquire of his superiors. The result was that the through bill of lading was not issued until April 3. The suit, as we have said, is for the penalty, and nothing else. The supreme court of the state decided against the railway on the same ground that it did in the de- cisions already reversed. In the circum- stances it seems unnecessary to discuss the case more at length. Southern R. Co. V. Burlington Lumber Co., 225 U. S. 99, 56 L. Ed. 1001, 1003, 32 S. Ct. 657. 417-6. Regulations with regard to speed of trains and other precautions. — A state may regulate, at least, in the absence of congressional action upon the same sub- ject matter, the manner in which inter- state trains shall approach dangerous crossings, the signals which shall be given, and the control of the trains which shall be required under such circum- stances. Southern R. Co. v. King, 217 U. S. 524, 54 L. Ed. 868, 30 S. Ct. 594, affirm- ing judgment (1908), 160 F. 332, 87 C. C. A. 284. Hours of labor of employees. — As to the power of the state to legislate with respect to the hours of labor of employees engaged in the movement of interstate trains, even though such trains are en- gaged also in the movement of local traffic, see ante, "Hours of Labor," 11, A, 1, b, (3), (b), dd, (cc 1-2), ddd. Equipment of trains — Number required in train crew, etc. — Congress, in its dis- cretion, may take entire charge of the whole subject of the equipment of inter- state cars, and establish such regulations as are necessary and proper for the pro- tection of those engaged in interstate commerce. But it has not done so in respect to the number of employees to whom may be committed the actual man- agement of interstate trains of any kind. It has not established any regulations on that subject, and until it does, the statutes of the state, not in their nature arbitrary, and which really relate to the rights and duties of all within the jurisdiction, must control. Chicago, etc., R. Co. v. Arkansas, 219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275. Prescribing a minimum of three brake- men for freight trains of more than twenty-five cars, operated in the state, as IS done by Laws Ark. 1907, No. 116, does not amount to an unconstitutional regula- tion of interstate commerce when applied to a foreign company engaged in such commerce. Chicago, etc., R. Co. v. Ar- kansas, 219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275, affirming 86 Ark. 312, 111 S W 456. 419-20. Requiring interstate trains to stop at certain stations. — When an order made under state authority to stop an in- terstate train is assailed because of its re- pugnancy to the interstate commerce clause, the question whether such order is void as a direct regulation of such com- merce may be tested by considering the nature of the order, the character of the interstate commerce train to which it ap- plies, and its necessary and direct effect upon the operation of such train. But the effect of the order as a direct regulation of interstate commerce may also be tested by considering the adequacy of the local facilities existing at the station or stations at which the interstate commerce train has been commanded to stop. Atlantic, etc., R. Co. v. Wharton, 207 U. S. 328, 52 L. Ed. 230. 234, 28 S. Ct. 121. The extent of the right to control through interstate transportation of pas- sengers by state legislation, or under or- ders of a commission authorized by the state, has been recently before the federal supreme court. ]\IIssissippi R. Comm. v. Illinois Cent. R. Co., 203 U. S. 335, 51 L. Ed. 209, 27 S. Ct. 90; Atlantic, etc., R. Co. V. Wharton, 207 U. S. 328, 52 L. Ed. 230, 28 S. Ct. 121. The principle to be deduced from these cases is, that where a railroad company has already provided ample facilities for the adequate accommodation of the travel- ing public, such as may be proper and reasonable at any given point, and oper- ates interstate cominerce trains, carry- ing passengers, through the same places, at which such interstate trains do not stop, a state regulation which requires the 12 U S Enc— 47 737 422 INTERSTATE, ETC., COMMERCE. Vol. VII. (j) Regulations ivith Respect to Liability of Carriers — bb. Liability beyond Carrier's Own Lines. — See ante, "In General," II, A, 2, d, (23), (c), aa. cc. Penalising Delay in Settlement of Claims. — A state law which penalizes the failure to adjust and pay within a specified time claims for loss or damage to goods by carriers while in their possession is not an unlawful interference with mterstate commerce, even as applied to an interstate shipment. In so far as it may affect interstate commerce, it is an aid thereto by its tendency to promote safe and prompt delivery of goods, or its legal equivalent, prompt settlement of proper claims for damages. -^^ (k) Rights and Privileges of Passengers — bb. Equal, but Separate, Accom- modations for White and Colored Passengers. — See ante, Civii. Rights, p. 236. See, also, ante, "Ecjual Accommodations to Passengers," II, A, 1, b, (3), (b), dd, (cc). (1) Facilities for Transportation. — See note 31. stopping of such interstate trains, in ad- dition to ample facilities already provided, to the detriment and hinderance of inter- state traffic, is an unlawful regulation and burden upon interstate commerce. Hern- don V. Chicago, etc., R. Co.. 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633. An order made under state authority, requiring a railroad company to stop on signal two of its through fast mail trains running between Jersey City, New Jersey, and Tampa, Florida, at a small town in South Carolina which is also the junction point with a small branch road, is void as a direct regulation of interstate commerce, where, in addition to several local trains daily, the residents of such town are fur- nished daily one slower through train each way. Judgment, Railroad Com'rs v. Atlantic Coast Line R. Co. (1906), 54 S. E. 224, 74 S. C. 80, reversed Atlantic, etc., R. Co. V. Wharton, 207 U. S. 328, 52 L. Ed. 230, 28 S. Ct. 121. The requirement that passenger trains shall stop at all junction points of other roads, which is made by Act Mo. March 19, 1907 (Laws 1907, p. 185), amending Rev. St. Mo. 1899, § 1075 (Ann. St. 1906, p. 923), amounts to an unnecessary and unlawful burden upon interstate commerce if such requirement is construed to neces- sitate the stoppage of through interstate trains for the transfer of passengers from one road to another, when ample facilities for the traveling public are already pro- vided, and severe detriment and hindrance to interstate traffic will result. Herndon V. Chicago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633; Roach v. Atchi- son, etc., R. Co., 218 U. S. 159, 54 L. Ed. 978, 30 S. Ct. 639. Affirming decree Chi- cago, R. L & P. Ry. Co. V. Swanger (C. C. 1908), 157 F. 783. This Statute Act Mo. March 19, 1907 (Laws 1907, p. 185). Amending Rev. St. Mo. 1899, § 1075 (Am. St. 1906, p. 923), is not of that class passed in the exercise of the police power of the state for the pro- motion of the public safety, and requiring the stoppage of trains by one railroad be- fore crossing the tracks of another rail- road; this statute, as its second section shows, was passed for the purpose of pro- viding greater facilities of travel, and not for the protection of life and limb. Hern- don V. Chicago, etc., R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633. 422-28a. Penalizing delay in settlement of claims. — Atlantic, etc., R. Co. v. Maz- ursky, 216 U. S. 122, 54 L. Ed. 411, 30 S. Ct. 378. Penalizing the failure to adjust and pay within a specified time claims for loss or damage, as is done by Act S. C. Feb. 33, 1903 (24 St. at Large,"p. 81), § 2, does not unlawfully interfere with interstate' com- merce, even as applied to shipments from without the state, where the statute is construed by the state courts as affecting only the liability of carriers doing busi- ness in the state, for property lost or dam- aged while in their possession. Atlantic, etc., R. Co. V. Mazursky, 216 U. S. 122, 54 L. Ed. 411, 30 S. Ct. 378, affirming judg- ments. Charles v. Atlantic Coast Line R. Co., 58 S. E. 927; McTeer v. Southern Express Co., 58 S. E. 930; Mazursky v. At- lantic Coast Line R. Co., 58 S. E. 931; Von Lehe v. Atlantic Coast Line R. Co., 59 S. E. 1135. 422-31. Adequate facilities for trans- portation — Equal accommodations. — Com- pelling a carrier by mandatnus to dis- charge its common-law duty to treat all shippers alike by resuming the transfer of cars loaded and unloaded between the line of a connecting carrier and the flour mill and elevator of a particular shipper is not beyond the power of the state court, at least, until congress or the interstate com- merce commission takes specific action, although both carriers are engaged in in- terstate commerce, and three-fifths of the output of the mill are shipped out of the state. Judgment (1906) Larabee Flour Mills Co. V. Missouri Pac. Ry. Co., 88 P. 72, 74 Kan. 808, affirmed. Missouri Pac. R. Co. V. Larabee Flour Mills Co., 211 U. ' S. 612, 53 L. Ed. 352, 29 S. Ct. 214. Regulations of American Railway As- 738 \'ol. MI. INTERSTATE, ETC., COMMERCE. 423 in) Regulating Relation of Master and 5^rz'a«^— Employers' Liability Acts. — The laws of the several states are determinative of the HabiHty of em- ployers engaged in interstate commerce for injuries received by their employees while engaged in such commerce so long as congress, although empowered to regulate that subject, has not acted thereon, because the subject is one which falls within the police power of the states in the absence of action by congress/''^^ sociation — Fairness and sufficiency. — Power to determine the validity and suf- ficiency of the rules and' regulations of the American Railwaj'- Association v.'ith respect to matters of interstate commerce, which rules govern ninety per cent of the railroads, and hence a vast proportion of the interstate commerce of the country, is vested primarily in congress and in the interstate commerce commission and, is not to be tested by state laws or by deci- sions of the state courts. St. Louis, etc., R. Co. V. Arkansas, 217 U. S. 136, 54 L. Ed. 698, 30 S. Ct. 476. Same — Interchange of cars — Penalty for failure to supply cars on demand. — For example the validity and sufficiency of the rules of such association w^ith the respect of the interchange of cars by roads en- gaged in interstate commerce is a ques- tion which can not be tested bj^ the deci- sions of state courts nor by state laws; and a state law which undertakes to com- pel the roads within the state to supply cars .to shippers on demand under very heavy penalties in case of failure to do so, thereby putting the road in the position of having to pay such penalties or with- draw large numbers of its cars from the uses of interstate commerce and from in- terchange of cars with interstate roads in accordance with the rules of the Ameri- can Railway Association, is unconstitu- tional as burdening interstate commerce. St. Louis, etc., R. Co. v. Arkansas, 217 U. S. 136, 54 L. Ed. 698, 30 S. Ct. 476. Interstate commerce is unconstitution- ally regulated by Kirby's Dig. Ark., §§ 6803, 6804, making it the carrier's duty to supply cars to shippers on demand, under which a carrier will either be compelled to desist from the interchange of cars with connecting lines for the purpose of mov- ing interstate commerce because of a re- fusal of the state courts to permit it to avail itself, as causing and excusing its de- fault, of the rules and regulations adopted for the interchange of cars by the Ameri- can Railway zAssociation, which govern 90 per cent of the railways in the United States, or will be obliged to conduct such business with the certainty of being sub- jected to the heavy penalties provided by the statute. Judgment (1907), 107 S. W. 1180, 85 Ark. 311, 122 Am. St. Rep. 33, re- versed. St. Louis, etc., R. Co. v. Arkan- sas, 217 U. S. 136, 54 L. Ed. 698, 30 S. Ct. 476. Requiring additional train service. — In- terstate commerce is not directly bur- dened, in violation of the federal constitu- tion, by an order of a state railroad com- mission, directing an interstate railway company to discharge its, corporate duty by afitording passenger train service be- tween the terminus of a branch line with- in the state and the point of intersection with the state line, although, to avoid the useless expense of establishing terminal facilities at that point, the passenger serv- ice directed by the order must be operated not only to the state line, but some 20 miles beyond, where such facilities do ex- ist. Judgment, State v. Missouri Pac. Ry. Co. (1907), 92 P. 606, 76 Kan. 467, affirmed. ]\Iissouri Pac. R. Co. v. Railroad Comm., 216 U. S. 262, 54 L. Ed. 492, 30 S. Ct. 330. Requiring trains to stop at certain sta- tions. — See ante, "Requiring Trains to S'top at Certain Stations,'' II, A, 2, d, (23), (i). J 423-35a. Regulating relation of master and servant — Employers' Liability Acts. — Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. See, also, ante, "Employers' Liability Acts," 11, A, 1, b, (3), (b), dd, {cc^A), eee. See, also, ante, CONSTITUTIONAL LAW, p. 264; FELLOW SERVANTS, p. 579; post, MASTER AND SERVANT: PO- LICE POWER. Appljnng to interstate transportation the provisions of Act Pa. April 4, 1868, restricting, as against a railway company', the rights of persons injured in the course of their employment in or about the rail- road to those which an employee of the railway company would have under like circumstances, does not make such stat- ute repugnant to the commerce clause of the federal constitution. Judgment (1905), 76 N. E. 1129, 72 Ohio St. ""659. affirmed. Martin v. Pittsburg, etc., R. Co., 203 U. S. 284, 51 L. Ed. 184, 27 S. Ct. 100. Nebraska statute modifying rules as to comparative and contributory negligence. — Until congress acted in the matter, there was no repugnancy to the commerce clause of the federal constitution in the provisions of Neb. Comp. Stat., chap. 21, § 4, under which the contributory negli- gence of a railway employee injured while engaged in interstate commerce did not bar a recovery from the company, where his negligence was slight and that of the company was gross in comparison, the damages being diminished in proportion to the amount of negligence attributable to the injured employee. Missouri Pac. r39 423-424 INTERSTATE, ETC., COMMERCE. Vol. VII. Power of Congress to Supersede State Law. — The inaction of congress, however, in nowise affects its power over the subject, and where congress has acted, the law of the state, in so far as it covers the same field, is superseded, since that which is not supreme must yield to that which is.^^'' Hours of Labor of Employees. — As to the power of a state to legislate concerning the hours of labor of employees engaged in the operation of trains carrying both local and interstate freight since the enactment of the Act of March 4, 1907, c. 2939, 34 Stat. 1415 (U. S. Comp. St., Supp. 1909, p. 1170), see ante, "Hours of Labor," 11, A, 1, b, (3), (b), dd, ^cj^), ddd. (24) Sale of Goods. — See note 36. (25) Telegraph Companies — (a) In General. — See post. Telegraphs and Telephones. (b) Buildings, Poles and Wires. — See post, Licenses; Police Power; Tele- graphs AND Telephones. (c) Transmission and Delivery of Messages- — aa. In General. — See note 43. R. Co. V. Castle, 224 U. S. 541, 56 L. Ed. 875, 32 S. Ct. 606. Since, at the time the plaintifif received the injuries complained of, there was no subsisting legislation by congress affect- ing the liability of railway companies to their employees, under the conditions shown in this case, the state was not de- barred from thus legislating for the pro- tection of railway employees engaged in interstate commerce. Missouri Pac. R. Co. V. Castle, 224 U. S. 541. 56 L. Ed. 875, 32 S. Ct. 606. See Second Employers' Lia- bility Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169; Chicago, etc., R. Co. v. Solan, 169 U. S. 133, 42 L. Ed. 688, 18 S. Ct. 280. The validity of Neb. Comp. Stat., chap. 21, §§ 3, 4, in so far as they impose lia- bility upon a railway company for an in- jury to an employee engaged in interstate commerce, arising from the negligence of a coemployee, and modify the rule of contributory negligence, is not affected because such statute also covers subjects dealt with by the Safety Appliance Act of March 2, 1893 (27 Stat, at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), such as acts of negligence of rail- way companies in respect of their cars, roadbed, machinery, etc. Missouri Pac. R. Co. V. Castle, 224 U. S. 541, 56 L. Ed. 875, 32 S. Ct. 606. 423-35b. Power of congress to super- sede state law. — Second Employers' Lia- bility Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169. 423-36. Sale of goods — In general. — See, generally, ante, "When Protection Ceases," I, A, 4, b; "Intoxicating Liquors," II, A, 2, d, (17). Forbidding sale except in original pack- ages. — Tlie use of the words "original packages" in Laws Kan. 1907, c. 250, mak- ing it unlawful to sell, offer for sale, or deliver black powder for use in any coal mines in the state except in original sealed packages containing_ 12^^ pounds of powder, does not necessitate the con- clusion that the statute prohibits the im- portation of black powder from other states in other than 12^-pound pack- ages. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137, affirming or- der (1908), Ex parte Williams, 98 P. 777, 79 Kan. 212. 424-43. Transmission and delivery of messages — Messages to be delivered in other states — Failure to promptly trans- mit within the state. — A state statute un- der which a penalty is incurred by a tele- graph company which negligently fails to transmit within the state (i. e. the de- lay occurring within the state) as promptly as practicable a message re- ceived at an office in the state, for trans- mission to a person in another state, is a valid exercise of the power of the state, in the absence of any legislation by con- gress on the subject. Western Union Tel. Co. V. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 S. Ct. 399. The requirement of the Virginia stat- ute as here applied is a valid exercise of the power of the state, in the absence of legislation by congress. It is neither a regulation of, nor a hindrance to, inter- state commerce, but is in aid of that com- merce. This case is clearly governed by Western Union Tel. Co. v. James, 162 U. S. 650, 40 L. Ed. 1105, 16 S. Ct. 934; and Western Union Tel. Co. v. Commercial Milling Co., 218 U. S. 406, 416, 54 L Ed. 1088, 31 S. Ct. 59, both above cited. West- ern Union Tel. Co. v. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 S. Ct. 399. The imposition of a penalty for the pur- pose of enforcing the statute was plainly within the legislative power of the state, if the act was otherwise valid. Western Union Tel. Co. v. Crovo, 220 U. S. 364, 55 L. Ed. 498, 31 S. Ct. 399; Ling Su Fan V. United States, 218 U. S. 302, 306. 54 L. Ed. 1049, 31 S. Ct. 21. Forbidding stipulations limiting liability for failure to deliver. — Interstate com- merce is not unconstitutionally regulated by a state statute under wliich, as con- strued by the state courts, a telegraph 740" Vol. VII. INTERSTATE, ETC., COMMERCE. 433 (e) Taxation. — See post, ante, "Taxation and Licenses,"' II, A, 2, d, (12), (i), et seq. ; "State Taxation," III, et seq. (f) Charge for Poles Placed in Streets. — See ante. Constitutional Law, p. 264; post. Licenses; Police Power; Telegraphs and Telephones. (g) Fees to Defray Expense of Local Inspection and Supervision. — See ante, Constitutional Law, p. 264; Licenses; Police Power; Telegraphs and Tel- ephones. (29) State Pure Food Laws. — It is within the power of a state — assuming that there is no conflict with federal legislation — in the exercise of its police power, to require the disclosure of the ingredients contained in the foreign made feeding stuffs offered for sale in the state, and to provide for their inspection and analysis. Thus the power to prevent fraud and deception in the sale of pre- pared foods for live stock is clearly within the police power of the state, even though they are in the original packages as imported from another state ; and in the absence of conflicting legislation by congress, the state may enact a law pro- viding for the inspection of such commodities sold within the state and compel the payment of a sufficient fee to cover the cost of inspection and stamps re- quired by the act.^^'^ And such an act is not rendered unconstitutional as an interference v/ith interstate commerce, and as depriving the manufacturers of such products of their property without due process of law because of a further provision as to labels upon each package showing a statement of the ingredients and the minimum percentage of crude fat and crude protein and of the maxi- mum percentage of crude fiber, but which are not required to disclose the man- ufacturers' secret processes, formulas, nor manner of combination.^^^ company can not limit its liability for its negligent failure to deliver a telegram ad- dressed to a person in another state. Such a statute is a valid exercise of the police power enacted in aid of interstate com- merce and does not burden it. Western Union Tel. Co. v. Commercial Milling Co., 218 U. S. 406, 54 L. Ed. 1088, 31 S. Ct. .59. 4.33-81a. State pure food laws— Power to enact, in general. — Savage v. Jones, 225 U. S. 501, 528, 56 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. 7'. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784. 433-81b. Same — Provision as to labels showing ingredients. — Savage v. Jones, 225 U. S. 501. 56 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784. Indiana statute considered. — The pro- hibition against sales by importing pur- chasers of concentrated commercial feed- ing stuffs in the original packages, which is made in Ind. Acts 1907. chap. 206, un- less there be compliance with its require- ments as to inspection and analysis, and the disclosure of the ingredients, includ- ing the minimum percentage of crude fat and crude protein, and the maximum per- centage of crude fiber, and its incidental provisions for the filing of a certificate, tor registration, and for labels and stamps, is a proper exercise of the pol'cc power of the state, and not an unconstitutional regulation of interstate commerce. Sav- age V. Jones, 225 U. S. 501, 56 L. Ed. 11S2, 32 S. Ct. 715. It can not be doubted that, within the principle of these decisions, and of the others above cited, the state of Indiana, assuming for the present that there was no conflict with federal legislation, was entitled, in the exercise of its police power, to require the disclosure of the ingredients contained in the feeding stuffs offered for sale in the state, and to provide for their inspection and analysis. The provisions for the filing of a certifi- cate, for registration and for labels, were merely incidental to these requirements, and were appropriate means for accom- plishing the legitimate purpose of the act. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 1193, 32 S. Ct. 715. An inspection charge of 80 cents per hundred for stamps to be affixed to pack- ages of concentrated commercial feeding stuffs, made by Ind. Laws 1907, chap. 206, is not on its face so unreasonably in excess of the cost of analysis, salaries of officials, and other necessary expenses, as to invalidate the statute, when applied to sales by importers in the original pack- ages. Savage i\ Jones. 225 U. S. 501, 56 L. Ed. 1182. 32 S. Ct. 715. Same — Conflict with federal food and drugs act. — The question remains whether the statute of Indiana is in conflict with the act of congress known as the Food and Drugs Acts of June 30, 1906. For the former, so far as affects interstate com- merce even indirectly and incidentally, 741 433 INTERSTATE, ETC., COMMERCE. Vol. VII. (30) Natural Gas. — See ante, "Prohibiting or Impeding Exportation," II, A, 2, d, (8), (b). And see post, PoucE PowKR. (31) Diverting U aters of Stream into Another State. — See ante, "Prohibit- ing or Impeding Exportation,'' II, A, 2, d, (8), (b). And see post, PoucE Power. can have no validity if repugnant to the federal regulation. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 1193, 33 S. Ct. 715; Reid v. Colorado, 187 U. S. 137, 147, 47 L. Ed. 108, 23 S. Ct. 92. The object of the Food and Drugs Act is to prevent adulteration and misbrand- ing, as therein defined. It prohibits the introduction into any state from any other state "of any article of food or drugs which is adulterated or misbranded, w^ithin the meaning of this act." The pur- pose is to keep such articles "out of the channels of interstate commerce, or, if they enter such coinmerce, to condemn them while being transported or when they have reached their destinations, pro- vided they remain unloaded, unsold, or in original unbroken packages." Savage V. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. 715; Hinolite Egg Co. v. United States, 220 U. S. 45, 54. 55 L. Ed. 364, 31 S. Ct. 364. Applying these established principles to the present case, no ground appears for denying validity to the statute of In- diana. That state has determined that it is necessary, in order to secure proper protection from deception, that purchasers of the described feeding stuffs should be suitably informed of what they are Ijuying, and has made reasonalile pro- visions for disclosure of ingredients by certificate and label, and for inspection and analj^sis. The requirements of which the bill seeks to enjoin, are not in any way in conflict with the provisions of the federal act. They may be sustained with- out impairing in the slightest degree its operation and effect. There is no question here of conflicting standards, or of op- position of state to federal authority. Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182," 32 S. Ct. 715. See, also, ante, "Where Congress Has Not Occupied the Full Sphere of Its Jurisdiction," II, A, 2, b, (3); post, "Pure Food and Drugs Act," V. Iowa pure food law considered. — The Standard Stock Food Company, a Ne- braska corporation, brought this suit against the state food and dairy cominis- sioner of Iowa to restrain the enforce- ment of a statute of Iowa, effective July 4, 1907 (Code of Iowa, Supplement 1907, §§ 5077-a6 — 5077-a24), relating to the sale within the state of "conceu-trated com- mercial feeding stuffs," upon the ground that it was repugnant to the interstate commerce clause (§ 8, art. 1), and to the fourteenth amendment of the constitution of the United States. The appellant chal- lenges the constitutional validity of the statute in these two particulars: (l) The requirement that the name and per- centage of the diluent or diluents or bases shall be stated, and (2) the exaction of the fee of $100. The case in its essen- tial features is not to be distinguished from that of Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. 715, and nothing need be added to what was there said, it was competent for the state, in the exercise of its power to prevent im- position upon the public, to require the disclosure to which objection is made. The provision was not an unreasonable one and the effect upon interstate com- merce was incidental only. Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784; Plumley v. Massachusetts, 155 U. S. 461, 39 L. Ed. 223, 15 S. Ct. 154; Hennington v. Geor- gia, 163 U. S. 299, 317, 41 L. Ed. 166, 16 S. Ct. ]086; Missouri, etc.. R. Co. v. Haber, 169 U. S. 613, 42 L. Ed. 878, 18 S. Ct. 488; Patapsco Guano Co. v. North Carolina Board, 171 U. S. 345, 361, 43 L. Ed. 191, 18 _S. Ct. 862. The requirement that the name and percentage of the diluent or diluents or Ijascs shall be stated in the labels, which is made by Iowa Code (Supp. 1907, §§ 5077-aG— 5077-a24), relating to the sale within tlic state of concentrated commer- cial feeding stuffs, is a proper exercise of the police pov.'cr of the state, and does not, as applied to sales by importers in the original packages, amount to an un- constitutional regulation of interstate commerce. Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784. The imposition by Iowa Code (Supp. 1907, §§ 5077-a6— 5077-a24), governing the inspection and analysis of concen- trated cominercial feeding stuffs, of an inspection fee of 10 cents per ton on such products when sold or offered for sale within the state, or the exaction, in lieu thereof, in the case of "condimental, patented, proprietary, or trademark stock or poultry foods," of an annual license fee of $100, does not render the statute invalid as applied to sales by importers in the original packages. Standard Stock Food Co. V. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784. The statute (Code of Iowa, Supp. 1907, §§ 5077-a6 — 5077-a24) must be considered as an inspection law which it was within the power of the state to enact, and that (42 Vol. VII. INTERSTATE, ETC., COMMERCE. 433 iZ2) Lazes for Enforcement of Debts; Interference through Judicial Process. — ^The laws of the states for the enforcement of debts and the federal laws which permit or enjoin continuity of transportation are not so far incompatible that the provisions of the latter must be construed as displacing the former.si'^ Attachment and Garnishment Laws. — "It is very certain that when con- gress enacted the interstate commerce law it did not intend to abrogate the at- tachment laws of the states. It is also certain that there is no conscious purpose in the laws of the states to regulate, directly or indirectly, interstate commerce. We may put out of the case, therefore, as an element an attempt of the state to exercise control over interstate commerce in excess of its power."^!"^ (33) Brokerage and Commission Business; Dealing in Futures, etc. — See ante, "Contracts Incidentally Affecting Commerce ; Brokerage and Commission Contracts," I, A, 3, 1. (34) Disorderly Houses. — As to harboring an alien woman for immoral pur- poses, see ante, "Immigration," II, A, 1, b, (3), (b), jj. e. Remedy against Illegal State Interference. — An injunction will lie against state officers attempting to enforce state legislation which is unconstitutional as an unwarranted interference with interstate commerce. Such legislation being its fair import is that the fees exacted by § 5, are for the purpose of meeting- the expenses of inspection. The bill alleges no facts warranting the conclusion that the charge is unreasonable as compared with this expense. Standard Stock Food Co. V. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784; Patapsco Guano Co. V. North Carolina Board, 171 U. S. 345, 361, 43 L. Ed. 191, 18 S. Ct. 862; McLean & Co. V. Denver, etc.. R. Co., 203 U. S. 38, 50, 51 L. Ed. 78, 27 S. Ct. 1; Red "C" Oil Mfg. Co. V. Board, 222 U. S. 380, 393, 56 L. Ed. 240, 32 S. Ct. 152; Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 S. Ct. 715. Same — Conflict with federal Food and Drugs Act. — There is no conflict between the provisions of the Food and Drugs Act of June 30. 1906 (34 Stat, at L. 768, chap. 3915. U. S. Comp. Stat. Supp. 1911. p. 1354), for the prevention of the adultera- tion and misbranding of foods and drugs when the subject of interstate commerce, and the requirement of Towa Code (Supp. 1907, §§ 5077-a6— 5077-a24), a.s applied to sales by importers in the original pack- ages, that there shall be stated in the labels on concentrated commercial feed- ing stuffs offered for sale in the state the name and percentage of the diluent or diluents or bases. Standard Stock Food Co. V. Wright. 225 U. S. 540. 56 L. Ed. 1197, 32 S. Ct. 784. 433-81C. Laws for enforcement of debts — Interference through judicial process. — Davis c'. Cleveland, etc., St. R. Co, 217 U. S. 157. 54 L. Ed. 708, 30 S. Ct. 463. 433-81d. Attachment and garnishment acts. — Davis v. Cleveland, etc., St. R. Co., 217 U. S. 157, 177, 54 L. Ed. 70S, 30 S. Ct. 463. Cars of foreign railway company sub- ject to attachment. — Cars owned by a foreign railway company, which have tem- porarily come into the state in the course of interstate transportation, through the agency of other carriers, are subject to attachment under the state laws, despite ihe provisions of the interstate commerce act and of Rev. St., § 5258 (U. S. Comp. St. 1901, p. 3564), securing continuity of transportation. Davis v. Cleveland, etc., St. R. Co., 217 U. S. 157, 54 L. Ed. 708, 30 S. Ct. 463. "The interference with interstate com- merce by the enforcement of the attach- ment laws of a state must not be ex- aggerated. It can only be occasional and • temporary. The obligations of a rail- road company are tolerably certain, and provisions for thein can be easily made. Their sudden assertion can be almost in- stantly met; at any rate, after short de- lay, and without much, if any, embarrass- ment to the continuity of transportation. However, the pending case does not call for a very comprehensive decision on the subject. We only decide that the cars situated as this record tends to show that "'^ey were then attached, and the amounts due from the garnishee companies to the C. C. C. & St. L. Ry. Co., were not ex- empt from process under the state laws, and that the court had, therefore, juris- diction of them, and through them of the C. C. C. & St. L. Rv. Co." Davis v. Cleve- land, etc.. St. R. Co., 217 U. S. 157, 54 L. Ed. 708, 30 S. Ct. 463. Garnishment of freight balances.— Sums due to a foreign railway carrier from other carriers as the forme.'-'s share of freight on interstate shipments may be garnisiied under the state laws, despite the provisions of the Interstate Commerce .^ct and of Rev. St., § 5258 (U. S. Comp. St. 1901, p. 3564), securing continuity of transportation. Davis v. Cleveland, etc., St. R. Co., 217 U. S. 157, 54 L. Ed. 708, 30 S. Ct. 463. r43 433-436 INTERSTATE, ETC., COMMERCE. Vol. VII. invalid, is a protection to no one, and state officials seeking to enforce it can not claim immunity from suit on the ground that the action is against the state.si'^ B. Internal or Intrastate Commerce. — See, generally, ante, "Interstate and Foreign Commerce Defined," I, A, 1, b; "Internal or Intrastate Commerce," I, B; "Employers' Liability Acts," II, A, 1, b, (3), (b), dd, (cc>^), eee. 1. Power of Congress — a. In General. — See note 82. 2. Power of States — a. In General. — See note 95. b. Regulation of Particular Matters. — See note 97. 433-81e. Remedy against illegal state interference. — Railroad Comm. v. Worth- ington, 225 U. S. 101, 56 L. %A. 1004, 32 S. Ct. 653; Savage v. Jones, 225 U. S. 501, 520, 56 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784; General Oil Co. v. Crain, 209 U. S. 211, 52 L. Ed. 754, 28 S. Ct. 475. See, also, the title DUE PROCESS OF LAW, vol. 5, p. 676, et seq. Illustrations. — An order made by a state commission under assumed authority of a state, which directly burdens or regulates interstate commerce, will be en- joined. Railroad Comm. v. Worthington, 225 U. S. 101, 56 L Ed. 1004, 32 S. Ct. 653, following McNeill v. Southern R. Co., 202 U. S. 543, 50 L. Ed. 1142, 26 S. Ct. 722. Foreign manufacturers, selling to im- porting purchasers, are entitled to in- junctive relief against state officials to prevent the enforcement of the unlawful demands of the state and to prevent un- lawful state interference with the right of such purchasers to sell in the original package. Savage v. Jones, 225 U. S. 501, 520, 56 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L. Ed. 1197, 32 S. Ct. 784. An attack upon the right of the import- ing purchasers to sell in the original packages bought from foreign manufac- turers, not only would be to the prejudice of such manufacturers, but inevitably would inflict injury upon them by reduc- ing their interstate sales; and if the stat- ute, as applied to sales by importing pur- chasers in the original packages, con- stitutes an unwarrantable interference with interstate commerce in the products of such foreign manufacturers, they have a standing to complain, and are entitled to injunctive relief against enforcement by the defendant state officers of the il- legal demands. Savage v. Jones, 225 U. S. 501, 520, 56 L. Ed. 1182, 32 S. Ct. 715, followed in Standard Stock Food Co. v. Wright, 225 U. S. 540, 56 L Ed. 1197, 32 S. Ct. 784. See also, Scott v. Donald, 165 U. S. 107, 112, 41 L. Ed. 648; Ex parte Young. 209 U. S. 123, 160, 52 L. Ed. 714, 28 S. Ct. 441; Ludwig v. Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280; Hopkins v. Clemson Agricul- tural College. 221 U. S. 636, 645, 55 L. Ed. 890, 31 S. Ct. 654; Philadelphia Co. v. Stimson, 223 U. S. 605, 621, 56 L. Ed. 570, 32 S. Ct. 340. A decision of a state court dismissing, on the ground that the suit was one against the state, and therefore not within its jurisdiction, a bill which seeks to en- join a state oil inspector from enforcing a state inspection law, on the theory that such law, if applied to the oils in con- troversy, violates the commerce clause of the federal constitution, gives effect to such law, and is reviewable by the su- preme court of the United States. Gen- eral Oil Co. V. Crain, 209 U. S. 211, 53 L. Ed. 754. 28 S. Ct. 475. 433-82. Power of congress as to in- trastate commerce. — The federal power of regulation within the states is limited to the right of congress to control transac- tions of interstate commerce; it has no authority to regulate commerce wholly of a domestic character. El Paso, etc., R. Co. V. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. Same — As to fisheries — Exclusion of sponges. — As to the power of congress with respect to fisheries in state terri- torial waters, and particularly the power to exclude sponges taken within state territorial limits, see ante, "Exclusion of Imports — Establishment of Standards," II, A, 1, b, (3), (b), hh. Same — Employers' liability acts. — As to employers' liability acts, see ante, "Em- ployers' Liability Acts." II, A, 1, b, (3), (b), dd, (cc i/<), eee; post, "Commerce in Territories and Places under Exclusive Federal Control," II, D. 436-95. Terms and conditions upon which commerce carried on. — It may be stated as a general rule that an act vvhich puts in one class all engaged in business of a special and public character, requires of them the performance of a dutj^ which they can do better and more quickly than others, and imposes a not exorbitant pen- alty for a failure to perform that duty within a reasonable time, can not be ad- judged unconstitutional as a purely arlM- trary classification. Seaboard Air Line Railway v. Seegers, 207 U. S. 73, 52 L Ed. 108, 28 S. Ct. 28. 436-97. Regulation of particular matters — Enforcing prompt payment of claims. — Common carriers are not denied the equal protection guaranteed by Const. U. S. Amend. 14, by the provisions of Act S. C. Feb. 23, 1903, p. 81, § 2, requiring them 744 Vol. VII. I XT ERST ATE, ETC., COMMERCE. 437 C. Commerce with Indian Tribes — 1. Power of Congress — b. Nature and Extent of Pozcer — (1) In General. — Congress has power to regulate com- merce with the Indian tribes, and such power is superior and paramount to the authority of any state within whose limits are Indian tribes. ^^ It has been held, however, that where fundamental principles of the constitution are of equal dig- nity, neither must be so enforced as to nullify or substantially impair the other,**'' Therefore, in regulating commerce with Indian tribes congress must have regard to the general authority which the state has over all persons and things within its jurisdiction. On the other hand, the authority of the state can not be so exerted as to impair the power of congress to regulate commerce with the Indian tribes.^"^ Reservations and Regulations in Acts Creating New States.— It may well happen that congress should embrace in an enactment introducing a new state into the Union legislation intended as a regulation of commerce among the states, or with Indian tribes situated within the limits of such new state, or reg- ulations touching the sole care and disposition of the public lands or reservations therein, which might be upheld as legislation within the sphere of the plain power of congress. But in every such case such legislation would derive its force not from an agreement or compact with the proposed new state, nor by reason of its acceptance of such enactment as a term of admission, but solely because the power of congress extended to the subject, and therefore would not operate to restrict the state's legislative power in respect of any matter which was not plainly within the regulating power of congress.^*^ And it is as clearly consistent with the constitution to maintain in force an existing act of congress relating to such traffic and intercourse, so that it shall continue effective within the limits of the new state, as it is to reserve the right to enact new laws in the future upon the same subject matter. ^'^ Same — Equality of the States upon Admissions. — See ante. Constitu- tional Law, p. 264. (2) Particular Regulations — (a) Liquor Traffic. — The power of congress to regulate commerce between the states, and with Indian tribes situate within the to adjust and pay every claim for loss or thoritj- of congress to legislate in the fu- damage to an intrastate shipment within ture respecting the Indians residing within 40 days after the filing of a claim, under the new state, is w'ithin the constitutional penalty of $50 for each failure or refusal, power of congress to regulate commerce where there can be no award of a penalty with the Indian tribes. Ex parte Webb, under the statute unless there is a recov- 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769. ery of the full amount claimed. Judgment, "The reservation of the authority of Seegers Bros. v. Seaboard Air Line Ry. congress to legislate in the future respect- (1905), 52 S. E. T97, 73 S. C. 71, affirmed. ing the Indians residing within the new Seaboard Air Line Railway z'. Seegers, state is clearly supportable under the fed- 207 U. S. 73, 52 L. Ed. 108, 28 S. Ct. 28. eral constitution, art. 1, § 8, which con- 437-8a. Commerce with Indian tribes — fers upon congress the power 'to regulate Power of congress paramount to au- commerce with foreign nations, and thority of state. — Dick z. United States, among the several states, and wnth the 208 U. S. 340, 353, 52 L. Ed. 520, 28 S. Ct. Indian tribes.' It has been repeatedly 399. held by this court that under this clause 437-8b. But fundamental principles not traflic or intercourse with an Indian tribe to impair each other. — Dick z\ United or with a member of such a tribe is sub- States. 208 U. S. 340, 353, 52 L. Ed. 520, ject to the regulation of congress, al- 28 S. Ct. 399. though it be within the limits of a state. 437-8C. Same — States and congress each United States v. Holliday, 3 Wall. 407, to regard the just powers of the other.— 418, 18 L. Ed. 182; United States v. 43 Dick V United States. 208 U. S. 340, 353, Gallons of Whiskey, 93 U. S. 188, 197, 23 52 L. Ed. 520, 28 S. Ct. 399. L. Ed. 846; Dick r. United States. 208 U. 437-8d. Reservations and regulations in S. 340, 52 L. Ed. 520, 28 S. Ct. 399. and acts creating new states. — Ex parte Webb, cases cited." Ex parte Webb, 225 U. S. 2''5 U S 6G3, 56 L. Ed. 1218, 32 S. Ct. 663, 56 L. Ed. 1248, 32 S. Ct. 769. 769- quoting, Coyle v. Smith, 221 U. S. 437-8e. Congress may contmue existmg 559.' 55 L. Ed. 853, 31 S. Ct. 688. act in force.— Ex parte Webl>, 225 U. S. The reservation in the Oklahoma En- 663, 56 L. Ed. 1248, 32 S. Ct. 769. abling Act of June 16, 1906, § 1, of the au- 745 438 INTERSTATE, ETC., COMMERCE. Vol. VII. limits of a state, justifies congress when creating a new state out of territory in- habited by Indian tribes, and into which territory the introduction of intoxicating liquors is by existing laws and treaties prohibited, in so legislating as to preserve those laws and treaties in force to the extent of excluding interstate traffic in in- toxicating liquors that would be inconsistent with the prohibition. ^^^ And even where such stipulations are not embodied in an enabling act, such act is to be read in the light of the continuing power of congress to enact regulations for the con- trol of commerce with the Indian tribes within such state at any time subsequent to its admission, and such power may be so exercised as to exclude intoxicants not only to those lands still retained by the Indian tribes, but also to those ceded to the United States and to those allotted to them in severalty. ^^^ 438-15a. Liquor traffic — Preserving ex- isting laws and treaties upon admission of territory inhabited by Indian tribes. — Dick V. United States, 208 U. S. 340, 353. 52 L. Ed. 520, 28 S. Ct. 399; Ex parte Webb, 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769. Same — Reservation in Oklahoma En- abling Act. — The scope of any repeal of the prohibitions of the Act of March 1, § 1895 (28 Stat, at L. 693, chap. 145), § 8. against the manufacture and sale of in- to.xicating liquors in the Indian territory, or the bringing of such liquors into such territory, effected by implication from the provisions of the Oklahoma Enabling .\ct of June 16, 1906, which, in addition to a requirement that the state constitution shall prohibit the manufacture and sale of intoxicating liquors in that part of the proposed state known as the Indian ter- ritory, and their shipments from other parts of the state into such protected ter- ritory, with a proviso for the establish- ment of state agencies for the sale of liquors for certain limited purposes speci- fied, contains a reservation to the govern- ment of the United States of authority to make laws and regulations in the future respecting the Indians, and declares that the laws of the United States not locally inapplicable shall have the same force' and effect within the state as elsewhere within the United States, must be limited to the extent that the two acts cover the same field, thus leaving in full force so much of the prohibitions of the earlier act as relates to the carriage of such liquors from without the state of Oklahoma into that part of it which was the Indian ter- ritory, except liquors brought in by the state for the use of the state agencies. Ex parte Webb, 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769. "This being so, and since we find in the Oklahoma Enabling Act no repeal, express or implied, of the Act of 1895 so far as pertains to the carrying of liquor from without the new state into that part of it which was the Indian territory (saving as to liquor brought in by the state for the use of state agencies estab- lished imder the provisions of the en- abling act), it follows, upon the admitted facts, that the United States district court has jurisdiction to punish the petitioner for the ofifense that he has committed.'' Ex parte. Webb, 225 U. S. 663, 56 L. Ed. 1248, 32 S. Ct. 769. 438-15b. Same — Power of congress sub- sequent to admission of state. — Dick v. United States, 208 U. S. 340, 52 L. Ed. 520, 28 S. Ct. 399. See, also, ante, INDIANS, p. 641; post, INTOXICATING LIQ- UORS. Same — Stipulations in Nez Perce Treaty of May 1, 1893 — Sovereignty of Idaho.— The stipulation in the agreement of May 1, 1893, between the United States and the Nez Perce Indians, that the federal laws prohibiting the introduction of in- toxicating liquors into the Indian country shall, for a period of twenty-five years, apply to the lands thereby ceded to the United States and to those retained by the Indians and to those allotted to them in severalty, was a valid regulation, based upon the treaty-making power of the United States and upon the power of con- gress to regulate commerce with the In- dians, and was not an invasion of the sovereignty of the state of Idaho, which had, by the Act of 1890 (26 Stat, at L. 215, chap. 656), been admitted into the Union upon an equal footing with the other states. Dick v. United States, 208 U. S. 340, 52 L. Ed. 520, 28 S. Ct. 399. See, also, Clairmont v. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 S. Ct. 787. Act of January 30, 1897, c. 109, 29 Stat. 506 — Indian allotments — Rights of Indian who has become a citizen. — Congress could enact so much of Act Jan. 30, 1897, c. 109, 29 Stat. 506, as makes criminal the introduction of intoxicating liquor upon an allotment within the limits of the Ya- kima Indian Reservation, in the slate of Washington, made and patented to the Indian allottee under Act Feb. 8, 1887, c. 119, 24 Stat. 388, by which the title is held in trust by the government, and is not alienable by the allottee without the consent of the United States, since, under the provisions with respect to Washing- ton of the Enabling Act of February 22, 1889 (25 Stat. 677. c. 180, § 4), jurisdiction and control of Indian lands remain in the United States. Judgment (Wash. 1908), r46 Vol. MI. IXTERSTATE. ETC., COMMERCE. 438 Words "Indian Country" Construed. — The Act of June 30, 1834, c. 161, 4 Stat. 729, thus defined "the Indian country:"' "That all that part of the United States west of the Mississippi, and not within the states of Missouri and Louis- iana, or the territory of Arkansas, and, also, that part of the United States east •of the Mississippi River, and not within any state to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed to be the Indian country. "'^-^'^ Notwithstanding that portion of the Act of 1834 defining what was to be considered Indian country was not re-enacted in the Revised Statutes, and hence was repealed by § 5596 of the revision (U. S. Comp. Stat. 1901, p. 3750), the definition therein given may still "be referred to in connection with the provisions of its original context, which remain in force, and may be considered in connection with the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country where it is spoken of in the statutes. "i^"^ And as under the Act of June -30, 1834, c. 161 (4 Stat, at L. 729 j, the words Indian country were defined to mean lands to which the Indian title had not been extinguished, this has come to be the accepted sense in which those words have been used in subsequent statutes. In other words, in detennining what is Indian country, the simple criterion is that, as to all lands thus described, it is Indian country whenever the Indian title has not been extinguished, and that it continues to be Indian country so long as the Indians have title to it, and no longer.^-^" Of course, this rule may be quali- fied by special provisions in statutes or treaties, as where it has been provided in some cases, upon the cession of lands by the Indians, and the consequent extin- guishment of their title thereto, that the ceded lands should retain for a specified period of time their original status as Indian country so far as the introduction of intoxicating liquors into the same was concerned. ^-^^ But unless there is some 165 F. 253, reversed. United States f. Sutton, 215 U. S. 291, 54 L. Ed. 200, 30 S. Ct. 116. A conviction of an Indian of the of- fense of introducing intoxicating liquor into the Indian country and into an In- dian allotment while the title to the same is held in trust by the government may be had under Act Jan. 30, 1897, c. 109. 29 Stat. 506, although the defendant Indian is a citizen of the United States, and en- titled, under Act Aug. 7, 1882, c. 434, § 7, 22 Stat. 342, and Act Feb. 8, 1887, c. 119, § 6, 24 Stat. 390, to the rights, privileges, and immunities of such citizens, and to the benefit of the laws, civil and criminal, of the state in which his allotment is situated, and upon which the offense is alleged to have been committed. Hallo- well :•. United States, 221 U. S. 317, 55 L. Ed. 750, 31 S. Ct. 587. See, also, Dick r. United States, 208 U. S. 340, 52 L. Ed. 520. 28 S. Ct. 399. 438-15C. Words "Indian country" con- strued. — Clairmont z\ United States. 225 U. S. 551, 557, 56 L. Ed. 1201, 32 S. Ct. 787. 438-15d. Same — Construction with refer- ence to repeal portions of statute. — Clairmont v. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 S. Ct. 787; Ex parte ■Crow Dog, 109 U. S. 556, 561, 27 L. Ed. 1030, 3 S. Ct. 396; United States v. Le Bris, 121 U. S. 278, 280, 30 U Ed. 946, 7 S. €t. 894. 438-15e. Same — Extinguishment of In- dian title the criterion. — Clairmont v. United States, 225 U. S. 551. 56 L. Ed. 1201, 32 S. Ct. 787. 438-15f. Same — Special exceptions and reservations in some cases. — Clairmont t^. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 S. Ct. 787. See, also, Dick v. United States, 208 U. S. 340, 52 L. Ed. 520, 28 S. Ct. 399. The words, ''Indian countrj^" as used in U. S. Rev. Stat., § 2139, as amended and re-enacted by the Act of July 23, 1892, (27 Stat, at U 260. chap. 234), forbidding the introduction of intoxicating liquors into such country, do not, standing alone, embrace territory in which, at the time, the Indian title had been extinguished, and over which, with its inhabitants, the jurisdiction of the state, for all purposes of government, and full and complete. Dick v. United States, 208 U. S. 340. 52 L. Ed. 520, 28 S. Ct. 399. That statute, however, must be inter- preted in connection with the agreement of 1893 between the United States and the Xez Perce Indians. By that agreement, the United States stipulated that the lands ceded by the Nez Perce Indians, and those retained as well as those allotted to the Indians, which embraced all the lands in the original Reservation, should be subject, for the limited period of twenty-five years, to all federal laws pro- 747 438-440 INTERSTATE, ETC., COMMERCE. Vol. VII. such reservation, the lands, upon the extinguishment of the Indian title, cease to be Indian country as above stated, both as regards the introduction of intoxicat- ing liquors into the same as well as for all other purposes. ^^° Offense of Introducing" Intoxicating Liquors into Indian Country Not Sustained Where Title Shown to Have Been Extinguished. — Where the offense of actually introducing intoxicating liquors charged in an indictment in a federal district court is shown to have been committed on lands within the state to which the Indian title has been extinguished, and which have been completely withdrawn from the reservation, the charge of introducing liquors into the Indian country is disproved and the jurisdiction of the district court of the United States must fail. He could be found guilty under such circumstances no matter what his ultimate intention with respect to such liquor might have been.!^'*^ On the other hand, if the charge laid in the indictment was that of "attempting to intro- duce" intoxicating liquors into the Indian country, and the defendant was found with liquor in his possession upon lands adjoining those included within "Indian countr}^'" as herein defined, or upon a railroad train on a right of way rvmning into or through such country, then the question of guilt would be purely one of evidence.^ '^^ D. Commerce in Territories and Places under Exclusive Federal Con- trol. — The power of congress to deal with trade and commerce in the District of Columbia and the territories does not depend upon the authority of the inter- state commerce clause of the constitution.-^^ Employers' Liability Acts. — Congress had the power to enact so much of the Federal Employers' Liability Act of June 11, 1906, as provides that every common carrier engaged in trade or commerce in any territory of the United States shall be liable for the death or injury of any of its employees w4iich may result from the negligence of any of its officers, agents, or employees. -^"^ hibiting the introduction of intoxicants into the Indian country. Dick v. United States, 208 U. S. 340, 352, 52 L. Ed. 520, 28 S. Ct. 399. It is within the power of congress, therefore to retain control for a reason- able period for police purposes of land to which the Indian title has been ex- tinguished, even though the Indians have become citizens, and the requireinent, in ihe agreement of 1893, that the federal liquor statutes protecting the Indian country against the introduction of in- toxicants into it should, for the limited period of twenty-five years, be the law for the lands ceded and retained by, as well as the lands allotted to, the Nez Perce Indians, was a valid regulation based upon the treaty-making power of the United States and upon the power of congress to regulate commerce with those Indians, and was not inconsistent, in any substantial sense, with the constitutional principle that a new state comes into the Union upon entire equalits' with the original states. Dick v. United States, 208 U. S. 340, 359, 52 L. Ed. 520, 28 S. Ct. 399. See, also, Hallowell v. United States, 221 U. S. 317, 55 L. Ed. 750, 31 S. Ct. 587. 438-15g. Same — Otherwise in absence of such special reservation. — Clairmont V. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 S. Ct. 787. 438-15h. Offense of introducing intoxi- cating liquors not shown where Indian title has been extinguished. — Clairmont v. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 S. Ct. 787. The right of way through the Flathead Indian Reservation granted to the North- ern Pacific Railway Company by the Act of July 2, 1864 (13 Stat, at L. 365, 367, chap. 2] 7), § 2, the Indian title to which was extinguished without reservation by ihe agreement of September 2, 1882, is not "Indian country" within the meaning of the Act of Janua'ry 30, 1897 (29 Stat, at L. 506, chap. 109), making it an offense for any person to introduce intoxicating liquors into the Indian country, "which term shall include any Indian allotment while the title to the same shall be held in trust by the government, or v/hile the same shall remain inalienable by the al- lottee without the consent of the United States.'' Clairmont v. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 S. Ct. 78?. 438-15i. "Attempting to introduce," etc. —Clairmont v. United States. 225 U. S. 551. 56 L. Ed. 1201, 32 S. Ct. 787. 440-29a. Commerce in territories and places under exclusive federal control. — El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87, 54 L Ed. 106. 30 S. Ct. 21. 440-29b. Employers' Liability Acts. — EI Paso, etc., R. Co. r. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. See, also, ante, "Employers' Liability Acts,"' II, A, 748 Vol. \'II. INTERSTATE, ETC., COMMERCE. 441-443 Operation of Interstate Commerce Act in the Territories. — See post "In General," IV, B, 1. III. State Taxation. B. Power to Tax Interstate and Foreign Commerce — 1. In General. — See note oS. 2. What Constitutes Taxation of Interstate and Foreign Commerce a. /;/ General. — See note 39. b. Occupation and Business Tax — (1) In General — See ante, "Taxation and Licenses," II, A, 2, d, (12), (i), et seq. (2) License Tax for Privilege of Carrying on Interstate Commerce — (a) Doc- trine Stated. — See ante, ""Taxation and Licenses," II, A, 2, d, (12), (ij. (b) Application of Doctrine — aa. Carriers Doing Interstate Business. — See ante, "Taxation and Licenses," II, A, 2, d, (12), (i); post, ""Taxation of Prop- ert)^ Engaged in Commerce," III, B, 2, e, et seq. 1, b, (3), (b), dd, (cc^), eee. See post, MASTER AND SERVANT. Act of June 11, 1906, not invalid as to territories and District of Columbia. — The Federal Employers' Liability Act held unconstitutional as to interstate com- merce in The Employers' Liability Cases, 207 U. S. 463, 490, 52 L. Ed. 297, 28 S. Ct. 141, is not unconstitutional so far as it re- lates to common carriers engaged in trade or commerce in the District of Co- lumbia and in the territories of the United States, for the reason, among others, that the power of congress to legislate con- cerning trade and commerce in the terri- tories and in the District of Columbia is not dependent upon the commerce clause of the constitution. EI Paso, etc., R. Co. V. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. 441-35. Power to tax interstate and for- eign commerce. — It is thoroughly well settled tliat state laws may not burden interstate commerce, and as one form of burden may exist in taxing the conduct of interstate commerce, such taxation has been uniformly condemned. United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. 443-39. What constitutes taxation of in- terstate and foreign commerce. — The dif- ficulty has been, and is, to distinguish be- tween legitimate attempts to exert the taxing power of the state and those laws which, though in the guise of taxation, impose real burdens upon interstate com- merce as such. United States Exp. Co. V. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. This difficulty was recognized in Gal- veston, etc., R. Co. V. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638, wherein the possible differences between the de- cisions in Philadelphia, etc.. Steamship Co. V. Pennsylvania, 122 U. S. 326. 30 L. Ed. 1200, 7 S. Ct. 1118, and Maine x\ Grand Trunk R. Co., 142 U. S. 217, 228, 35 L. Ed. 994, 12 S. Ct. 807, were com- mented upon and explained. Mr. Justice Holmes, speaking for the court, said: "By whatever name the exaction may be called, if it amounts to no more than the ordinary tax upon property, or a just equivalent therefor, ascertained by refer- ence thereto, it is not open to attack as inconsistent with the constitution." United States Exp. Co. v. Minnesota, 223 U. S 335, 56 L. Ed. 459, 32 S. Ct. 211. The state must be allowed to tax the proDerty, and to tax it at its actual value as a t^oing concern. On the other hand, tlie state can not tax the interstate busi- ness. The two necessities hardly admit of an absolute logical reconciliation. Yet the distinction is not without sense. When a legislature is trying simply to value property, it is less likely to attempt to or effect injurious regulation that when it is aiming directly at the receipts from interstate commerce. A practical line can be drawn by taking the whole scheme of taxation into account. That must be done by the federal supreme court as best it can. Galveston, etc., R. Co. v. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct 638; United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. As the federal supreme court said in Postal Tel. Cable Co. v. Adams. 155 U. S. 688. 697, 39 L. Ed. 311, 15 S. Ct. 268: "Doubtless no state could add to the taxa- tion of property according to the rule of ordinary property taxation, the burden of a license or other tax on the privilege of using, constructing, or operating an in- strumentality of interstate or interna- tional commerce, or for the carrying on of such commerce; but the value of prop- erty results from the use to which it is put, and varies with the profitableness of that use; and by whatever name the ex- action may be called, if it amounts to no more than the ordinary tax upon prop- erty, or a just equivalent therefor, ascer^ tained by reference thereto, it is not open to attack as inconsistent with the con- stitiition." United States Exp. Co. v. Minnesota. 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. r49 448-450 IXTERSTATE, ETC., COMMERCE. Vol. VIL cc. Solicitors for Orders for Foreign Products — ( aa ) In General — Business Confined to Interstate Transactions. — See note 54. (cc) Persons Soliciting Orders for Intoxicating Liquors. — As to the power of the state to impose a hcense tax upon the representatives of nonresident Uquor houses for the privilege of soliciting orders for intoxicating liquors within the state, see ante, "Power of State to Tax or License," II, A, 2, d, (17), (e). dd. Money and Exchange Brokers. — See ante, "Contracts Incidentally Affect- ing Commerce; Brokerage and Commission Contracts," I, A, 3, 1. dd^. Bankers Engaged in Forzvarding Deposits to Other States and Countries. — A state may impose a license tax upon a private banker whose business consists chiefly in receiving deposits in small sums from time to time until they reach an amount sufficient to be sent to other states and foreign countries.^'^"' ff. Agency Engaged in Interstate Commerce. — See note 62. 448-54. Orders for pictures and picture frames — Separability of contract as to frames. — The sale within the state of a frame tor a portrait, made in another state, to fill an order taken by a solicitor in the former state, can not be so sepa- rated from the rest of the dealings be- tween the nonresident maker and the pur- chaser as to sustain the imposition of a license tax, under Act Ala. IMarch 7, 1307 (Acts 1907, p. 469), § 17, where the order for the portrait contemplated its delivery in an appropriate frame, which the pur- chaser of the portrait should have the op- tion of buying at the factory price. Doz- ier V. Alabama, 218 U. S. 124, 54 L. Ed. 965, 30 S. Ct. 649, reversing judgment (1908), 46 So. 9, 154 Ala. 83, 129 Am. St. Rep. 51. The plaintiff in error was convicted and sentenced to a fine on a complaint for breach of an Alabama statute of March 7, 1907. By § 17 of that act a license tax was imposed on persons who did not have a permanent place of business in the state, and also keep picture frames as a part of their stock in trade, if they solicited or- ders for the enlargement of photographs or pictures of any character, or for pic- ture frames, whether they made charge for such frames or not, or if they sold or disposed of picture frames. The supreme court of Alabama, while admitting that the dealings concerning the pictures were commerce among the states, sustained the conviction, on the ground that the sale of the frames was a wholly local mat- ter. 154 Ala. 83, 129 Am. St. Rep. 51, 46 So. 9. On this state of facts the court says: "What is commerce among the states is a question depending upon broader considerations than the existence of a technically binding contract, or the time and place where the title passed. We are of opinion that the sale of the frames can not be so separated from the rest of the dealing between the Chicago company and the Alabama purchaser as to sustain the license tax upon it. Under the deci- sions, the statute, as applied to this case, is a regulation of commerce among the states, and void under the constitution of the United States. Art. 1, § 8. Robbins V. Shelby County Taxing Dist., 120 U. S. 489, 30 L. Ed. 694, 7 S. Ct. 592; Caldwell V. North Carolina, 187 U. S. 622. 47 L. Ed. 336, 23 S. Ct. 229; Rearick v. Pennsylvania, 203 U. S. 507, 51 L. Ed. 295, 27 S. Ct. 159." Dozier z: Alabama. 218 U. S. 124, 54 L- Ed. 965, 30 S. Ct. 649. It is true that the customer was not bound to take the frame unless he saw fit, and that, the sale of it took place wholly within the state of Alabama, if the sale was made. But it was agreed that the frame should be offered along with the picture, and this offer was a part of the interstate bargain; and as it was agreed that the frame should be offered at factory prices and the company and factory were in Chicago, it was obviously contem- plated, if not agreed, that the frame should come on with the picture, which was ac- tually the case; so considered the trans- action was commercially continuous, and an interstate transaction not subject to the taxing power of the state. Dozier z\ Alabama, 218 U. S. 124, 54 L. Ed. 965, 30 S. Ct. 649. 449-60a. Bankers engaged in forward- ing deposits to other states and countries. — Engel 7'. OAIallev, 219 U. S. 128, 55 L. Ed. 128. 31 S. Ct. 191, affirming (C. C), 182 Fed. 365. Interstate commerce is not unconstitu- tionally regulated by the requirement of N. Y. Laws 1910, chap. 348. tliat a license from the comptroller be obtained by in- dividuals or partnerships desiring to en- gage in the business of private banking, as applied to one whose business chiefly consists in receiving deposits in very small sums from time to time until they reach an amount sufficient to be sent to other states and foreign countries. Engel v. O'Malley, 219 U. S. 128, 55 L. Ed. 128, 31 S. Ct. 191. 450-62. Agency engaged in interstate commerce — Orders for automobiles — Agency held not to exist here. — A state docs not ta.x interstate transactions by imposing a tax upon a domestic corpora- rso Vol. VII. INTERSTATE, ETC., COMMERCE. 453-454 gg. Peddlers, etc. — As to the taxation of persons selling or taking orders for pictures and picture frames, see ante, "In General ; Business Confined to Inter- state Transactions,'" III. B, 2, b, (2), (b), cc, (aa). e. Taxation of Property Engaged in Commerce — (1) In General — (aj Prop- erty 2\.itliiii the State Limits — aa. General Rules. — See notes 76. 77. tiuri selling within a desig^iiated territory in the state automobiles built by a foreign corporation under an arrange!nent by which the latter agreed to build for and sell to the former, for cash, at a specified less than list price, deliveries to be made as soon as practicable after orders should be received, the domestic corporation cus- tomarily making payment through drafts attached to the bills of lading, and there being nothing connecting the tiltiniate buyer with the manufacturer other than a warranty direct from manufacturer to buyer, and such buyer's agreement "to pay the list price f. o. b. factory,"' since such sales are not interstate ones; the re- lation of principal and agent between th^ foreign and domestic corporations not ex- isting so far as the buyer is concerned. Banker Eros. Co. v. Pennsylvania, 222 U. S. 210, 56 L. Ed. 168, 32 S. Ct. 38, affirm- ing judgment (1909) Commonwealth v. Banker Bros. Co., 38 Pa. Super. Ct. 101. 453-76. Taxation of property engaged in comnierce. — The right of the state to tax property, although it is used in inter- state commerce, is thoroughly well set- tled. United States Exp. Co. z\ Minne- sota, 223 U. S. 335, 56 L. Ed. 459. 32 S. Ct. 211; Atchison, etc., R. Co. z: O'Connor, 223 U. S. 280, 56 L. Ed. 436, 32 S. Ct. 216; Galveston, etc., R. Co. z: Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638. See, also, ante, "Taxation and Licenses," II, A, 2, d. (12), (i). The difficulty has been, and is, to dis- tinguish between legitimate attempts to exert the taxing power of the state and those laws which, though in the guise of taxation, impose real burdens upon inter- state commerce as such. United States Exp. Co. V. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. This difficulty was recognized in Gal- veston, etc., R. Co. v. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638, wherein the possible differences between the decisions in Philadelphia, etc.. Steamship Co. v. Pennsylvania. 122 U. S. 326. 30 L. Ed. 1200, 7 S. Ct. 1118, and Maine v. Grand Trunk R. Co., 142 U. S. 217, 228, 35 L. Ed. 994, 12 S. Ct. 807, were commented upon and ex- plained. Mr. Justice Holmes, speaking for the court, said: "By whatever name the exaction may be called, if it amounts to no more than the ordinary tax upon property, or a just equivalent therefor, as- certained by reference thereto, it is not open to attack as inconsistent with the constitution." United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. "The state must be allowed to tax the property, and to tax it at its actual value as a going concern. On the other hand, the state can not tax the interstate busi- ness. The two necessities hardly admit of an absolute logical reconciliation. Yet the distinction is not without sense. When a legislature is trying simply to value property, it is less likely to attempt to or effect injurious regulation than when it is aiming directly at the receipts from inter- state commerce. A practical line can be drawn by taking the whole scheme of tax- ation into account. That must be done by this court as best it can." Galveston, etc., R. Co. z: Texas, 210 U. S. 217, 52 L. Ed. 1031. 28 S. Ct. 638; United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. As the federal supreme court said in Postal Tel. Cable Co. z: Adams, 155 U. S. 688, 697, 39 L. Ed. 311. 15 S. Ct. 268: "Doubtless no state could add to the taxa- tion of property according to the rule of ordinary property taxation, the burden of a license or other tax on the privilege of using, constructing, or operating an in- strumentality of interstate or interna- tional commerce, or for the carrying on of such commerce; but the value of property results from the use to which it is put, and varies with the profitableness of that use; and by whatever name the exaction may be called, if it amounts to no more than the ordinary tax upon property, or a just equivalent therefor, ascertained by reference thereto, it is not open to attack as inconsistent with the constitution." United States Exp. Co. z'. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. Vessels. — See Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. ]3. 454-77. Property and capital of foreign corporation doing business as importers. — The cash on hand and notes owned by a foreign corporation, doing business in the state as importers, which are the pro- ceeds of the sale of imported goods in the unbroken original packages, may be taxed under Laws X. Y. 1896. p. 800, c. 908, § 7, as capital employed in business within the state, without infringing the prohibition of Const. U. S. art. 1, § 10, against taxing imports, although the bulk of the proceeds of such sales are remitted to the home office in Ireland, where it is customary to hold the notes in New York r51 458-461 INTERSTATE, ETC., COMMERCE. Vol. VII. (b) Property Outside of State Limits. — See ante, "Taxation and Licenses," II, A, 2, d, (12), (i), et seq. See, also, ante. Constitutional Law, p. 264; Due Process of Law, p. 475. (2) Corporate Franchise. — See ante, "Taxation and Licenses," II, A, 2, d, (12), (i), et seq. (3) Personal Property of Foreign Corporations — Rolling Stock. — See ante, Constitutional Law, p' 264; Due Process of Law, p. 475. (S y2) Ta.v on Capital Stock. — The state can not impose a tax upon the capital stock of a foreign corporation engaged in interstate commerce, the greater part of whose property and business is outside the state, and whose business done within the state is principally interstate commerce. Such a tax is of the kind declared by the supreme court of the United States to be unconstitutional, even though the temporary forfeiture of the right to do business declared by the statute be confined to business wholly with the state.^^^ (4) Privilege Tax Based upon Value of Property. — See ante, "In General," II, A, 2, d, (12), (i), aa; "General Rules," III, B, 2, e, (1), (a), aa; post, "Gross Receipts," III, B, 2, f. (5) The Unit Rule. — See ante, "General Rules," III, B, 2, e, (1), (a), aa. f. Gross Receipts. — See note 3. for collection, and to retain there sufficient sums to meet the local expenses of the business, and to pay the duties on subse- quent importations. Judgment (1906), 77 N. E. 19, 184 N. Y. 275. affirmed. Burke -V. Wells, 208 U. S. 14, 52 L. Ed. 370, 28 S. Ct. 193. The plaintiffs in error have established a warehouse and place of business in the state of New York for the sale of their imported goods. This business is of a permanent character; the goods are con- stantly received and sold and replaced by other goods. Cash is deposited in bank in New York, and is subject to use as the needs of the business may require. In this business it takes notes for sales of such goods. These notes are not directly transmitted to its home office in Dublin, but are held for collection in connection with the business in New York; and while the bulk of the proceeds may be sent abroad, sufficient sums are retained to meet the expenses of the business and pay duties on subsequent importations of goods. The constitutional protection af- forded the importer against state action does not require the property thus held and used to be exempted from state tax- ation. Burke v. Wells, 208 U. S. 14, 52 L. Ed. 379, 28 S. Ct. 193. 458-91a. Tax on capital stock. — Atchi- son, etc., R. Co. V. O'Connor, 223 U. S. 280, 56 L. Ed. 436, 32 S. Ct. 216, citing Western Union Tel. Co. v. Coleman, 216 U. S. 1, 54 L. Ed. 355, 30 S. Ct. 190; Pull- man Co. V. Coleman, 216 U. S. 56, 54 L. Ed. 378, 30 S. Ct. 232; Ludwig v. Western Union Tel. Co., 216 U. S. 140, 54 L. Ed. 423, 30 S. Ct. 280. The tax imposed under Colo. Laws 1907, chap. 211, upon the capital stock of a for- eign railway company, the greater part of whose property and business is outside the state, and whose business done within the state is principally interstate coin- merce, is invalid under the commerce and due process of law clauses of the federal constitution, even if the temporary forfei- ture of the right to do business, declared by the statute in case of failure to pay the tax, can be confined by construction to business wholly within the state. Atchi- son, etc., R. Co. V. O'Connor, 223 U. S. 280, 56 L. Ed. 436, 32 S. Ct. 216. 461-3. Gross receipts. — "In Philadel- phia, etc.. Steamship Co. v. Pennsylvania, 122 U. S. 326, 30 L. Ed. 1200, 7 S. Ct. 1118, it was decided that a tax upon the gross receipts of a steamship corporation of the state, when such receipts were derived from commerce between the states and with foreign countries, was unconstitu- tional. We regard this decision as un- shaken and as stating established law. It cites the earlier cases to the same effect. Later ones are Ratterman v. Western Un- ion Tel. Co., 127 U. S. 411, 32 L. Ed. 229; Western Union Tel Co. v. Pennsylvania, 128 U. S. 39, 32 L. Ed. 345, 9 S. Ct. 6; Western Union Tel. Co. v. Alabama State Board, 132 U. 8^472, 33 L. Ed. 409, 10 S. Ct. 161. See, also, Pullman's Palace Car Co. V. Pennsylvania, 141 U. S. 18, 25, 35 L. Ed. 613; Ficklen v. Shelby County Taxing Dist., 145 U.^S. 1, 22, 36 L. Ed. 601; New York, etc., R. Co. v. Pennsylvania, 158 U. S. 431, 438, 39 L. Ed. 1043; McHenry v. Alford, 168 U. S. 651, 671, 42 L. Ed. 614; Atlantic, etc., Tel. Co. v. Philadelphia, 190 U. S. 160, 162, 47 L. Ed. 995. In Maine v. Grand Trunk R. Co., 142 U. S. 217, 35 L. Ed. 994, 12 S. Ct. 807, the authority of the Philadelphia Steamship Company Case was accepted without question, and the decision was justified by the majority as not in any way qualifying or imparing it. The validity of the distinction was what 752 Vol. VII. INTERSTATE, ETC., COMMERCE. 461 j. Taxation of Subjects of Commerce- ports. — Foreign Warehouse Receipts. - -(2) Imports and Exports — (a) Ex- -A state can not tax German ware- divided the court." Galveston, etc., R. Co. V. Texas, 210 U. S. 217, 224, 52 L. Ed. 10.31, 28 S. Ct. 638. Tax "equal to" stated per cent of gross receipts. — The state can not impose the tax levied b}^ Act Tex. April 17, 190.5, p. 336, c. 141, upon railway companies whose lines lie wholly within the state, "equal to 1 per centum of their gross receipts," where a part, and, in some cases, much the larger part, of these gross receipts, is de- rived from the carriage of "passengers and freight coming from, or destined to, points without the state. Judgment, State z'. Galveston, H. & S. A. Ry. Co. (Tex. 1906) 97 S. W. 71, reversed. Galveston, etc., R. Co. V. Texas, 210 U. S. 217, 52 L. Kd. 1031, 28 S. Ct. 638. This is an action against certain rail- roads to recover taxes and penalties. The supreme court of the state held the pen- alties to be void under the state constitu- tion, but upheld the tax. State z'. Galves- ton, etc., R. Co., 100 Tex. 143, 97 S. W. 71. The railroads brought the case here mainly on the ground that the law upon which the action is based is an attempt to regulate commerce among the states. In the course of the opinion the court said: "By whatever name the exaction may be called, if it amounts to no more than the ordinary tax upon property or a just equivalent therefor, ascertained by reference thereto, it is not open to attack as inconsistent with the constitution. The question is whether this is such a tax. It appears sufficiently, perhaps from what has lieen said, that we are to look for a practical rather than a logical or philoso- phical distinction. The state must be al- lowed to tax the property, and to tax it at its actual value as a going concern. On the other hand, the state can not tax the inter- state business. The two necessities hardly admit of an absolute logical reconciliation. Yet the distinction is not without sense. When a legislature is trying simply to value propertj', it is less likely to attempt or lo effect injurious regulation than when it is aiming directly at the receipts from interstate cominerce. A practical line can be drawn by taking the whole scheme of taxation into account. That must be done by this court as best it can. Neither the state courts nor the legislature, by giving the tax a particular name or by the use of some form of words, can take away our duty to consider its nature and effect. If it bears upon commerce among the states so directly as to amount to a regulation in a relatively immediate waj', it will not be saved bv name or form." Galveston, etc., R. Co.'t'. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638; Stockard r. Mor- gan, 185 U. S. 27, 37, 46 L. Ed. 785, 22 S. 12 U S Enc— 48 753 Ct. 576; Asbell z: Kansas, 209 U. S. 251, 256, 52 L. Ed. 778, 28 S. Ct. 485. "The distinction between a tax 'equal to' 1 per cent of gross receipts, and a tax of 1 per cent of the same, seems to us nothing except where the former phrase is the index of an actual attempt to reach the property and to let the interstate traf fie and the receipts from it alone. We find no such attempt or anything to qual- ify the plain inference from the statute, taken by itself. On the contrary, we rather infer from the judgment of the state court and from the argument on be- half of the state that another tax on the property of the railroad is upon a valua- tion of that property, taken as a going concern. This is merely an effort to reach the gross receipts, not even disguised by the name of an occupation tax, and in no way helped by the words 'equal to.' " Galveston, etc., R. Co. v. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638. Same — As to domestic corporations. — It does not matter that the corporations are domestic corporations, or that the tax embraces indiscriminately gross receipts from commerce within as well as outside of the state. Galveston, etc., R. Co. v. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638. Gross revenue tax "in addition to" property tax. — As applied to express com- panies whose receipts are derived largely from commerce among the states and which also receives large sums as income from investments in bonds and land all outside the state, a statute which imposes upon public service corporations operat- ing within the state a "gross revenue tax," 'which shall be in addition to the taxes levied and collected upon an ad valorem ba- sis upon the propertj^ and assets of such corporations," is unconstitutional, not only as an attempt to tax interstate com- merce, but as an attempt to levy a tax upon property situated without and be- yond the jurisdiction of the state. Meyer z: Wells, etc., Co., 223 U. S. 298, 56 L. Ed. 445, 32 S. Ct. 218. A nonresident express company whose receipts are largely derived from inter- state commerce and from investments in bonds and land outside the state can not validly be subjected to the "gross revenue tax" exacted by Okla. Laws 1910, chap. 44, from public service corporations, "which shall be in addition to the taxes levied and collected upon ad valorem basis upon the property and assets of such corpora- tion," equal to such proportion of a speci- fied percentage of its gross receipts from every source whatsoever as the portion of its business done within the state bears to the whole of its business. Meyer z: 465-466 INTERSTATE, ETC., COMMERCE. Vol. VII. house receipts, valuing them at the value of the whisky they represent, where it can not tax the whisky itself, either because it was exported from the United States or because of its situs. ^^^ (b) Imports — aa. Property in Transit. — See ante, "When Protection Attaches," I, A, 4, a. bb. Taxation upon Arrival at Destination — (aaj Property Retaining Distinc- tive Character as Imports — bbb. Original Package Rule — (aaa) In General. — See note 27. Wells, etc., Co., 223 U. S. 298, 56 L. Ed. 445, .32. S. Ct. 218, following Fargo v. Hart, 193 U. S. 490, 48 L. Ed. 761, 24 S. Ct. 498; Galveston, etc., R. Co. v. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638. The "gross revenue tax" exacted from a nonresident express company by Okla. Laws 1910, chap. 44, "which shall be in ad- dition to the taxes levied and collected upon ad valorem basis upon the property and assets of such corporation" and equal to such proportion of a specified percent- age of its gross receipts from every source whatsoever as the portion of its business done within the state bears to the whole of its business, can not be construed, for the purpose of saving its constitutionality, as referring only to the receipts from commerce wholly within the state. Mever V. Wells, etc., Co., 223 U. S. 298, 56 L. Ed. 445, 32 S. Ct. 218. Gross revenue tax "in lieu of all taxes on property." — Including the gross re- ceipts of a nonresident express company, upon the basis of which a tax is imposed by Minn. Rev. Laws 1905, chap. 11, "in lieu of all taxes on its property," the earnings from interstate shipments, where the transportation while in the company's hands was performed wholly within the state, does not unconstitutionally burden interstate commerce, but is an exercise of the state's power to measure a legitimate property tax by receipts which in part come from interstate cominerce, which could not in itself be taxed. United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. The tax in the present case is not like those held invalid in the Galveston Case and the Oklahoma Case, being in addi- tion to other state taxation reaching the property of all kinds of the express com- pany. The tax to be collected in part from the earnings of interstate commerce was part of a scheme of taxation seeking to reach the value of the property of such companies in the state, measured by the receipts from business done within the state. The statute was not aimed exclu- sively at the avails of interstate commerce. Philadelphia, etc.. Steamship Co. v. Penn- sylvania, 122 U. S. 326. 30 L. Ed. 1200, 7 S. Ct. 1118, but, as in the Maine Case, was an attempt to measure the amount of tax v/ithin the admitted power of the state by income derived, in part, from the conduct of interstate commerce. United States Exp. Co. V. Minnesota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. Same — Earnings between points within state v/here route between same lies partly in another state. — The earnings of a non- resident express company carrying goods between two points within the state over a route incidentally traversing a portion of another state, so far as they are de- rived from the carriage within the state, may be included in the gross receipts, upon which the tax imposed by Minn. Rev. Laws, 1905, chap. 11, is based, with- out unconstitutionally burdening inter- state commerce, or denying due process of law. United States Exp. Co. z'. Minne- sota, 223 U. S. 335, 56 L. Ed. 459, 32 S. Ct. 211. 465-20a. Foreign warehouse receipts. — Selliger v. Kentucky, 213 U. S. 200, 53 L. Ed. 761, 29 S. Ct. 449. It appeared in this case that the whisky was actuall}' exported froin this country and stored abroad, and it was alleged that parctically all of it would ultimately be brought back to this country, and that the exportation and storage of it abroad was done for the purpose of putting it beyond the reach of the taxing power of thi; state, and therefore the state was entitled to tax the receipts representing the whisky as being of equal value with the whisky; but the court said: "Assuming, as the court of appeals assumed, that the whisky is ex- empt under the constitution of the United States, we are of opinion that the protec- tion of the constitution extends to ware- house receipts locally present within the state. What was said by Chief Justice Taney about bills of lading applies to them, mutatis mutandis: *A duty upon that is, in substance and effect, a duty on the article exported." " Selliger v. Ken- tucky. 213 U. S. 200, 53 L. Ed. 761, 29 S. Ct. 449, citing Almy v. California, 24 How. 169, 16 L. Ed. 644; Fairbank z'. United States, 181 U. S. 283, 294, 45 L. Ed. 862, 21 S. Ct. 648. 466-27. State tax on imports from for- eign countries void under commerce clause. — As to imported goods, the state may not impose taxes directly upon the goods or upon the right to sell them, or impose license fees upon importers for the privilege of selling, so long as the goods remain in the original package un- 754 Vol. MI. INTERSTATE, ETC., COMMERCE. 468-476 (bb) Property Commingled zvith General Mass of Property — aaa. In General. — See notes 31, 33. bbb. Discriminntion — (aaa) In General. — See note 3S. (ccj Exercise of Police Power — Intoxicating Liquors. — See ante. "Power of State to Tax or License."' II, A, 2, d, (17), (e). IV. Interstate Commerce Act. A. Nature, Purpose, Constitutionality and Construction — 1. Nature; AND Purpose:. — Primary Purpose, Regulation. — \\hatever may be the power of congress, it did not attempt, in the Act of February 4, 1887, c. 104, 24 Stat. 379, to do more than to regulate the interstate business of common carriers, and the primary purpose for which the commission was established was to enforce the regulations which congress had imposed.-''-'' Agreements for Restraint of Trade or Trusts. — See post, MoxopoLms AND Corporate Trusts. Delegation of Powers to Commission as Excluding State Action. — The mere delegation by congress to the interstate commerce commission of certain powers is not equivalent to specific action by congress in respect to the particular incorporated into the general property. All such attempts at taxation are in viola- tion of the constitution and void. Burke :•. Wells, SOS U. S. 14, 52 L. Ed. 370, 28 S. Ct. 193. The constitutional protection is in- tended to secure the right to bring in, and to sell in the original packages, the goods imported; and, that this right may not be impaired, direct taxes tipon goods or li- cense taxes for the privilege of sale can not be levied. Burke v. Wells, 208 U. S. 14. 52 L. Ed. 370. 28 S. Ct. 193. Sse, also, ante, "Original Packages,'' I. A, 4, b, (2). 468-31. Property commingled with gen- eral mass of property. — The importer may lose this right of protection by mingling such, goods with other property, and al- tering their character as importatiojis in original packages, and making thern by his conduct subject to the taxine power of the state. Burke v. Wells, 208 U. S. 14, 52 L. Ed. 370, 28 S. Ct. 193. 469-33. It has been settled that where property which has moved in the channels of interstate commerce is at rest within a state and has become commingled with the mass of property therein, it may be taxed by such state without thereby im- posing a direct burden upon interstate commerce, that doctrine, as expounded in the decided cases, including those relied upon by the court below, has always e.K- pressly excluded the conception that a state could, without directly burdening interstate commerce, discrimmate against such property by imposing upon it a bur- den of taxation greater than that levied upon domestic property of a like nature. Darnell & Son Co. v. Memphis. 208 U. S. 113, 52 L. Ed. 413, 28 S. Ct. 247. 470-35. Discrimination — In general.— No state can, consistently with the federal constitution, impose upon the products of other states, brought therein for sale or use, or upon citizens because engaged in the sale therein, or the transportation thereto, of the products of other state?, more onerous public burdens or taxes than it imposes upon the like products of its own territory. Darnell & Son Co. v. Memphis. 208 U. S. 113, 52 L. Ed. 413, 28 S. Ct. 247. A tax upon property within the state which is the product of the soil of ether states, imposed tmder the authority of Const. Tenn. 1870, art. 2, §§ 28-30, and Acts Tenn. 1903, p. 632, c. 258, §§ 1, 2, which exempt like property when pro- duced from the soil of Tennessee, violates Const. U. S. art. 1. § 8, as directly inter- fering with interstate commerce. Decree (1906) 95 S. W. 816. 116 Tenn. 424. re- versed. I. M. Darnell & Son Co. v. Mem- phis, 208 U. S. 113, 52 L. Ed. 413. 28 S. Ct. 247. A system of taxation discriminating in favor of residents and domestic products, and against nonresidents and foreign products, might result in commercial non- intercourse between the states, and as a regulation of interstate commerce would clearly be invalid. The objection, how- ever, would not apply to a uniform tax upon goods which does not discriminate in favor of residents or products of the state. Brown-Forman Co. v. Kentucky, 217 U. S. 563, 54 L. Ed. 883, 30 S. Ct. 578; Woodruff V. Parham. 8 Wall. 123. 19 L. Ed. 382; Hinson v. Lott. 8 Wall. 148, 19 L. Ed. 389; Emert i: Missouri, 156 U. S. 296, 39 L. Ed. 430, 15 S. Ct. 367. 476-58a. Primary purpose regulation. — Harriman --. Interstate Commerce Comm., 211 U. S. 407, 418. 53 L. Ed. 253, 29 S. Ct. 115. "55 477 INTERSTATE, ETC., COMMERCE. Vol. VII. matters involved, which prevents a state from making regulations conducive to the vv^elfare of its citizens that may indirectly affect commerce.^"^ 2. Constitutionality. — Power to Make Principal Liable for Acts of Agents. — There can be no question of the power of congress to regulate inter- state commerce to prevent favoritism, and to secure equal rights to all engaged in interstate trade ; and in so doing it may control those who are conducting inter- state commerce by holding them responsible for the intent and purposes of the agents to whom they have delegated the power to act in the premises.*' ^^ Effect upon Exports. — The mere incidental eft'ect upon exports which may be produced by applying to a shipment from an interior point of the United States to a foreign port the provisions of the Elkins Act of February 19, 1903, making it an offense against the United States to obtain the transportation of property in interstate or foreign commerce at less than the carrier's published rates, does not render such provisions repugnant to U. S. Const, art. 1, § 9, no. 5, forbidding the levying of export taxes or duties.*''^'' Preference of Ports of One State Over Those of Another. — Preference is not given to the ports of one state over those of another by applying to articles intended for foreign export the provisions of the Elkins Act of February 19, 1903, making it an offense against the United* States to accept transportation of goods in interstate or foreign commerce at less than the carrier's published rates.*^^"^ Who May Raise Question of Constitutionality. — A law will not be de- clared invalid at the instance of one not aft'ected hy it ; hence persons not aff'ected by statutory provisions alleged to be unconstitutional have no standing to urge con- stitutional objections against the same.'"^*^ B. Carriers Subject to Act — 1. In General. — Express Companies. — The amendment to the Interstate Commerce Act by the Act of June 29, 1906, c. 3591, 34 Stat. 584, brought express companies within the terms of the act. The 477-60a. Delegation of powers to com- missions as excluding state action. — ]\Iis- souri Pac. R. Co. z\ Larabee Flour Mills Co., 211 U. S. G12. 53 L. Ed. 353, 29 S. Ct. 314. 477-61a. Power to make principal liable for acts of agents. — New York, etc., R. Co. z: United v^tates, 212 U. S. 481, 496, 53 L. Ed. 613, 29 S. Ct. 304. 477-61b. Effect upon exports. — Armour Packing Co. z: United States, 209 U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428. 477-61C. Preference of ports of one state over those of another. — -Armour Packing Co. V. United States, 209 U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428. 477-61d. Who may raise question of constitutionality. — Williams z\ Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137; At- lantic, etc., R. Co. V. Riverside IMills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164. Thus the constitutionality of the Act of Feb. 4. 1887. c. 104, § 8, 24 Stat. 386 (U. S. Comp. Stat. 1901, p. 3154), as amended by Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1909, p. 1163), ap- plicable to interstate carriers and impos- ing upon the initial carrier liability for loss regardless of whether the same oc- curred on its portion of the route or upon that of a connecting carrier, can not be attacked upon the ground that it deprives the receiving carrier of his liberty to select his own agencies for a continuous route of the transportation beyond his own line, where it appears that in the in- stant case the defendant had selected its own agencies and the connecting carriers and made its own arrangements and rates before receiving the goods in question for shipment. Atlantic, etc., R. Co. v. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 S. Ct. 164, followed in Louisville, etc., R. Co. v. Scott, 219 U. S. 209, 55 L. Ed. 183, 31 S. Ct. 171. ^ A corporate carrier engaged in inter- state commerce has no standing to object that the last paragraph § 1 (forbidding re- bates) of the Elkins Act (32 Stat. 847) is unconstitutional in that it applies to in- dividual carriers as well as those of a cor- porate character and' attributes the acts of the agents of such individual carriers to them, thereby making the crime of one person that of another, thus depriving the latter of due process of law and the pre- sumption of innocence which the law raises in his favor. Moreover this section of the statute is separable, and even if the presumption thus created as to individuals were unconstitutional, the act would still remain valid as to corporate carriers. New York, etc., R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304; New York, etc., R. Co. z'. United States, No. 2, 212 U. S. 500, 53 L. Ed. 624, 29 S. Ct. 309. 756 \'ol. MI. INTBRSTATB, ETC., COMMERCE. 478 express companies are therefore obliged to file and publish their rates for the transportation of property under § 6 of the Interstate Commerce Act thus as amended.*^ ■^^ Carriers by Water on Great Lakes. — Certain it is that, when engaged in carrying on traffic under joint rates with railroads, filed with the commission, the carriers (by water; are bound to deal upon like terms with all shippers who seek to avail themselves of such joint rates, and are subject to the general requirements of the act preventing and punishing the giving of rebates, the making of unjust discriminations, the showing of favoritism, and other practices denounced in the various sections of the act. They are undoubtedly subject to the provisions of § 12 of the act, which permits the commission to inquire into the management of business of all common carriers subject to the act, and to keep itself informed as to the manner and method in whicli the same is conducted, with the right to obtain from such common carriers the full and complete information necessary to enable the commission to carry out the objects for which it was created."-**^ Carriers in the Territories. — By the Act of June 29, 1906 (34 Stat, at L. 584, chap. 3591, L'. S. Comp. Stat. Supp. 1909, p. 1150j, the provisions of the In- terstate Commerce Act were extended to carriers engaged in the transportation of passengers or property from one state or territory of the United States to any other state or territory, or from one place in a territory to another place in the same territory .^^^ Same — Powers of Secretary of Interior Superseded. — The interstate commerce law preceded that which gave authority to the secretary of the interior to revise and modify railroad rates, and the authority was confined to that special exercise; and, so far, it may be said to have amended the Interstate Commerce Act. At that time it had been held in the Maximum Rate Cases (162 U. S. 184, 40 L. Ed. 935, 5 Inters. Com. Rep. 391, 16 Sup. Ct. Rep. 700, 167 U. S. 478. 42 L. Ed. 243, 17 Sup. Ct. Rep. 896, and 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. Rep. 45), that congress had not conferred upon the interstate commerce commission the legislative power to prescribe rates, either maximum, minimum or absolute The power to prescribe a rate was conferred by the amendment of June 29, 1S>06, and that amendment extended the provisions of the act for the first time to intra- territorial commerce. The amendment made the act completely comprehensive of the whole subject, and entirely superseded the minor authority which had been conferred upon the secretary of the interior.^^*^ 478-64a. Express companies. — Ameri- in the transportation of passengers or can Exp. Co. V. United States, 212 U. S. property from one state or territory of 522, 531, 53 L- Ed. 635, 29 S. Ct. 315. the United States to any other state or 478-64b. Carriers by water on Great territory, or from one place in a territory Lakes.— Interstate Commerce Comm. to another place in the same territory. V Goodrich Transit Co., 224 U. S. 194, 56 Interstate Commerce Comm. v. Humboldt L. Ed. 729, 32 S. Ct. 436. Steamship Co., 224 U. S. 474, 56 L. 478-640. Carriers in the territories. — In- Ed. 849, 32 S. Ct. 556. terstate Commerce Comm. i. Humboldt The authority of the secretary of the Steamship Co., 224 U. S. 474, 56 L. Ed. mterior to review and modify railwaj- 849, 32 ?. Ct. 556. rates in Alaska conferred upon him by 478-64d. Same — Powers of secretary of the Act of IMay 14, 1898 (30 Stat, at L. interior superseded. — Interstate Com- 409, chap. 299, U. S. Comp. Stat. 1901, p. merce Comm. v. Humboldt Steamship Co., 1576), § 2, was superseded by the amend- 224 U. S. 474, 56 L- Ed. 849, 32 S. Ct. 556. ment of June 29, 1906, to the Interstate Statute held applicable to Alaska. — Commerce Act, which gave to the inter- Alaska is a territory' of the United States state commerce commission the power to within the meaning of the Act of June prescriljc rates, and extended the pro- 29, 1906 (34 Stat, at L. 584, chap. 3591, visions of the act to intraterritorial com- U. S. Comp. Stat. Supp. 1909, p. 1150), merce. Interstate Commerce Comm. v. extending the provisions of the Inter- Humboldt Steamship Co., 224 U. S. 474, state Commerce Act to carriers engaged 56 L. Ed. 849, 32 S. Ct. 556. 757 479-480 INTBRSTATB, ETC., COMMERCE. Vol. VII. 3. Terms "Railroad" and "Transportation" Defined. — See note 68. C. Just and Reasonable Charges — 1. In Ge^neral. — See note 69. 3. Power to PrKscribe Rates. — Under the original act it was held in the maxi- mum rate cases'^^^ that congress had not conferred upon the interstate commerce commission the legislative power to prescribe rates, either maximum, minimum or absolute. But the power to prescribe rates was conferred by the amendment of June 29, 1906, and that amendment extended the provisions of the act for the first time to intraterritorial commerce. Under the amended act therefore, rates may not only be investigated and be pronounced unjust or unreasonable or discrimina- tory, but other rates may be prescribed.'^'*'' Conditioned upon Want of Reasonable and Satisfactory Route, etc.— The authority of the commission to establish through routes and joint rates is con- ditioned by the proviso that "no reasonable or satisfactory through route exists." (Act of June 29, 1906, chap. 3591, § 4, 34 Stat, at L. 589, U. S. Comp. Stat. Supp. 1909, p. 1158.) This condition is not addressed solely to the opinion of the com- mission, but may be re-examined by the courts as a jurisdictional fact.'''"*'' 479-68. "Transportation." — Transporta- tion within the meaning of the Interstate Commerce Act means not only the physi- cal instrumentalities, but all services in connection with receipt, delivery, and handling of property transported. South- ern R. Co. V. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 S. Ct. 140. Elevation of grain. — "The long mooted question as to whether elevation was such a part of transportation as to bring it within the jurisdiction of the interstate commerce commission was answered by the Act of June 29, 1906 (34 Stat, at L. 584, 590, chap. 3591, U. S. Comp. Stat. Supp. 1909, p. 1150), in which congress declared that the term 'transportation' shall include * * * all * * * facilities of shipment, * * * irrespective of ownership, * * * and all services in connection with the * * * elevation and transfer in transit * * * and handling of property trans- ported." Carriers were required "to pro- vide and furnish such transportation upon reasonable request therefor." Union Pac. R. Co. 7'. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 S. Ct. 39. 479-69. Just and reasonable charges — Power of commission to determine. — The commission is the tribunal that is in- trusted with the execution of the inter- state commerce laws, and has been given very comprehensive powers in the in- vestigation of and determination of the proportion which the rates charged shall bear to service rendered, and this power exists, whether the system of rates be old or new. If old, interests will have probably become attached to them, and, it may be, will be disturbed or disordered if they be changed. Such circumstance is, of course, proper to be considered, and constitutes an element in the problem of regulation, but it does not take jurisdic- tion away to entertain and attempt to re- solve the problem. Interstate Commerce Comm. V. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651. 480-74a. Power to prescribe rates — Maximum rates cases. — Cincinnati, etc., R. Co. t'. Interstate Commerce Comm., 162 U. S. 184, 40 L. Ed. 935, 16 S. Ct. 700; Interstate Commerce Comm. v. Cincin- nati, etc., R. Co., 167 U. S. 479, 42 L. Ed. 243, 17 S. Ct. 896; Interstate Commerce Comm. V. Alabama Mid. R. Co., 168 U. S. 144, 42 L. Ed. 414, 18 S. Ct. 45. 480-74b. Same — Under the amended act. — Interstate Commerce Comm. v. Hum- boldt Steamship Co., 224 U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556; Interstate Comm.erce Com. V. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; Southern Pac. R. Co. V. Interstate Commerce Comm'., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 288; Interstate Commerce Comm. V. Illinois, etc., R. Co., 215 U. S. 452, 478, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Commerce Comm. v. Northern Pac. R. Co., 216 U. S. 538, 54 L. Ed. 608, 30 S. Ct. 417; Interstate Commerce Comm. v. Chicago, etc., R. Co., 209 U. S. 108, 52 E. Ed. 705, 28 S. Ct. 493. 480-74C. Conditioned upon want or rea- sonable and satisfactory route. — Inter- state Commerce Comm. i'. Northern Pac. R. Co., 216 U. S. 538, 54 L. Ed. 608, 30 S. Ct. 417; Interstate Commerce Comm. v. Illinois, etc., R. Co., 215 U. S. 452, 478, 54 L. Ed. 280, 30 S Ct. 155; Interstate Com- merce Comm. V. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; Southern Pac. Co. z'. Interstate Commerce Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 288. See, also, as to judicial re- view, post, "Weight and Conclusiveness of Findings of Commission," IV, K, 2, f. If a complaint is made to the inter- state commerce commission concerning the unreasonableness of a rate, that body has the authority to examine the sub- ject, and, if it finds the rate complained of is, in and of itself, unreasonable, hav- ing regard to the service rendered, to order the desisting from charging such rate, and to fix a new and reasonable rate 758 Vol. MI. INTERSTATE, ETC., COMMERCE. 481 Right of Carrier to Prescribe Rate in First Instance. — See note 75. 4. DETERMINATION OF QUESTION OF Reasonabi^eness AND JUSTICE — c. In- terests to Be Considered. — In General. — From whatever standpoint the powers of the interstate commerce commission may be viewed, they touch many interests, they may have great consequences. They are expected to be exercised in the coldest neutrality. The commission was instituted to prevent discrimination be- tween persons and places. It would indeed be an abuse of its powers to exerci.se them so as to cause either. Therefore, the outlook of the commission and its powers must be greater than the interest of the railroads or of that which may affect those interests. It must be as comprehensive as the interest of the whole country, and if the problems which are presented to it are complex and difficult, the means of solving them are as great and adequate as can be provided." ^^ Interests of Particular Cities or Communities — Trade Zones. — As stated in the preceding paragraph, the commission was instituted to prevent discrimina- tion between persons and places, and it is expected to exercise its powers in the coldest mutuality. It would be an abuse of its powers to exercise them so as to cause either."^'' Industries Dependent upon Rates. — If the rates are old, interests will have probably become attached to them, and it may be that such interest will be disturbed or disordered if the rates be changed. Such circumstance is, of course. to be operative for a period of two years. Southern Pac. Co. v. Interstate Com- merce Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 28S. 481-75. Right to carrier to prescribe rate in first instance. — It must be remem- bered that railroads are the private prop- erty of their owners; that while, from the public character of the work in which they are engaged, the public has the power to prescribe rules for securing faithful and efficient service and equality between shippers and communities,- yet. in no proper sense, is the public a gen- eral manager. As said in Interstate Com- merce Comm. V. Alabama Mid. R. Co.. 168 U. S. 144, 172, 42 L. Ed. 414, 18 S. Ct. 45, quoting from the opinion in 5 Inters. Com., kep. 697, 21 C. C. A. 59, 41 U. S. App. 466, 74 Fed. 723: "Subject to the two leading prohibitions that their charges shall not be unjust or unreason- able, and that they shall not unjustly dis- criminate so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regu- late commerce leaves common carriers as they were at the common law, free to make special rates looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce and of their own situation and relation to it, and generally to manage their important interests upon the same principles which are regarded as sound and adopted in other trades and pursuits." Interstate Commerce Comm. v. Chicago, etc., R. Co., 209 U. S. 108, 52 L. Ed. 705, 28 S. Ct. 493. Railway companies may contract with shippers for a single transportation or for successive transportations, subject to a change of rates in the manner provided in the interstate commerce act. Judgment (C. C. 1905), 141 F. 1003, affirmed. In- terstate Commerce Comm. v. Chicago, etc., R. Co., 209 U. S. 108, 52 L. Ed. 705, 28 S. Ct. 493. 481-79a. Interest to be considered — In general. — Interstate Commerce Comm. v. Chicago, etc., R. Co.. 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; Interstate Com- merce Comm. V. Illinois, etc., R. Co., 215 U. S. 452, 478, 54 L. Ed. 280, 30 S. Ct. 155. 481-79b. Interests of particular cities of communities — Trade zones. — Interstate Commerce Comm. v. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946^ 30 S. Ct. 651; Interstate Commerce Comm. v. Illinois, etc., R. Co., 215 U. S. 452, 478, 54 L. Ed. 280, 30 S. Ct. 155. A reduction in that part of the through rates on Atlantic seaboard shipments to Missouri river cities which applies to the haul betvv^een the Mississippi and Missouri rivers is not beyond the power of the in- terstate commerce commission, as in- troducing a new system of rate making by artificially apportioning the country into zones tributary to given trade cen- ters, in order to build up or protect cer- tain distributing centers at the expense of others where the commission, by its or- der, intended only to correct through rates which it found upon complaint were unreasonable in themselves, by substitut- ing therefor reasonable rates. Intc-state Commerce Comm. v. Chicago, etc., R. Co., 218 U. S. 88. 54 L. Ed. 946, 30 S. Ct. 651; Interstate Commerce Comm. v. Chicago, etc., R. Co., 218 U. S. 113, 54 L. Ed. 959, 30 S. Ct. 660. reversing decrees Chicago, R. I. & P. P. Ry. Co. V. Interstate Com- merce Commission (C. C. 1909), 171 F. 680. 759 481 INTERSTATB, ETC., COMMERCE. Vol. VII. proper to be considered, and constitutes an element in the problem of regulation, but it does not take jurisdiction away to entertain and attempt to solve the prob- lem J ^"^ On the other hand, the order of the commission is void, where it mani- fests that that body did not merely exert the power conferred by law to correct an unjust and unreasonable rate, but that' it made the order which is complained of upon the theory that the power was possessed to set aside a just and reasonable rate lawfully fixed by a railroad whenever the commission deemed that it would be equitable to shippers in a particular district to put in force a reduced rateJ^*^ With Respect to Long and Short Hauls. — Fixing rates under substantially similar traffic conditions so as to allow a higher rate for a shorter route is not so palpably unjust and unreasonable to the carriers as to be beyond the substance, if not beyond the form, of the power of the interstate commerce commission, where the commission was simply maintaining the same ratio of difference as that made by the carriers themselves."^*' Income and Dividends. — If the carrier's total income enables it to declare a dividend, that would not justify an order requiring it to haul one class of goods for nothing, or for less than a reasonable rate. On the other hand, if the carrier earned no dividend, it would not have warranted an order fixing an unreasonably high rate on such article." ^^ Personal Preferences of Traveling Public. — If a reasonable and satisfac- tory through route exists, the commission can not establish a second such route partly over the same road and partly over different and competing roads, merely because the public would prefer such second route, where the result of its estab- lishment would be to place the competing lines on an equal footing with the other company as to the use of a portion of its route and at the same time divert from its route a large portion of its existing patronage."^° 481-79C. Industries dependent upon rates. — Interstate Commerce Comm. v. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 94G. 30 S. Ct. 651. 481-79d. Same — Reasonable rate not to be changed to protect certain interests. — Southern Pac. Co. z\ Interstate Com- merce Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 288. An order of the interstate commerce commission setting aside new rates on lumber from Willamette Valley points to San Francisco and bay points, and re- storing substantially the old rates, is void as beyond its powers, where, from the record and the opinion of the commission, and from the express exclusion of Port- land from the benefit of the reduced rate, and the reasons assigned for such ex- clusion, it is clear that the commission was not exercising its authority to con- demn unjust and unreasonable rates and fix reasonable ones, but was acting upon the assumption that it had the right to protect the lumber interests from the consequences of a change in rates, even if the change was from a rate which had been fixed unreasonably low, for the pur- pose of encouraging the industry, to a higher rate which is not in itself unjust or unreasonable. Southern Pac. Co. v. Interstate Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 288, reversing decree (C. C. 1910), 177 F. 963. The interstate commerce commission can not be said to have ordered a reduc- tion in the rates on lumber because of the effect upon the lumber industry of the carriers' action in advancing the rates, where, although the commission con- sidered that subject, its opinion, taken as a whole, affirmatively shows that it con- fined itself to the exercise of its statutory power to condemn unjust and unreason- able rates and fix reasonable ones. In- terstate Commerce Comm. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. 481-79e. With respect to long and short hauls. — Interstate Commerce Comm. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. When the commission maintained the same ratio of difference between Omaha and St. Paul as that made by the carriers themselves, it can not be fairly said that such an order was so arbitrary as to be palpably and gravely unjust, and beyond the substance, if not the form, of its oower. Interstate Commerce Comm. v. "Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. 481-79f. Income and dividends. — Inter- state Commerce Comm. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. 481-79g. Personal preferences of travel- ing public. — Interstate Commerce Comm. V. Northern Pac. R. Co., 216 U. S. 538, 54 L. Ed. 608, 30 S. Ct. 417. The personal preferences of many travelers for a southern route between 760 Vol. VII. INTERSTATE, ETC., COMMERCE. 482-483 e. Permanent Improvements and Equipments. — See note 81. 5. Terminal Charges. — See note 'lil. D. Special Rates, Rebates, etc.. Prohibited — 1. Unjust Discrimina- tions IN Rates Generally — z.]/^. Constitutionality of Statute — (1) General Power of Congress. — There can be no question as to the power of congress to reg- ulate interstate commerce to prevent favoritism and to secure equal rights to all engaged in interstate trade, and to this end congress had the constitutional power to adopt a policy looking to the equality of rates to shippers over interstate car- riers, and to prescribe appropriate means to give it effect.^^"^ (2) Making Principal Liable for Acts of His Agent. — There can be no ques- tion as to the power of congress to control those who are conducting interstate commerce by holding them responsible for the intent and purposes of the agents to whom they have delegated the power to act in the premises, and such provision of the statute is not unconstitutional upon the theory that it attributes the act of the agent to his principal, thereby making one person responsible for the crime of another, and thus depriving him of due process of law and of the presumption of innocence which the law raises in his favor.-*'" eastern points and points on the Northern Pacific Railway between Portland and Seattle do not make the through route via the Northern Pacific Railway unrea- sonable or unsatisfactory, so as to justify the interstate commerce commission in the exercise of its power under Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), to establish through routes and joint rates where "no reasonable or satisfactory through route exists," in ordering the establishment of through rates and joint rates between those points via the Union Pacific Rail- way, so as to put the latter road on an equal footing with the Northern Pacific Railway Company in the use for through travel of the road belonging to the latter between Portland and Seattle. Interstate Commerce Comni. z>. Northern Pac. R. Co., 216 U. S. 538, 54 L. Ed. 608, 30 S. Ct. 417. The commission had no power to make the order if a reasonable and satisfactory through route already existed, and the ex- istence of such a route may be inquired into by the courts. Interstate Commerce Comm. 7'. Northern Pac. R. Co., 216 U. S. 538, 54 L. Ed. 608, 30 S. Ct. 417. 482-81. Permanent improvements and equipment. — Expenditures for permanent improvements and equipment should not be charged to the current or operating expenses of a single year for the purpose of testing the reasonableness of an in- creased freight rate. Illinois Cent. R. Co. v. Interstate Commerce, 206 U. S. 441, 51 L. Ed. 1128, 27 S. Ct. 700. 482-82. Terminal charges — Separation of terminal and freight charges. — A terminal charge for delivering car loads of live stock to the Union Stock Yards in Chicago, a point beyond the carrier's line, if in itself just and reasonable, and sepa- rately stated in the tariff schedules, as re- quired by the Act of June 29, 1906 (34 Stat, at L. 584, chap. 3591, U. S. Comp, Stat. Supp. 1907, p. 892;, § 2, can not be condemned or the carrier required to re- duce it, on the ground that it, taken with prior charges or transportation over the lines of the carrier, or of connecting car- riers, makes a total charge to the ship- per unreasonable. Interstate Commerce Comm. V. Stickney, 215 U. S. 98, 54 L. Ed. 112, 30 S. Ct. 66. That which must be corrected and con- demned is not the just and reasonable terminal charge, but those prior charges which must of themselves be unreason- able in order to make the aggregate of the charge from, the point of shipment to that of delivery unreasonable and unjust. Interstate Commerce Comm. v. Stickney, 215 U. S. 98, 54 L. Ed. 112, 30 S. Ct. 66. In order to avail itself of the benefit of this rule, the carrier must separately state its terminal or other special charge com- plained of; for, if many matters are lumped in a single charge, it is impossible for either shipper or commission to de- termine how much of the lump charge is for the terminal or special services. In- terstate Commerce Comm. v. Stickney, 21 S U. S. 98, 54 L. Ed. 112, 30 S. Ct. 66. 483-86a. Constitutionality of statute — In general. — Louisville, etc., R. Co. v. Mottley, 219 U. S. 467. 55 L. Ed. 297, 31 S. Ct. 265; New York, etc., R. Co. v. United States, 212 U. S. 481, 496, 53 L. Ed. 613, 29 S. Ct. 304. See, also, ante, "Con- stitutionality." IV, A, 2. 483-86b. Making principal liable for the acts of his agent. — New York, etc., R. Co. V. United States, 213 U. S. 481. 496. 53 L. Ed. 613, 29 S. Ct. 301. See, also, ante, "Constitutionality," IV, A. 2. The act of the agent of a corporation engaged in interstate commerce while ex- ercising the authority delegated to him to make rates for transportation, may be controlled, in the interest of public policy. 761 483 INTERSTATE, ETC., COMMERCE. Vol. VII. (3) Who May Raise Constitutional Objections. — See ante, "Constitutionality," IV, A, 2. (4) Separability of Statute.— Even if this section of the Elkins law were un- constitutional as applied to individuals engaged in the business of interstate car- riage, it must still be sustained as to corporate carriers, since every act is to be con- strued so as to maintain its constitutionality if possible, and the valid provisions thereof upheld unless they are so interblended with the invalid ones that the whole must stand or fall together, and in this case there can be no question that congress would have applied these provisions to corporation carriers, whether individuals were included or not. In this view the act is valid as to corporations.'^^'' a>^. Purpose, Construction, Operation and Effect of Statute — (1) General Purpose of Statute. — The objects of the Elkins law are to prevent favoritism and to secure equal rights to all in interstate transportation, and one legal rate, to be published and posted so as to be open to public inspection and accessible to all alike ; to prohibit and punish secret departures from the published rates, and to prevent and punish rebating, preferences and all acts of undue discrimination ; and this without regard to whether persons or places be the sufferers.'^'^'* (2) Paramount in Its O/'^raliow.— Transactions to which this act relates being interstate in their character, the act is of paramount operation, and no state enact- ment can be of any avail, since the subject has been covered by an act of congress, acting within the limits of its constitutional powers.*^*"" by imputing his act to his employer and imposing penalties upon the corporation for which he is acting in the premises. New York, etc., R. Co. f. United States, 212 U. S. 481, 494, 53 L. Ed. 613, 29 S. Ct. 304. It is true that there are some crimes, which in their nature can not be com- mitted by corporations. But there is a large class of ofifenses, of which rebating under the federal statutes is one, wherein the crime consists in puiposely doing the things prohibited by statute. In that class of crimes corporations may be held re- sponsil)Ie for and charged with the knowl- edge and purposes of their agents, acting within the authority conferred upon them. New York, etc., R. Co. z'. United States, 212 U. S. 481, 494, 53 L. Ed. 613, 29 S. Ct. 304. Due process of law is not denied by the provisions of the Elkins Act of Feb- ruary 19, 1903 (32 Stat, at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), under which the commission by corporate officers, acting within the scope of their employment, of criminal violations of the prohibitions of that act against giving re- bates, is imputed to the corporation, and the corporation is subjected to criminal prosecution therefor. New York, etc., R. Co. V. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304. 483-86C. Separability of statute. — New York, etc., R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304, citing Berea College v. Kentucky, 211 U. S. 45, 55, 53 L. Ed. 81, 29 S. Ct. 33, and The Em- ployers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141. 483-86d. General purpose of statute. — • New York, etc., R. Co. v. United States, 212 U. S. 481, 495, 53 L. Ed. 613, 29 S. Ct. 304; New York, etc., R. Co. v. Interstate Commerce Comm., 200 U. S. 361, 399, 50 L. Ed. 515, 26 S. Ct. 272; Armour Packing Co. V. United States, 209 U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428; American Exp. Co. V. United States, 212 U. S. 522, 531, 53 L. Ed. 635. 29 S. Ct. 315; Interstate Com- merce Comm. V. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; In- terstate Commerce Comm. v. Illinois, etc., R. Co., 215 U. S. 452, 478, 54 L. Ed. 280, 30 S. Ct. 155. 483-86e. Paramount in its operation. — Chicago, etc., R. Co. v. United States, 219 U. S. 486. 55 L. Ed. 305, 31 S. Ct. 272. State law authorizing payment other than in money. — A state statute authoriz- ing a railway companj^ incorporated un- der the laws of the state to issue trans- portation in paym.ent for printing and advertising must give way, so far as inter- state transportation is concerned, before the provisions of the act to regulate com- merce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 rU. S. Comp. St. 1901,- p. 3154]), and Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1909, p. 1138), and Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909. p. 1149), amenda- tory thereof, under wliich a carrier can accept nothing but money in exchange for interstate transportation. Chicago, etc., R. Co. V. United States, 219 U. S. 486, 55 L. Ed. 305, 31 S. Ct. 272, affirming judgment in United States v. Chicago, I. & t. Ry. Co. (C. C. 1908), 163 F. 114. 762 Vol. MI. IXTERSTATE, ETC., COMMERCE. 483 (3j Jl'lwt Constitutes Foreign or Interstate Shipment zcitlii)i Meaning of Act. — Shipments under a through bill of lading from an interior point in the United States to a foreign port are embraced in the provisions of the Elkins Act of Feb- ruary 19, 1903, making it an offense against the United States to obtain the trans- portation of property in interstate or foreign commerce at less than the carrier's published rates.**^' (4) Embraces All Manner of Carriage, Gratuitous or Otherwise — (a) Gener- ally. — The power of cong-ress over interstate transportation embraces all manner of carriage, whether gratuitous or otherwise ; and except as to the express excep- tions made by the act itself, it must be held to have been the intention of congress to prevent a departure from the published rates and schedules in any manner whatsoever. The all embracing prohibition against either directly or indirectly charging was that the published rates show that the purpose of the statute was to make the prohibition applicable to every method of dealing by which the forbid- den result could be brought about. If this were not so, a wide door would be open to favoritism in the carriage of property free, or partially free, of charge.^^^ (b) Free Transportation b\ Express Companies. — The proviso to the Hepburn Act June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), following language appertaining solely to the carriage of passengers, that its pro- visions shall not be construed to prohibit the interchange of passes for the of- ficers, agents, and employees of common carriers and their families, or to pro- hibit any carrier from carrying passengers free in certain cases, does not embrace free transportation by express companies, although, by the terms of that act, ex- press companies are deemed common carriers.*^'' In view of the interpretation thus given to the act it can not be doubted that the gratuitous transportation of property, upon franks issued by express companies, is within the terms of the act, and that express companies are prohibited from giving free transportation of personal packages to their officers and employees and members of their families, and to the officers of other transportation companies, and members of their fam- ilies, in exchange for passes issued by the latter to the officers of the express com- panies, by the Elkins Act of Feb. 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), as amended by the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat. 584, 587 [U. S. Comp. St. Supp. 1907, pp. 892, 898]), which forbids all transportation of property at less than the published rates. -'^' 483-86f. What constitutes foreign or in- United States, 212 U. S. 522, 53 L. Ed. 635, terstate shipment within meaning of act. 29 S. Ct. 315. —Armour Packing Co. r. United States, 483-861. Same.— American Exp. Co. v. 209 U. S. 5(3. 52 L. Ed. 681, 28 S. Ct. 428; United States, 212 U. S. 522, 532, 53 L. Ed. affirming judgment (1907), 153 F. 1, 82 635, 29 S. Ct. 315, affirming United States C. C. 135; Chicago, etc., R. Co. v. United 5^,. Wells-Fargo Express Company (C. C), States, 209 U. S. 90, 52 L. Ed. 698, 28 S. jgl Fed. 606. €t. 439, affirming judgment (C. C A. without considering §§ 2. 3 of the In- 1907), 157 F. 830 See also, ante. When terstate Commerce Act of February 4, Protection Attaches, I, A, 4, a. ^ggg^ ^ ^^^^^ 24 Stat. 379, prohibiting ex- 483-86g. Embraces all manner of car- press companies from giving free trans- riage, gratuitous or otherwise — Generally. portation of personal packages to officers — American Exp. Co. z\ United States, 212 ^^id employees and members of their U. S. 522, 533, 53 L. Ed. 635, 29 S. Ct. 315; famihes and to officers of other transpor- United States v. Xew York, etc., R. Co., tation companies and members of their 212 U. S. 509, 53 L. Ed. 629, 29 S. Ct. 313; families in exchange for passes issued by Louisville, etc., R. Co. v. Mottley, 219 U. the latter to the officers of the express S. 467, 55 L. Ed. 297, 31 S. Ct. 265; New companies, it is held that such practice is York, etc., R. Co. v. Interstate Commerce forbidden by § 1 of Elkins law as Conim., 200 U. S. 361, 50 L. Ed. 515, 26 S. amended by the Hepburn Act of June 29, Ct. 272. See, also, ante, "All Commercial 1906, c. 3591, 34 Stat. 584-587, and that an Intercourse." II, A, 1, b, (3), (a), aa. injunction to restrain the giving of such 483-86h. Free transportation by ex- free transportation is authorized under press companies.— .\merican Exp. Co. v. § 3 of the Elkins law. American Exp. Co. 763 483 IXTERSTATE, ETC., COMMERCE. \'o\. VII. (5) Special Contracts JVaiving, Modifying, or Annulling Provisions of Act. — There is no provision excepting special contracts from the operation of the law. One rate is to be charged, and that the one fixed and published in the manner pointed out in the statute, and subject to change in the only way open by the stat- ute. There is no provision for the filing of contracts with shippers, and no method of making them public defined in the statute. If the rates are subject to secret alteration by special agreement, then the statute will fail of its purpose to estab- lish a rate duly published, known to all, and from which neither shipper nor car- rier may depart. ^^^ (6) Existing Contracts Laziful When Made. — [Manifestly, from the face of the commerce act itself, congress, before taking final action, considered the ques- tion as to what exceptions, if any, should be made in respect of the prohibition of free tickets, free passes, and free transportation. It solved the question when, without making any exceptions of existing contracts, it forbade by broad, explicit words any carrier to charge, demand, collect, or receive "a greater or less or dif- ferent compensation" for any services in connection with the transportation of passengers or property than was specified in its published schedules of rates ; and the courts can not add exceptions based on equitable grounds when congress for- bore to make such exceptions.^^'^ It follows, therefore, that there is no vested right in the shipper or in the carrier to have an agreement for free or reduced transportation or for rebates consummated by the payment of the rebate arranged for, or the performance of the stipulated service at the free or reduced rate. In other words, the power of congress to regulate commerce is not hampered by any obligation to preserve existing agreements intact or to deprive the parties thereto of the right to carry the same into execution only upon the payment of compen- sation for the rights thus injured or destroyed, but all such contracts must be considered as having been entered into subject to the power of congress at some future time to render the same illegal and impossible of performance through the enactment of statutes in the exercise of its power to regulate commerce. Were it otherwise, the extent to which the power of congress could be restricted would be measured only by the skill and foresight which designing parties could bring to bear in framing their agreements. ^^'' z: United States, 212 U. S. 522, 53 L. Ed. reversing 133 Ky. G52, 118 S. W. 982. See, 635, 29 S. Ct. 315. also, ante, "Private Contracts," II, A, 1, "If it is lawful, in view of the provisions b, (3), (b), oo. And see the title DUE of the Interstate Commerce Act, to issue PROCESS OF LAW, vol. 5, p. 575. franks of the character under considera- That such statutes are not ex post facto, tion in this case, then this right must be see ante, CONSTITUTIONAL LAW, p. founded upon some exception incorpo- 264. rated in the act." American Exp. Co. v. As to contracts and devices designed to United States, 212 U. S. 522, 533, 53 L. evade the liability imposed upon the mas- Ed. 635, 29 S. Ct. 315. ter by the Employers' Liability Acts, see 483-86J. Special contracts waiving, modi- ante, "Employers' Liability Acts," II, A, fying or annulling provisions of act. — 1, b, (3), (b), dd, (cc5^), eee. Armour Packing Co. v. United States, 209 A shipper is guilty of accepting trans- U. S. 56, 81, 52 L. Ed. 681, 28 S. Ct. 428; portation at less than the carrier's pub- Louisville, etc., R. Co. V. Mottley, 219 U. lished rates, in violation of Elkins Act S. 467, 55 L. Ed. 297, 31 S. Ct. 265. February 19, 1903, c. 708, 32 Stat. 847 (U. 483-86k. Existing contracts lawful when S. Comp. St. Supp. 1907. p. 880). where, made. — Louisville, etc.. R. Co. v. Mottley, after the carrier has duly established a 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265, higher rate, he secures such transporta- citing Yturbide v. United States, 22 How. tion at the rate agreed upon in a prior 290. 293, 16 L. Ed. 342. contract with the carrier, which was the 483-861. Same — No vested right. — New legal, published, and filed rate when the York, etc., R. Co. v. United States,' No. contract was made, since the statute, be- 2, 212 U. S. 500, 505, 53 L. Ed. 624, 29 S. ing then in force, is read into such con- Ct. 309; Armour Packing Co. v. United tract, and becomes a part of it. Armour States, 209 U. S. 56, 52 L Ed. 681, 28 S. Packing Co. v. United States, 209 U. S. Ct. 428; Louisville, etc.. R. Co. v. Mottlev, 56, 52 L. Ed. 681, 28 S. Ct. 428. Affirming 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265, judgment (1907), 153 F. 1, 82 C. C. A. 135; 764 Vol. VII. IXTBRSTATE, ETC., COMMERCE. 483 Where Property Transported before Statute Went into Effect. — And this is true, with respect to contracts for rebates, even though the property was transported before the act went into effect. The fact that the contract has been carried out to that extent confers no vested right upon the shipper to have it completed by the payment of the rebate agreed upon.'^'^'" (7) Character of Compensation; Payment Only in Money. — A carrier engaged in interstate commerce can not lawfully charge, collect, or receive anything but money for transportation on its road since the enactment of the Act of June 29, 1906 (34 Stat, at L. 584, chap. 3591, § 6 (U. S. Comp. Stat. Supp. 1909, p. 1149), prohibiting any carrier from demanding, collecting, or receiving "a greater or less or different compensation" for the transportation of persons or property, or for any service in connection therewith, than that specified in its published sched- ule of rates.^^'^ It is expressly prohibited to any carrier, unless otherwise pro- vided, to demand, collect, or receive "a greater or less or different compensation" for the transportation of persons or property, or for any service in connection therewith, than the rates, fares, and charges specified in the tariff' filed and in ef- Chicago, etc., R. Co. v. United States, 209 U. S. 90. .52 L. Ed. G98, 2S S. Ct. 439, af- firming judgment (C. C. A. 1907), 157 F. 830. Agreements for free passes in settle- ment of claim for damages. — Congress, in the exercise of its power over commerce, could enact the provisions of Act June 26, 1906, c. 3591, § 6, 34 Stat. 592 (U. S. Comp. St. Supp. 1909, p. 1163), which ren- dered unenforceable a prior contract, valid when made, by which an interstate car- rier agreed to issue annual passes for life in consideration of a release of a claim for damages. Louisville, etc., R. Co. v. Alottley, 219 U. S. 467. 55 L. Ed. 297, 31 S. Ct. 265, reversing decree (1909), 118 S. W. 9S2. 133 Ky. 652. The constitutional libertj^ of the citizen to make contracts was not infrineed bv the enactment by congress, in the exercise of its power over commerce, of the pro- visions of Act June 29, 1906, c. 3591, § 6, 34 Stat. 592 (U. S. Comp. St. Supp. 1909, p. 1163), which rendered unenforceable a prior contract, valid when made, by which an interstate carrier agreed to issue an- nual passes for life in consideration of a release of a claim for damages. Louis- ville, etc.. R. Co. V. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265, reversing de- cree (1909L 118 S. W. 982, 133 Ky. 652. An agreement by an interstate carrier to issue annual passes for life in con- sideration of a release of a claim for dam- ages, though entered into prior to Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), was made unenforceable by the prohibition of § 6 (Page 1163) of that act, against demand- ing, collecting, or receiving "a greater or less or different compensation" for the transportation of persons or property, or for anv service in connection therewith, than that specified in the carrier's pub- lished schedule of rates. Louisville, etc.. R. Co. V. :\lottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265, reversing decree (1909), 118 S. \V. 982, 133 Ky. 652. The agreement between the railroad company and the Mottleys must neces- sarily be regarded as having been made subject to the possibility that, at some future time, congress might so exert its whole constitutional power in regulating interstate commerce as to render that agreement unenforceable, or to impair its value. That the exercise of such power may be hampered or restricted to any ex- tent by contracts previously made be- tween individuals or corporations is in- conceivable. The franiers of the constitu- tion never intended any such state of things to exist. Louisville, etc., R. Co. i'. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. 483-86m. Where property transported before statute went into effect. — Xew York, etc., R. Co. zk United States, No. 2, 212 U. S. 500, 505, 5'3 L. Ed. 624, 29 S. Ct. 309. See, also, ante, "Private Contracts," IL A, 1, b, (3), (b), oo. The payment of a rebate after the pas- sage of Elkins Act, February 19, 1903, c. 708. 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), but upon shipments of prop- erty' transported prior to that enactment, is comprehended by its provisions that it shall be unlawful to offer, grant, or give, or to solicit, accept, or receive any re- bate in respect to property in interstate commerce transportation, whereby any such property shall be transported at less than the published rates. Judgment (C. C. 1906), United States v. New York Cent. & H. R. R. Co., 146 F. 298; Same v. Guilford, Td., affirmed. New York, etc., R. Co. r. United States. No. 2. 212 U. S. 500. .-).-] L. Ed. 624, 29 S. Ct. 309. 483-86n. Character of compensation — Payment only in money. — Louisville, etc., R. Co. r. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265, reversing decree (1909), 118 S. W. 982, 133 Kv. 652: Chicago, etc., R. Co. V. United States. 219 U. S. 486, 55 L. Ed. 305, 31 S. Ct. 272. 765 483 INTERSTATE, ETC., COMMERCE. Vol. VIL feet at the time. It can not be supposed that this change was without a distinct purpose on the part of congress. The words "or different," looking at the con- text, can not be regarded as superfluous or meaningless. The words of the act, therefore, must be taken to mean that a carrier engaged in interstate commerce can not charge, collect, or receive for transportation on its road anything but money. ^*'° (8) Knowledge, Intent, Good Faith, etc. — In so far as Elkins Act, § 1 (Act Feb. 19, 1903, c. 708, 2,2 Stat. 847 [U. S. Comp. St. Supp. 1905, p. 599]), pro- vided for punishment of corporate carriers in granting, and corporate shippers in knowingly accepting, rebates or discrimination from legal rates and tariff's, it was not abrogated or repealed by the Hepburn Act (Acts June 29, 1906, c. 3591, 34 Stat. 584), but was preserved, and so far as it provided for the punishment of such acts when not knowingly done, it was repealed.^^^ Therefore, intentionally accepting transportation of goods in interstate or foreign commerce at less than the carrier's published rates, which is forbidden by the Elkins Act of February 19, 1903, is sufficient to sustain a conviction under that act, although such action may have been taken in good faith, under a claim of legal right.^*'" (9) Secret or Fraudulent Device or Contrivance. — A device or contrivance, secret or fraudulent in its nature, is not essential to sustain the conviction of a shipper for violating the Elkins Act of February 19, 1903 (32 Stat, at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), making it a criminal offense for any -person or corporation to oft'er, grant, solicit, give, or to accept or receive, any rebate, concession, or discrimination in respect to transportation of property in interstate or foreign commerce, whereby any such property shall, by any device 483-860. Same — Words, "or- different" compensation construed. — Louisville, etc., R. Co. V. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. The legislative department intended that all who obtained transportation on interstate lines should he treated alike in the matter of rates, and that all who availed themselves of the services of the railway company (with certain Specified exceptions) should be on a plane of equality. Those ends can not be met otherwise than by requiring transporta- uon to be paid for in money, which has a certain value, known to all, and not in commodities or services, or otherwise than in money. " Chicago, etc., R. Co. v. United States, 219 U. S. 486, 55 L. Ed. .305, 31 S. Ct. 272. Annual passes in consideration of re- lease of claim for damages. — An inter- state carrier can not make a valid con- tract to issue annual passes for life in consideration of a release of a claim for damages, since the enactment of the .\ct of June 29, 1906, § 6, expressly prohibiting any carrier from demanding, collecting, or receiving "a greater or less or dif- ferent compensation'" for the transporta- tion of persons or property, or for anj' service in connection therewith, than that specified in its published schedule of rates. Louisville, etc., R. Co. i'. ]Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265, reversing 133 Ky. 652, 118 S. W. 982. Acceptance of advertising in lieu of money. — The acceptance of advertising by a carrier in lieu of money in payment of interstate transportation furnished to the publisher, his employees, and the imme- diate members of his and their families, violates tlie provisions of the act to regu- late commerce (Act February 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), and Act l-ebruary 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1909, p. 1138), and Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), amendatory thereof, prohibiting the furnishing of interstate transportation for a less or different compensation than that specified in the carrier's published rates. Chicago, etc., R. Co. v. United States, 219 U. S. 486. 55 L. Ed. 305, 31 S. Ct. 272, affirming judgment in United States t'. Chicago, I. & L. Ry. Co. (C. C. 1908), 163 F. 114. State law authorizing payment other than in money. — See ante. "Paramoimt in Its Operation." IV, D, 1, ^l2, (2). 483-86p. Knowledge, intent, good faith, etc. — Great Northern R. Co. v. United States, 155 Fed. 945, 84 C. C. A. 93, judg- ment affirmed in Great Northern R. Co. V. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 483-86q. Same. — Armour Packing Co. v. United S'tates, 209 U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428, affirming judgment (1907), 153 F. 1, 82 C. C. A. 135; Chicago, etc., R. Co. V. United States, 209 U. S. 90. 52 L. Ed. 698, 28 S. Ct. 439, affirming judgment (C. C. A. 1907), 157 F. 830. 766 Vol. VII. INTERSTATE, ETC., COMMERCE. 483 whatever, be transported at less than the carrier's published rates, or wh.ereby any other advantage is given or discrimination practiced.^**"" (10) Posting of Rates Not Necessary Element of Offense. — Compliance with the requirements of § 6 of the Act to Regulate Commerce of June 29, 1906, that copies of schedules and tariffs for the use of the public shall be "posted" in two public and conspicuous places in every depot, so as to be readily accessible to the public, is not essential to bring a tariff within the provision of such act making it a misdemeanor for any shipper knowingly to solicit, accept, or receive a rebate or concession whereby property is transported in interstate commerce at a less rate than that named in the tariff's "published and tiled" by such carrier, as pub- lication is a step in establishing rates, while posting is a duty arising from the fact that they have been established. ^'^^ (11; Liability of Carrier Participating in Joint or Tliroitgh Rate. — A carrier which gives rebates from a joint rate on file with the interstate commerce com- mission may, although it did not itself publish and file the rate, be convicted of violating the Elkins Act of February 19, 1903 (32 Stat, at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), which, inter alia, provides that the published rate shall be conclusively deemed, in any prosecution under the act, to be the le- gal rate as against the carrier who files the same or "participates in any rates so filed or published," and that any departure from such rate shall be deemed to be an offense under the act.'^"* Not Essential to Commission of Offense That Joint through Rate Should Have Been Published and Filed, — It is not essential, however, to the commission of the offense of giving a concession from a through rate over con- necting lines of railroad, under the Elkins Act of February 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880], that the rate be a joint one es- tablished by all of the carriers and published and filed with the interstate com- merce commission. If an initial carrier accepts traffic for transportation, and is- sues its bill of lading over a route made up of connecting roads for which no joint through rate has been published and filed with the commission, the lawful rate to be charged is the sum of the established local rates published and filed by the individual roads; or if there is a local rate over one road and a joint rate over the others for the remainder of the route, all published and filed with the commission, the lawful through rate to be charged is the sum of the local and joint rates. ^^" 483-86r. Secret or fraudulent device or under the Elkins Act for the offense of re- contrivance. — Armour Packing Co. i'. bating where it is a party to the joint United States, 209 U. S. 56, 52 L. Ed. 681, rate although it has not filed and pub- 28 S. Ct. 428, affirming judgment (1907), lished the same itself. While it is used 153 F. 1, 82 C. C. A. 135; Chicago, etc., R. for the initial carrier to file such joint Co. V. United States. 209 U. S. 90, 52 L. tariffs, the fact that it was filed by an- Ed. 698, 28 S. Ct. 439, affirming judgment other carrier participating therein is im- (C. C. A. 1907), 157 F. 830. material, since § 1 of the Elkins Law 483-86S. Posting of rates not necessary brings all the carriers who have partici- element of offense. — United States v. pated in any rate filed or published within Miller, 223 U. S. 599, 56 L. Ed. 568, 32 S. the terms of the act, as much so as if the Ct. 323. See, also, Texas, etc., R. Co. i'. tariff had been actually published and Cisco Oil Mill, 204 U. S. 449, 51 L. Ed. filed by such participating carrier, for the 562, 27 S. Ct. 358; Kansas City, etc., R. statute specifically provides that the pub- Co. V. Albers Comm. Co., 223 U. S. 573, lished rate shall be conclusively deemed 56 L. Ed. 556, 32 S. Ct. 316. And see post, in any prosecution under the act to be "Manner of Publication." IV. H. 1, d. the legal rate as against the carrier who 483-86t. Liability of carrier participating files the same, or "participates in any in joint or through rate. — United States rates so filed and published."' United V. Xew York, etc., R. Co., 212 U. S. 509, States v. New York, etc., R. Co., 212 U. 53 L. Ed. 629, 29 S. Ct. 313, reversing (C. S. 509. 53 L. Fd. fi?9. 29 S. Ct. 313. See, C), 157 Fed. 293. See. also, post, "joint also, post, "Joint Tariffs of Rates," IV, Tariffs of Rates," IV, H, 4. H, 4. An interstate carrier may be prosecuted 483-86u. Not essential to commission 767 483 INTERSTATE, ETC., COMMERCE. Vol. VII. Where Connecting Carrier Has Contracted Not to Increase Rates. — The acceptance by an initial carrier of a through shipment to be carried at less than the lawful rates is not rendered lawful by the fact that such carrier had a contract with a connecting carrier whose line formed a part of the through route that the latter would not increase its rate during a certain time and on the faith of such contract made a similar contract with the shipper, where in the mean- time the connecting carrier had in fact published and filed with the commission a new schedule increasing the rate.^*^^ No Previous Formal Contract Necessary to Bring Carriers within Op- eration of Law. — In the concert of action, in the successive receipt and move- ment of traffic by connecting carriers under through bills of lading for continu- ous carriage, is manifested the common arrangement contemplated by the interstate commerce laws, and no previous formal contract is necessary to bring the car- riers under the provisions of the law.''^'^^ Liability of Connecting Carrier for Acts of Initial Carrier. — It is the duty of a connecting carrier to take the cars as they are delivered to it by the ini- tial carrier, and in so doing it is not liable for a discrimination practiced by the initial carrier merely because such connecting carrier has participated in the adoption of a joint through rate, reasonable in itself, notwithstanding the provi- sion contained in § 8 of the Act of February 4, 1887, ch. 104, 24 Stat. 379, that a carrier which "shall do, cause to be done, or permit to be done, any act, matter or thing in this act prohibited or declared to be unlawful" shall be liable to the full amount of the damages sustained by one injured thereby.^**'' (12) When Offense Complete. — The offense of giving rebates in violation of the Elkins Act of February 19, 1903, c. 708, Z2 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), is not complete nor the offense committed until the carrier, to whom the shipper has paid the full legal rate, has refunded to the shipper, upon a claim presented by him, a part of the legal rate already paid.'^*^^ It follows, therefore, that the Elkins law applies and that a prosecution thereon may be sus- tained where the agreement for the rebate was made and the property trans- ported pursuant thereto before the Elkins law went into effect, notwithstanding of offense that joint through rate should initial carrier is not liable for a discrimi- have been published and filed. — Chicago, nation in favor of shippers of oil in tank etc., R. Co. z'. United States (C. C. A.), cars and against shippers of oil in barrels, 157 Fed. S30, affirmed in Chicago, etc., R. which may be practiced by the initial Co. V. United States, 209 U. S. 90, 52 L. carrier, merely because such connecting Ed. 698, 28 S. Ct. 439. carrier has participated in the adoption of 483-8ev. Where connecting carrier has a joint through rate for barrel shipments, contracted not to increase rates.— Chi- which is, in itself, reasonable, although, cago, etc.. R. Co. v. United States (C. C. l^Y Act February 4, 1887, c. 104, § 8, 24 A.), 157 Fed. 830, affirmed in Chicago, Stat. 379. a earner which "shall do, cause etc., R. Co, r. United State'-, 209 U. S. ^o be done, or permit to be done, any 90, 52 L. Ed. 698, 28 S. Ct. 439.' ' ' act, matter, or thing in this act pro- 483-86W. No previous formal contract fibited or declared to be unlawful," shall necessary to bring carriers within the '^^ ^'^^'^^ ^o the full amount of the dam- ^r^^r-^ir-,^'^ ^f 4.v,.> lo,., n\.;^^^ I- -u ages sustamed by one m'ured thereby. operation or the law. — Lnicago, etc., K. t iA i. tut ,,. ^^ -^^ r o n t> pT TT u J Ct t m n A \ ic- TT J udginent. Western acw y ork & P. R. Co. V. United States (C. C. A.), 157 Fed. ,-' td r> c • n /^nr,rr\ -lor. -a- oon cc J • n\ ■ t -D n Co. T'. Penn Rennins- Co. (1905). 137 F. 830, amrmed in Chicago, etc., R. Co. z'. o A TT c t^n -o T T1' J or^c, 343, 70 C. C. A. 23, amriiied. Penn Renn. United States, 209 U. S. 90, o2 L. Ed. 698, ^ ' -iir , i t> r> oao tt c .t,-.o oa Q Pf 4QQ '^o- ''• Western, etc., R. Co., 208 U. S. 208, ..» 5. ^l. 4rfy. _ _ 52 i^ £d 456_ 28 S. Ct. 268. 483-86X. Liability of connecting earner 483-86y. When offense complete.— Nen' for acts of initial carrier. — Penn Refin. York, etc., R. Co. :■. United States, 212 U. Co. V. Western, etc.. R. Co., 20S U. S. s. 481. 53 L. Ed. 613, 29 S. Ct. 304,' affirm- 208, 52 E. Ed. 456, 28 S. Ct. 268, affirming j^g (C. C), 146 Fed. 298; New York, etc., 137 Fed. 343, 70 C. C. A. 23. r. Co. v. United States, No. 2, 212 U. S. A connecting carrier which takes the 500, 505, 53 L. Ed. 624, 29 S. Ct. 309. cars as they are delivered to it by the 768 Vol. VII. INTERSTATE, ETC., COMMERCE. 483-484 the actual refunding of a part of the legal rate was not made until after the law went into effect. ""'^ Separate and Continuing Offenses. — \\ here pursuant to a previous agree- ment, preceding transportation, a number of separate shipments are made and the full legal rate paid thereon, and afterwards claims of the shipper for the re- bates stipulated in such agreement are presented at short intervals and paid by- checks to the shipper, the offense is not a single and continuing one, but there was a complete and separate offense upon the making of each payment by the railroad company of the stipulated rebate.'*''^'' (13) Amcnd)ncnt and Repeal of Act. — As to Elements of Knowledge, In- tent, Good Faith, etc. — See ante, "Knowledge, Intent, Good Faith, etc.," IV, D, 1, ai2, (8). Effect upon Past Offenses, Pending Causes, etc. — Eff'ect must be given, in construing a repealing act, to the general saving clause in U. S. Rev. Stat., § 13, U. S. Comp. Stat. 1901, p. 6, prescribing the effect of repealing acts on exist- ing penalties, forfeitures, and liabilities, unless, either by express declaration or necessary implication arising from the terms of the repealing law as a whole, it results that the legislative mind will be set at naught by giving eff'ect to such sav- ing clause.^"'''' The exception from the operation of the provision repealing con- flicting laws, which is made by the Hepburn Act of June 29, 1906 (34 Stat, at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), § 10, in favor of causes pending in the federal courts, which "shall be prosecuted to conclusion in the manner heretofore provided by law," was addressed solely to the procedure to be followed in pending cases, and such section, therefore, does not supersede the general provision of U. S. Rev. Stat., § 13, saving existing forfeitures, penalties, or liabilities from repeal, so as to prevent future criminal prosecutions for of- fenses agamst the Elkins Act of Feb. 19, 1903 (32 Stat, at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), committed prior to the adoption of the later statute.-^'-^'^ b. Like and Contemporaneous Service under Similar Conditions — (2) Compe- tition. — See note 89. 483-86Z. Carrying out of existing agree- clause, by treating it as saving causes ments after statute went into effect. — then pending in the courts from what, in New York, etc.. R. Co. v. United States, its absence, and in the presence of the No. 2, 212 U. S. 500, 505, 53 L. Ed. 624, general saving clause, will be the efifect 29 S. Ct. 309. See, also, ante, "Existing on them of the amendments in that act. Contracts Lawful When ]\Iade," IV, D, 1, It does not necessarily supersede the gen- a^2, (6). eral saving clause. Great Northern R. 483-86aa. Separate and continuing of- Co. v. United States, 155 F. 945, 84 C. C. fenses. — New York, etc., R. Co. f. United A. 93, judgment affirmed. Great Northern States. 212 U. S. 481, 53 L. Ed. 613, 29 S. R. Co. "•. United States, 208 U. S. 452. 52 Ct. 304. L. Ed. 567, 28 S. Ct. 313. 483-86bb. Effect upon past offenses, 484-89. Competition— When considered, pending causes, etc. — Great Northern R. — Railway companies, in fixing their rates, Co. V. United States, 208 U. S. 452, 52 L. may take into account competition with Ed. 567, 28 S. Ct. 313. other carriers, provided that such compe- 483-86CC. Same. — Great Northern R. Co. tition is genuine. Judgment (C. C. 1905), V. United States, 208 U. S. 452, 52 L. Ed. 141 F. 1003, affirmed. Interstate Com- 567, 28 S. Ct. 313. merce Comm. v. Chicago, etc., R. Co., 209 The special saving clause in Hepburn U. S. 108, 52 L. Ed. 705, 28 S. Ct. 493. Act (Act June 29. 1906, c. 3591, 34 Stat. A genuine competition which results in 584), § 10, does not mention the particular a reduction of freight rates negatives any subject of the general saving clause in unlawful intent on the part of the carrier, Rev. St., § 13 fU. S. Comp. St. 1901, p. and leaves open only the question as to 6], as to the effect on existing penalties. whether the rates, as established, work an forfeitures, and liabilities of a repealing undue preference or discrimination. Judg- act, and can be accorded reasonable ment (C. C. 1905), 141 F. 1003, affirmed, operation, consistently with the true in- Interstate Commerce Comm. v. Chicago, tent of its language and with the undis- etc., R. Co., 209 U. S. 108, 52 L. Ed. 705, turbed operation of the general saving 28 S. Ct. 493. 12 U S Enc— 49 769 484 INTBRSTATB, ETC., COMMERCE. Vol. VII. (3) Discriminations Based on Oivnersliip; Aggregation of Sliipments by For- warding Agents, etc. — The ownership or nonownership by the shipper of the goods tendered for carriage is not a dissimilar circumstance and condition, within the meaning of Act Feb. 4, 1887, c. 104, § 2, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3155), prohibiting inequality and discrimination in rates.*^^ A carrier may not, therefore, under the Interstate Commerce Act (Act February 4, 1887, ch. 104, 24 Stat. 379, U. S. Comp. Stat. 1901, p. 3154) make the ownership of goods tendered to it for carriage the criterion by which its charge for such carriage is to be measured. ^^^ Aggregation of Shipments by Forwarding Agents — Construction of Act. — The settled construction of the equality clause of the English Railway Clauses Consolidation Act of 1845, as forbidding the charging of a higher rate for the carriage of goods for an intercepting or forwarding agent than for others, applies in construing the provisions of the Act of February 4, 1887, § 2, which were substantially taken from the English statute.^^'^ Forwarding Agent a "Person" within Meaning of Act. — A forwarding agent is a person within the meaning of the Interstate Commerce Act of Febru- ary 4, 1887, c. 104, § 2, 24 Stat. 379, U. S. Comp. Stat. 1901, p. 3155, forbidding preferences and discriminations in rates. ^^"^ Therefore a carrier may not forbid the aggregation of the shipments of various owners for the purpose of carload rating in official classification territory, or the combination of such shipments by forwarding agents for that purpose, where preferences and discriminations for- bidden by the Act of February 4, 1887, § 2, will result from the carrier's ac- tion.s9e 484-89a. Ownership or nonownership not a dissimilar circumstance or condi- tion. — Interstate Commerce Comm. z: Delaware, etc.. R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 S. Ct. 392, reversing (C. C), 166 Fed. 499. 484-89b. Same. — Interstate Commerce Comm. V. Delaware, etc., R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 S. Ct. 392, revers- ing decree in Delaware, L. & W. R. Co. V. Interstate Commerce Commission (C. C. 1908). 160 F. 499. 484-89C. Aggregation of shipments by forwarding agents — Construction of act. — Interstate Commerce Comm. v. Dela- ware, etc., R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 S. Ct. 392. It is not open to question that the pro- visions of § 2 of the act to regulate com- merce were substantially taken from § 90 of the English Railway Clauses Consoli- dation Act of 1845, known as the "equality clause." Texas, etc., R. Co. i'. Interstate Commerce Comm., 162 U. S. 197, 222, 40 L. Ed. 940, 16 S. Ct. 661. Certain also is it that, ai the time of the passage of the act to regulate commerce, that clause in the English act had been construed as only embracing circumstances concern- ing the carriage of the goods, and not the person of the sender; or, in other words, that the clause did not allow carriers by railroad to malie a difference in rates be- cause of differences in circumstances aris- ing either before the service of the car- rier began or after it was terminated. It was therefore settled in England that the clause forbade the charging of a higher rate for the carriage of goods for an inter- cepting or forwarding agent than for oth- ers. Great Western R. Co. v. Sutton (1869) L. R. 4 H. L. 226; Evershed v. London & N. W. R. Co. (1878) L. R. 3 App. Cas. 1029. 5 Eng. Rul. Cas. 351, and Denaby Main Colliery Co. v. Manchester, S. & L. R. Co. (1885) L. R. 11 App. Cas. 97. Interstate Commerce Comm. v. Dela- ware, etc.. R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 S. Ct. 392. 484-89d. Same — Forwarding agent a "person" within meaning of act. — Inter- state Commerce Comm. z'. Delaware, etc.. R. Co., 220 U. S. 235, 55 L. Ed. 448, 3lS. Ct. 392, reversing Delaware, etc., R. Co. z'. Interstate Commerce Commission (C. C. 1908). 166 Fed. 499. 484-89e. Same. — Interstate Commerce Comm. V. Delaware, etc., R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 S. Ct. 392, revers- ing decree, Delaware, etc., R. Co. v. In- terstate Commerce Commission, 166 Fed. 499. The proposition that, as the wide range of carload rates and the extent of the facility for combining articles for the pur- pose of obtaining such rates allowed in official classification territory are the re- sult of the voluntary act of the railroads, therefore the power existed in the rail- roads to restrict and limit the enjoyment of such rate, as was done by the assailed rules, rests upon the fallacious assump- tion that because a carrier has the au- thority to fix rates, it has the right to 770 Vol. VII. INTERSTATE, ETC., COMMERCE. 484 (4) Discrunination as betzvecn Different Commodities. — See post, "As between Commodities and Localities," IV, E, 1, c, (4). (5) Discrimination in Rates Based upon Difference in Facilities — (a) Dis- crimination in Faz'or of Carriers by Reason of Their Superior Facilities. — Dif- ferences with respect to competition between coal intended for railway consump- tion and other coal, and with respect to the manner of deliver}^ depending upon a difference in the facilities possessed by the railroads and other consignees, do not make the interstate traffic therein dissimilar in circumstances and conditions, wathin the meaning of the Interstate Commerce Act of February 4, 1887 (24 Stat. at L. 380, chap. 104, U. S. Comp. Stat. 1901, p. 3155), § 2, so as to justify the giving of a lower rate for the transportation of railway fuel coal than is given to shippers of other coal between the same points. ^^^ (b) Allozvance for Privately Ozvned Facilities — aa. In General. — The Inter- state Commerce Act contemplates that interstate carriers may use facilities owned by the shipper and make compensation therefor, and by § 12 of the Act of June 18, 1910, ch. 309, it is expressly provided that: "If the owner of property transported under this act directly or indirectly renders any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the commission may after hearing on a complaint or on its own initiative, deter- mine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so fur- nished, and fix the same by appropriate order, which order shall have the same force and efifect and be enforced in like manner as the orders above provided for under this section" (36 Stat, at L. 553). It thus appears that the statute, while recognizing that the carrier may lawfully make compensation for services ren- dered or facilities furnished by the shipper, also recognizes that such transac- tions may be made the cloak for the granting of reduced rates, secret rebates, and other abuses, and carefully provides that such charge and allowance therefor shall be no more than is just and reasonable, and gives the commission power to determine what is such just and reasonable charge.^^s fhe compensation con- discriminate as to those who shall be en- roads and other consignees, and it was titled to avail themselves of them. In- urged that the shipment of the fuel coal terstate Commerce Comm. z\ Delaware, to a particular railroad "for the use of etc., R. Co., 220 U. S. 235, 55 L. Ed. 448, that railroad" makes special the traffic. 31 S. Ct. 392. And, further, that "a railroad is not a 484-89f. Discrimination in favor of car- person," but is "rather in the nature of a riers by reason of their superior facilities. geographical division and extends through — Interstate Commerce Comm. v. Balti- long distances." The court held that it more, etc., R. Co., 225 U. S. 326, 56 L. Ed. could not accept the likeness nor the dis- 1107, 32 S. Ct. 742. tinctions which were said to establish it, In its most abstract form the simple and that the railroad company could not statement of the controversy is whether be put out of view as a favored shipper, the companies may charge a different rate Interstate Commerce Comm. v. Baltimore, for the transportation of fuel coal to a etc.. R. Co., 225 U. S. 326, 56 L. Ed. 1107, given point than for the transportation of 32 S. Ct. 742. a commercial coal to the same point. The 484-89g. Allowance for privately owned commission insisted upon the simplicity facilities. — Penn Refin. Co. v. Western, of the problem and contended that there etc., R. Co., 208 U. S. 208, 52 L. Ed. 456, was nothing in the conditions of the 28 S. Ct. 268; Chicago, etc., R. Co. 7/. traffic which dispensed with the clear le- United States, 156 Fed. 558, 84 C. C. A. gal duty of the companies under the In- 324, affirmed, Chicago, etc., R. Co. v. terstate Commerce Act to carry for all United States, 212 U. S. 563, 53 L. Ed. shippers alike. The fuel and commercial 653, 29 S. Ct. 689; Interstate Commerce coal went to the same point, and were Comm. v. Diffenbaugh, 222 U. S. 42, 56 delivered at the same point. There was, L. Ed. 83, 32 S. Ct. 22; Union Pac. R. Co. it is true, a difference in the manner of v. Updike Grain Co., 222 U. S. 215, 56 L. delivery, depending upon the diiTerence Ed. 171, 32 S. Ct. 39. in the facilities possessed liy the rail- 771 484 INTERSTATE, ETC., COMMERCE. Vol. VII. templated by this section for the use of facihties furnished by the shipper is not necessarily .unlawful because it works a disadvantage to other shippers of the same commodity who do not own such facilities or who can not use them to ad- vantage. In short, the law does not attempt to equalize fortune, opportunities or abilities. *^'^'^ On the other hand, the facility for the use of which compensation is made must be one which the carrier uses in interstate commerce. It is not law- ful to make compensation or allowance to the shipper for facilities used merely for the purpose of bringing his products from his factory or mine out to the car- rier's road where they may be taken up and started on their interstate journey. •'^'^' bb. Elevator Service in Connection zcitli Shipment of Grain. — The long-mooted question as to whether elevation was such a part of transportation as to bring it within the jurisdiction of the interstate commerce commission was answered by the Act of June 29, 1906 (34 Stat, at L. 584, 590, chap. 3591, U. S. Comp. Stat. Supp. 1909, p. 1150), in which congress declared that the term "'transportation' shall include * * * all * * * facilities of shipment, ^ * * irre- spective of ownership. '•' * '■' and all services in connection with the * * * elevation and transfer in transit * * * and handling of property transported." Carriers were required "to provide and furnish such transportation upon rea- sonable request therefor. "'^''^ As above stated, the act recognized that the ship- per himself might own the elevator or other facility included within the definition of transportation and provides, § 4 (34 Stat, at L. 590, chap. 3591, U. S. Comp. Stat. Supp. 1909, p. 1159), that "if the owner * * "' renders any service con- nected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable," the commission being authorized to determine what is reasonable.*^'-"^ In pursu- ance of the authority thus expressly conferred, the interstate commerce commis- sion, in April, 1907 (12 Inters. Com. Rep. 86), fixed the allowance for elevating 484-89h. Not necessarily unlawful be- cause it works a disadvantage to other shippers. — Interstate Commerce Comm. r. Diffenbaiigh, 222 U. S. 42, 56 L. Ed. 83, 32 S. Ct. 22; Penn Refin. Co. v. Western, etc., R. Co., 208 U. S. 208, 52 L. Ed. 456, 28 S. Ct. 268. Compensation to owners for use of tank cars — Rights of shippers using barrels. — Carriers can not be charged with dis- criminating against shippers of oil in bar- rels from the Pennsylvania oil fields to Perth Amboy, New Jersey, because they charge for the barrel package without making a corresponding charge upon ship- ments in tank cars owned by those ship- pers who can afford to build and furnish them, the carriers having none of their own, where the transportation by tank cars is more remunerative to the carriers than the transportation by barrels, and the barrel shippers have made no demand for tank cars, and can not use them economically for shipments to Perth Am- boy on account of the lack of facilities for unloading at that point. Judgment, Western New York & P. R. Co. v. Penn Refining Co. (1905), 137 F. 343, 70 C. C. A. 23, affirmed. Penn Refin. Co. v. West- ern, etc., R. Co., 208 U. S. 208, 52 L. Ed. 456, 28 S. Ct. 268. 484-89i. No compensation for "plant" facilities used in getting property to car- rier's road. — Chicago, etc., R. Co. v. United States, 156 Fed. 558, 84 C. C. A. 324, affirmed, Chicago, etc., R. Co. v. United States. 212 U. S. 563, 53 L. Ed. 653, 29 S. Ct. 689. Private tracks built by the owner of a packing plant on its own property, ex- tending from a connection with the tracks of a belt line railroad company to and around its buildings, and used in loading cars for shipment, are not a part of the railroad system, but plant facilities, and the refunding bj^ a railroad company, which made and published a schedule of through rates, including the belt line charge, of $1 per car to such packing company on shipments made by it and paid for at the schedule rate, on the ground that it was a payment for the use of such private tracks, constituted the giving of a rebate, in violation of § 1 of Elkins Act February 19. 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]. Judgment (1907), 156 F. 558, 84 C. C. A. 324, affirmed. Chicago, etc., R. Co. r. United States. 212 U. S. 563, 53 L. Ed. 653, 29 S. Ct. 689. 484-89J. Elevator service in connection with shipment of grain — In general. — Union Pac. R. Co. v. Updike Grain Co., 222 U. S. 215. 56 L. Ed. 171. 32 S. Ct. 39. 484-89k. Same — Compensation author- ized. — Union Pac. R. Co. :■. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 S. Ct. 39. 772 Vol. VII. IXTERSTATE, ETC., COMMERCE. 484 grain at three-fourths of a cent per hundred pounds, being actual cost, with no allowance whatever for profit. Its final order (14 Inters. Com. Rep. 315), pro- hibiting an}- payment to the owner who performed this transportation service, was reversed, as being beyond the jurisdiction of the commission, because congress had expressly permitted such payment to be made.^"" Elevator Owners Entitled to Equality of Treatment. — Xeither the car- riers nor the commission can enforce an arbitrary rule which would authorize the payment of one shipper for transportation service and deprive another of com- pensation for similar service. To receive the benefit of such work by one eleva- tor without ma'king compensation therefor would, in effect, be the involuntary payment by such elevator of a rebate to the railroad company, for it would en- able the railroad to receive more net freight on its grain than was received from its competitor located on the railroad's tracks. This can not be directly done, nor indirectly by means of regulation. A rule apparently fair on its face and reasonable in its terms may, in fact, be unfair and unreasonable if it operates so as to give one an advantage of which another, similarly situated, can not avail him- self. ^'^"^ 484-891. Same — Order of commission denying compensation reversed. — Inter- state Commerce Conim. :■. Dift'enbaugh, 222 U. S. 42, 50 L. Ed. 83, 32 S. Ct. 22; Union Pac. R. Co. t'. Updike Grain Co., 222 U. S. 21.5. 56 L. Ed. 171, 32 S. Ct. 39. 484-89m. Elevator owners entitled to equality of treatment. — Union Pac. R. Co. :■. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171. 32 S. Ct. 39. Denying compensation where owner uses opportunity to weigh, store, inspect, clean, or mix grain. — A carrier can not re- fuse the allowance for elevator service on through grain in car loads at terminal points to elevator owners who, through ownership of the grain, derive an inciden- tal advantage by using the opportunity afforded during the process of eleyation to weigh, store, inspect, clean, mix, or otherwise treat the grain, in view of the provisions of Act June 29, 1906, c. 3591, 34 Stat. 584, 590 (U. S. Comp. St. Supp. 1909, p. 1149), recognizing that services in transportation, rendered by an owner of the property transported, are to be paid for by the carrier. Union Pac. R. Co. •-'. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 S. Ct. 39, affirming judgment (1910), 178 F. 223, 101 C. C. A. 583. The interstate commerce commission can not make the allowance by a carrier to the owner of an elevator of the cost of the elevation in transit of grain in which he has an interest, conditional upon his failure to use the opportunity afforded during the process of elevation to treat, weigh, inspect, or mix the grain, since sucii allowance can not be deemed an un- due preference or discrimination forbid- den by the act to regulate commerce, in view of the provisions of Amendatorv Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), recogniz- ing that services in transportation, ren- dered by an owner of the property trans- ported, are to be paid for by the carrier. Interstate Commerce Comm. z'. Diffen- baugh, 222 U. S. 42, 56 L. Ed. 83, 32 S. Ct. 22, modifying decree (C. C. 1910), F. H. Peavey & Co. v. Union Pac. R. Co., 176 F. 409. The principle as to advantages is rec- ognized in Penn Refin. Co. v. Western, etc., R. Co., 208 U. S. 208, 221, 52 L. Ed. 456, 28 S. Ct. 268. The law does not at- tempt to equalize fortune, opportunities, or abilities. On the contrary, the act of congress in tenns contemplates that if the carrier receives services from an owner of property transported, or uses in- strumentalities furnished by the latter, he shall pay for them. Interstate Commerce Comm. c'. Dififenbaugh, 222 U. S. 42, 56 L. Ed. S3. 32 S. Ct. 22. Making allowance conditional upon re- turn of car within specified time. — A car- rier can not enforce a rule making its al- lowance for elevator service on through grain in carloads at terminal points con- ditional upon the return of the emotv car to the carrier within forty-eight hours after delivery to the elevator, so as to de- feat the right to compensation for ele- vator service rendered at elevators lo- cated on the lines of other railroads, where the return of the cars to the car- rier was made impossible by the rules of a railway association of which the carrier was a member, and over which the ele- vator owners had no control, no such im- possibility existing if the elevator was one of those located along the carrier's tracks. Union Pac. R. Co. z\ Updike Grain Co., 222 U. S. 215. 56 L. Ed. 171, 32 S. Ct. 39. A carrier may make its allowance for elevator service on through grain in car- loads at terminal points at elevators lo- cated on the lines of other carriers, as well as those located along its own tracks, conditional upon the return of the empty 773 484-489 IXTBRSTATE, ETC., COMMERCE. \'o\. VII. 3. Party-Rate Tickets and Reduced Fares. — See note 91. E. Undue Preference and Equal Facilities — 1. Undue: Preference's or Advantages Prohibited — c. Dissimilarity of Circumstances and Conditions — (3) Competition — (a) In General. — See ante, "Competition," IV, D, 1, b, (2). (b) As to Long and Short Hauls. — See ante, "Interests to Be Considered," IV, C, 4, c. (4) As between Commodities and Localities. — As between commodities and localities, special distinctions may be made where there is some basis therefor in reason and in fact; distinctions found, for example, in the character of the freight, the risk of injury, the increased difficulty of handling, and the increased damages which the carrier would be called upon to pay in case of loss or iajury in one case as compared with another.^^ But a rule or classification, although couched in terms similarU- fair on their face, can not be sustained where the practical effect thereof is to work an arbitrary and unreasonable discrimination or preference as between persons, places, or commodities.^'' car to the carrier within forty-eight hours after delivery to the elevator, where such car can be unloaded and returned in a much shorter time. Union Pac. R. Co. v. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171. 32 S. Ct. 39. Making allowance conditional upon grain being reshipped within a given time. — Confining the allowance by a carrier to the owner of an elevator for elevating- grain in transit in which he has an in- terest, to such grain as shall be reshipped within ten days, is within the power of the interstate commerce commission. In- terstate Commerce Comm. v. Diffenbaugh, 222 U. S. 42, 56 L- Ed. 83. 32 S. Ct. 22, modifying decree (C. C. 1910), F. H. Peavey & Co. r. Union Pac. R. Co., 176 F. 409. 484-91. Party rate tickets and reduced fares. — The express recognition in the act to regulate commerce of the power of carriers engaged in interstate com- merce to issue nontransferable reduced- rate excursion tickets, when considered with the restriction embodied in the act concerning equalitj^ of rates, and with the prohibition against preferences, must be regarded as charging the carrier with the duty of exercising due diligence to pre- vent the use of such tickets by other than the original purchasers, and hence causes the nontransferable clause to be operative and effective against anyone who wrong- fully attempts to use such tickets. Bitter- man f. Louisville, etc., R. Co., 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 489-5a. As between commodities and localities. — Interstate Commerce Comm. V. Chicago, etc., R. Co., 209 U. S. 108, 52 L. Ed. 705, 28 S. Ct. 493. As between live stock and dressed meats, packing house products, etc. — The cost of carriage, the risk of injury, and the larger amount which the railwaj' com- panies are called upon to pay out in dam- ages for losses may excuse a higher freight rate on live stock than on dressed meats and packing house products. Judg- ment (C. C. 1905), 141 F. 1003, affirmed. Interstate Commerce Comm. v. Chicago, etc., R. Co., 209 U. S. 108, 52 L. Ed. 705, 28 S. Ct. 493. A reduction of freight rates for dressed meats and packing house products from Missouri river points and other points similarly situated to Chicago, which makes such rates lower than those charged for live stock, does not work an undue and unreasonable preference, where the higher rate on live stock has not materially af- fected any of the markets, prices, or ship- ments, being reasonably fair to Chicago and the shippers, and the shipments of live stock from the West to Chicago are as great in proportion to the bulk of the business as before the change of rates, and where the lower rate given to the packers was the result of competition, and does not directly influence or injure ship- pers of live stock. Judgment (C. C. 1905), 141 F. 1003, affirmed. Interstate Com- merce Comm. V. Chicago, etc., R. Co., 209 U. S. 108, 52 L. Ed. 705, 28 S. Ct. 493. 489-5b. Same— Rule or classification working undue preference of discrimina- tion. — Cincinnati, etc., R. Co. v. Inter- state Commerce Comm., 206 U. S. 142, 51 L. Ed. 995, 27 S. Ct. 648; Union Pac. R. Co. V. Updike Grain Co., 222 U. S. 215, 56 L. Ed. 171, 32 S. Ct. 39. Classification of soap rates held to create undue preference here. — Where common laundry soap in less than car- load lots was assigned to the fourth class in the first classification made under the interstate commerce act, and was volun- tarily maintained there by defendant rail- road companies for more than thirteen years, defendants were not justified in re- classifying such freight so that it would paj^ 20 per cent less than third class rates, without changing the car-load classifica- tion, on the mere claim that the prior classifications had been inadequate to pay the cost of carriage in less than car-load lots, there having been no general re- classification which w'ould proximately 74 Vol. yii. INTERSTATE, ETC., COMMERCE. 489 2. Equal Facilities — a. For Interchange of Traffic. — See note 6. b. Distribution of Cars — (1) In General — The governmental power of regula- tion extends, in time of car shortage, to compelling a just and equal distribution of cars among shippers, and to the prevention of an unjust and discriminatory- one.*^^ apportion the cost of the service equally among the difterent articles of traffic as between car loads and less than car-load lots. (C. C. 1905). Interstate Commerce Commission v. Cincinnati. H. & D. Ry. Co.. 146 F. 559, decree affirmed in Cin- cinnati, etc., R. Co. V. Interstate Com- merce Comm., 206 U. S. 142. 51 L. Ed. 995, 27 S. Ct. 648. The disturbance in the relations be- tween freight rates for soap in car load and less than car-load lots created by ad- vancing the former from class 6 to class 5, and the latter from class 4 to class 3 in a new classification adopted to govern in official classification territorj^ was not cured by classifying soap in less than car- load lots at 20 per cent less than third class, but not less than fourth class, where the result of applying this modi- fied percentage classification to the vary- ing rates is to leave soap in less than car- load lots in the fourth class in portions of the territory, and in a higher class in other portions. Decree, Interstate Com- merce Commission v. Cincinnati, H. & D. Ry. Co. (C. C. 1905), 146 F. 559, affirmed. Cincinnati, etc.. R. Co. v. Interstate Com- merce Comm., 206 U. S. 142, 51 L. Ed. 995, 27 S. Ct.. G48. Unlawful preferences and discrimina- tions are created by fixing the freight rate for common soap in less than car-load lots in a new classification adopted to govern in official classification territory at 20 per cent less than third class, but not less than fourth class, at which that com- modity had previously been rated, where the result of applying this classification to the varying rates is to leave soap in less than car-load lots in the fourth class to a considerable extent in one of the subdivisions of such classification terri- tory, and in a higher class in the other subdivision. Decree, Interstate Com- merce Commission v. Cincinnati, H. & D. Ry. Co. (C. C. 1905), 146 F. 559, affirmed. Cincinnati, etc., R. Co. v. Interstate Com- merce Comm., 206 U. S. 142, 51 L. Ed. 995, 27 S. Ct. 648. 489-6. Facilities for interchange of traffic. — There is a great dift'erence be- tween competing carriers claiming the right to use the facilities of one another, and the patrons of the same carrier con- tending for equality of treatment. South- ern Pac, etc., Co. v. Interstate Commerce Comm., 219 U. S. 498, 55 L. Ed. 310, 31 S. Ct. 279, distinguishing Weenis Steam- boat Co. V. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. Switch connections with lateral, branch roads — Refusal to establish — Who may complain — Exclusiveness of remedy. — By the Act of June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. Stat. Supp. 1909, p. 1149), it is provided, inter alia, that: "Any common carrier subject to the pro- visions of this act, upon application of anj' lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to con- nect with its railroad, where such con- nection is reasonably practicable and can be put in with safety and will furnish suffi- cient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without dis- crimination in favor of or against any such shipper. If any common carrier shall fail to install and operate any such switch or connection as aforesaid, on ap- plication therefor in writing by any shipper, such shipper may make com- plaint to the commission, as provided in section thirteen of this act, and the com- mission shall hear and investigate the same and shall determine as to the safety and practicability thereof and justification and reasonable compensation therefor and the commission may make an order, as provided in section fifteen of this act, di- recting the common carrier to comply with the provisions of this section in ac- cordance with such order, and such order shall be enforced as hereinafter provided for the enforcement of all other orders by the commission, other than orders for the payment of money." Under this section, it is held that the rem.edy given by the act on complaint by the shipper to the com- mission, when an interstate carrier refuses to establish a switch connection with a lateral, branch line, is exclusive, and that the general powers given by other sec- tions of the statute can not be deemed to authorize a complaint to the commission by the lateral branch railway company. Interstate Commerce Comm. v. Dela- ware, etc.. R. Co., 216 U. S. 531, 54 L. Ed. 605, 30 S. Ct. 415. affirming (C. C), 166 Fed. 498. 489-6a. Distribution of cars— In Geri- eral. — Interstate Commerce Comm. :•. Illi- nois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280. 30 S. Ct. 155. It may not be doubted that the equip- 489 INTERSTATE, ETC., COMMERCE. Vol. VII. (2) As betxi-een Carriers and Shippers — (a) In General. — It can not be doubted that this power extends to compelHng an equitable distribution as between the carrier and the shipper, and to preventing the carrier from unduly favoring it- self to the prejudice of shippers in allotting cars for hauling freight for its own use; and the power to regulate such distribution was conferred upon the inter- state commerce commission by the Act of February 4, 1887, ch. 104, § 1, 24 Stat. 379, U. S. Comp. 1901, p. 3154.'^'^ (b) Disassociation of Carrier from Interest or Oivncrship in Conunodity Car- ried — aa. Power of Congress; ConstitntionaUt\ of Act. — The power of congress to regulate commerce can be constitutionally so exerted as to compel a railroad company engaged in interstate commerce to dissociate itself in interest from the commodities which it transports in interstate commerce, even though, by existing ment of a railroad company engaged in in- terstate commerce, included in which are its coal cars, are instruments of such commerce. From this it necessarily fol- lows that such cars are embraced within the governmental power of regulation, which extends, in time of car shortage, to compelling a just and equal distribution, and the prevention of an unjust and dis- criminatory one. Interstate Commerce Comm. V. Illinois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155. Rules of American Railway Association — Power of states. — As to the rules of the American Railway Association with re- spect to distribution of cars and the power of the states to compel a distribution other- wise than in accordance therewith, see ante, "Facilities for Transportation," II, A, 2, d, (23), (1). 489-6b. As between carriers and ship- pers. — -Interstate Commerce Comm. v. Il- linois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Commerce Comm. V. Chicago, etc., R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 163. Distribution of coal cars as between carrier and shippers — Powers of commis- sion. — Commerce, in the constitutional sense, includes the instrumentalities by which cominerce is carried on, and ex- tends to the coal cars owned by a railway company engaged in interstate commerce, in which it receives from the tipple of the coal mines along its line coal purchased by it and used solely for its own fuel pur- poses. Decree, Chicago & A. R. Co. v. Interstate Commerce Commission (C. C. 1908), 173 F. 930, reversed. Interstate Commerce Comm. v. Illinois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Commerce Comm. v. Chicago, etc., R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 163. Authority to regulate the distribution of a railway company's fuel cars in times of car shortage to the bituminous coal mines along its line was delegated to the interstate commerce commission by the act to regulate commerce (Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), as a means of prohibit- ing the unjust preferences or undue dis- criminations forbidden by § 3 of that act. Interstate Commerce Comm. v. Illinois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155. Requiring a railway company in making its daily distribution of coal cars in times of car shortage to the bituminous coal mines on its line to desist from its practice not to count the company's fuel cars against the share of the mine receiving them can not be said to destroy the free- dom of contract, on the theory that any discriminations or preferences resulting from such practice arose from the fact that the railway company chose to pur- chase coal for its fuel supply from a par- ticular mine or mines. Decree, Chicago & .A.. R. Co. V. Interstate Commerce Com- mission (C. C. 1908), 173 F. 930, reversed. Interstate Commerce Comm. v. Illinois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Commerce Comm. V. Chicago, etc., R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 163. An order of the interstate commerce commission com.manding a railway com- pany to desist from its practice not to take into account the company's fuel cars in the daily distribution of coal cars in times of car shortage to the bituminous coal mines on its line, and requiring it for a future period of two years to count such cars against the share oi the mine receiv- ing them, is within the authority delegated by Act June 29, 1906, c. 3591, § 4, 34 Stat. 589 (U. S. Comp. St. Supp. 1909, p. 1158), upon complaint duly made, to declare a rate of practice affecting rates illegal, and to determine and prescribe for a term not exceeding two years what will be a just and reasonable rate, and what regulation or practice in respect to transportation is just, fair, and reasonable thereafter to be followed. Decree, Chicago & A. R. Co. v. Interstate Commerce Commission (C. C. 1908), 173 F. 930, reversed. Interstate Commerce Comm. z'. Illinois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Commerce Comm. v. Chicago, etc., R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 163. 776 Vol. MI. IXTERSTATE, ETC., COMMERCE. 489 stale laws, the railroad company may have a lawful right of ownership or asso- ciation with the commodity upon which the regulation operates.'" Constitutionality of Commodities Clause of Hepburn Act. — Congress could properly enact, as a regulation of commerce, so much of the Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), as for- bids a carrier from transporting articles or commodities in interstate commerce when they have been manufactured, mined, or produced by the carrier, or under its authority, and, at the time of transportation, such carrier has not, in good faith, before the act of transportation, dissociated itself therefrom, or when the carrier owns the article or commodity to be transported, in whole or in part, or when the carrier, at the time of transportation, has an interest therein, direct or indirect, in a legal or equitable sense, although, by existing state legislation, such carrier may have a lawful right of ownership of or association with the articles or commodities upon which these provisions operate.'"'' Same — Due Process of Law. — Railway companies enjoying the right, under existing state legislation, of ownership of or association with the articles or com- modities carried, are not denied the due process of law guaranteed by Const. U. S. Amend. 5. by so much of the provisions of Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 ( U. S. Comp. St. Supp. 1907, p. 892), as forbids a carrier from transporting articles or commodities in interstate commerce when they have been manufactured, mined, or produced by the carrier or under its authority, and. at the time of transportation, such carrier has not in good faith, before transporting them, dissociated itself therefrom, or when the carrier owns the article or com- modity to be transported, in whole or in part, or when the carrier, at the time of transportation, has an interest therein, direct or indirect, in a legal or equitable sense.^® Invalidity of Penalties Clause — Separability of Act. — The possible in- validity of the clause of the Hepburn Act of June 29, 1906, imposing penalties for violations of its provisions forbidding railway carriers from transporting in interstate commerce commodities with which they are associated, or in which they are interested, can not affect the validity of these provisions, since the penalty clause is wholly separable therefrom."'^' Validity of Exception in Favor of Timber and Products Thereof. — The exception in favor of timber and manufactured products thereof, contained in the provisions of Hepburn Act June 29, 1906, c. 3591. 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892). forbidding railway carriers from transporting in interstate commerce articles or commodities with which they are associated, or in which they are interested, does not render the statute invalid for discrimination.*^^ bb. Common Purpose of the Act. — The dissociation of railway companies prior to transportation from the articles or commodities transported, whether such as- sociation result from manufacture, mining, production, or ownership, or interest, direct or indirect, is the common purpose of the provisions of Hepburn Act T^ne 29, 1906, c. 3591, 34 Stat. 584 ( U. S. Comp. St. Supp. 1907, p. 892), making it unlawful for a railway carrier to transport in interstate commerce articles or 489-6C. Power of congress— In general. 21-3 U. S. 366, 53 L. Ed. 835. 29 S. Ct. 527, — Attorney General z\ Delaware, etc., Co., reversing- fC. C), 164 Fed. 215. 213 U. S. 366, 53 L. Ed. S35. 29 S. Ct. 527; 489-6f. Invalidity of penalties clause- United States V. Lehigh Valley R. Co., 220 Separability of act.— Attorney General z'. U. S. 257, 55 L. Ed. 458. 31 S. Ct. 387. Delaware, etc.. Co., 213 U. S. 366, 53 L. Ed. 489-6d. Constitutionality of commodi- go^ 09 S. Ct. 527. ties clause of Hepburn Act.-.\ttorntT ^gg ' Validity of exception in favor General :. Delaware, etc Co 213 U. b. ^^ ^^^^^^ ^^^ products thereof.— Attorney 366, 53 L. Ed. 83.5 29 b. Ct. o2<, reversing q^^^^^^, ^^, Delaware, etc.. Co., 213 U. S. ^.S'l l^^-^e • U'- f 1 366, 53 L. Ed. 835, 29 S. Ct. 527. 489-6e. Same — Due process of law. — ' ^ Attorney General i: Delaware, etc.. Co., 489 INTERSTATB, ETC., COMMERCE. Vol. VII. commodities ''manufactured, mined or produced by it or under its authority, or which it may own in whole or in part, or in which it may have an}- interest, direct or indirect."*^'' cc. "Railroad" zvithin Meaning of Act. — A company, chartered to secure coal lands and mine coal, and to construct a canal and railroad for the purpose of trans- porting the products of its mines, being also engaged as a carrier by rail in the transportation of coal in the channels of interstate commerce, is a "railroad com- pany'' within the meaning of Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), prohibiting such companies from transport- ing in interstate commerce commodities with which they are associated, or in which they are interested.^' dd. Character of Interest or Ozvnership Forbidden. — Transportation when the thing to be transported has been manufactured, mined, or produced by the car- rier or under its authority, and at the time of transportation the carrier has not, in good faith, before the act of transportation, dissociated itself therefrom, or when the carrier owns the thing to be transported, in whole or in part, or when the carrier, at the time of transportation, has an interest therein, direct or indi- rect, in a legal or equitable sense, is all that is forbidden bv the provisions of the Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), making it unlawful for a railway carrier to transport in interstate com- merce articles or commodities ''manufactured, mined, or produced by it or under its authority, or which it may own in whole or in part, or in which it may have any interest, direct or indirect.*^^ Interest as Stockholder. — The ownership by a railway carrier of stock in a bona fide corporation manufacturing, mining, producing, or owning the com- modity carried is not the "interest, direct or indirect," in such commodity, for- bidden to the carrier by the Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1907, p. 892), but such words are to be taken as embrac- ing only a legal or equitable interest in the commodities to which they refer.^'^ But while the decision in the Delaware and Hudson Case expressly held that stock ownership by a railroad company in a bona fide corporation, irrespective of the extent of such ownership, did not preclude a railroad company from trans- porting the commodities manufactured, mined, produced, or owned by such cor- poration, it has been held in a subsequent case that nothing in that decision fore- closed the right of the government to question the power of a railroad company to transport in interstate commerce a commodity manufactured, mined, owned, or produced by a corporation in which the railroad held stock, and where the power of the railroad company as a stockholder was used to obliterate all distinctions be- tween the two corporations. That is to say, where the power was exerted in such a manner as to so commingle the affairs of both as by necessary eft'ect to make such affairs practically indistinguishable, and therefore to cause both cor- porations to be one for all purposes.'^' In view, therefore, o.f the ex- press prohibitions of the commodities clause, it must be held that while the right of a railroad company as a stockholder to use its stock owner- ship for the purpose of a bona fide separate administration of the affairs of a corporation in which it has a ^stock interest may not be denied, the use of such stock ownership in substance for the purpose of destroying the entity 489-6h. Common purpose of the act. — aware, etc.. Co., 213 U. S. 366, 53 L. Ed. Attorney General v. Delaware, etc., Co., S3.'i, 29 S. Ct. 527. 213 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527, 489-6k. Interest as stockholder.— reversing (C. C), 164 Fed. 215. Attorney General v. Delaware, etc., Co., 489-6i. "Railroad" within meaning of act. 213 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527. — Attorney General v. Delaware, etc., Co., 489-61. Same — Stock ownership in sham 213 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527. corporation.— United States v. Lehigh 489-6J. Character of interest or owner- Valley R. Co., 220 U. S. 257, 55 L. Ed. 458, ship forbidden. — Attorney General v. Del- 31 S. Ct. 387. 778 \'ol. VII. IXTERSTATE, ETC., COMMERCE. 489 of a producing, etc., corporation, and of commingling its afifairs in administra- tion with the affairs of the railroad company, so as to make the two corporations virtually one, brings the railroad company so voluntarih- acting as to such pro- ducing, etc., corporation within the prohibitions of the commodities clause. In other words, that by the operation and eft'ect of the commodities clause there is a duty cast upon a railroad company proposing to carry in interstate commerce the product of a producing, etc., corporation in which it has a stock interest, not to abuse such power so as virtually to do by indirection that which the commodi- ties clause prohibits — a duty which plainly would be violated by the unneces- sary commingling of the aft'airs of the producing company with its own, so as to cause them to be one and inseparable.^™ Summary of Principles. — Following the rule that where a statute is sus- ceptible of two constructions, the court will adopt that construction which will s.ustain the constitutionality of the act, rather than that which renders it uncon- stitutional, it is held that the statute must be construed as prohibiting a railroad company engaged in interstate commerce from transporting in such commerce articles or commodities under the following circumstances and conditions: (a) \\'hen the article or commodity has been manufactured, mined, or produced by a carrier or under its authority, and, at the time of transportation, the carrier has not, in good faith, before the act of transportation, dissociated itself from such article or commodity; (b) when the carrier owns the article or commodity to be transported, in whole or in part; (c) when the carrier, at the time of transporta- tion, has an interest, direct or indirect, in legal or equitable sense, in the article or commodity, not including, therefore, articles or commodities manufactured, mined, produced, or owned, etc., by a bona fide corporation in which the railroad company is a stockholder.'^'' c. Lease or Monopoly of JVliarfagc Facilities to Favored Shipper. — A lease to a shipper of one of the piers and improvements thereon, belonging to a termi- nal company, which relieves him from the payment of all wharfage and storage charges other than as the same may be included in the yearly rental, and has en- abled him to acquire practicalh- a monopoly of the export of certain products from that port, constitutes an unlawful or undue preference under the act to reg- ulate commerce, where other shippers are not and can not be aft'orded the same facilities on the same conditions.'^" Jurisdiction of Commission Extends to Wharfage Company Controlled by Carrier. — A corporation created to carry one, conformably to a municipal ordinance and a confirmatory statute intended to secure public shipping facilities, a wharfage business at a seaport and to furnish terminal facilities for a railway and steamship system of which it forms a part and by which it is controlled through a holding company, is a common carrier, and as such is subject to the jurisdiction of the interstate commerce commission acting in the exercise of its 489-6m. Same. — United States i'. Le- commodities "manufactured, mined, or high Valley R. Co., 220 U. S. 257, 55 L. produced by it or under its authority, or Ed. 458, 31 S. Ct. 387. which it may own in whole or in part, The exercise by a railway carrier of its or in which it may have any interest di- power as a stockholder in a corporation rect or indirect." United States z\ Lehigh manufacturing, mining, producing, or Valley R. Co., 220 U. S. 257, 55 L. Ed. 458, owning the commodit}' carried in such 31 S. Ct. 387. manner as to deprive the latter corpora- 489-6n. Summary of principles. — Attor- tion of all independent existence, and to „ev General :•. Delaware, etc., Co., 213 U. make it virtually but an agency, or de- S. '366. 53 L. Ed. 835. 29 S. Ct. 527. pendency, or department of the earner, is 489.60, Lease or monopoly of wharf- forbidden by the provisions of Hepburn facilities to favored shipper.-South- Act June 29, 1906, c. 3o91, 34 Stat. o84 (L. ^f^^ p Co. z: Interstate Commerce S. Comp St Supp. 1909, p. 1149). making q^^^ 219 y. S. 498, 55 L. Ed. 310, 31 S. It unlawful for a railway carrier to trans- q^ ^^^ port in interstate commerce articles or 489-494 INTERSTATE, ETC., COMMERCE. Vol. VII. authority, under the act to regulate commerce, to prohibit undue preferences. ^p Character of Commerce in Which Wharfinger Engaged. — An order of the interstate commerce commission forbidding a carrier to give an undue pref- erence in the use of its wharves at a seaport to an exporter of cotton seed prod- ucts is not a regulation of purely intrastate or purely foreign commerce, which would be beyond the power of the commission, where the cotton seed products purchased by him, whether at points within or without the state, are all destined for export, and the concentration and manufacture of cotton seed cake into meal on the wharves are but incidents in the transhipment of the products in export trade.*^'' d. Spur Tracks, Szvitch Connections, etc. — Switch Connection with Lateral or Branch Line. — See ante, "For Interchange of Tratitic," IV, E, 2, a. F. Long and Short Hauls. — See ante, "Interests to Be Considered," IV, C. 4, c. H. Printed Schedules of Rates to Be Posted — Notice of Advance and Reduction — Joint Rate Tariffs — 1. Establishing, Publishixg and Filing ScHiiDULEs OF Rates, Fares and Charges — a. Duty to Establish and Publish — Terms of Statute. — In General. — See note 27. Carriers by Water Included in Terms of Act. — See ante, "In General," IV. P.. 1. Express Companies Included. — See ante, "In General," I\', B, 1. Carriers Engaged in Foreign Trade — Imports and Exports — Consti- tutionality of Act. — The mere incidental eitect upon exports which may be produced by applying to a shipment from an interior point of the United States to a foreign port the provisions of Elkins Act Feb. 19, 1903, c. 708, ZI Stat. 847 (U. S. Comp. St. Supp. 1907. p. 880), making it an oltense against the United States to obtain the transportation of property in interstate or foreign commerce at less than the carrier's published rates, does not render such provisions repug- nant to Const. U. S., art. 1, § 9, par. 5, forbidding the levving of export taxes or .duties.2'^ 489-6p. Jurisdiction of commission ex- tends to wharfage company controlled by carrier. — Southern Pac, etc., Co. r. Inter- state Commerce Comm., 219 U. S. 498, 55 L. Ed. 310, 31 S. Ct. 279. "There is a separation of the companies if we regard only their charter; there is a union of them if we regard their control and operation through the Southern Pa- cific Company.. This control and opera- tion are the important facts to shippers. It is of 'no consequence that by mere charter declaration the terminal company is a wharfage company, or the Southern Pacific a holding company. Verbal decla- rations can not alter the facts. The con- trol and operation of the Southern Pacific Company of the railroads and the terminal company have united them into a system of which all are necessary parts, the ter- minal company as well as the railroad companies." Southern Pac. Co. i'. Inter- state Commerce Comm.. 219 U. S. 498, 55 L. Ed. 310, 31 S. Ct. 279. 489-6q. Character of commerce in which wharfinger engaged. — Southern Pac. Co. V. Interstate Commerce Comm., 219 U. S. 498, 55 L. Ed. 310, 31 S. Ct. 279. See, also, ante, "When Protection Attaches," I. A. 4. a. 494-27. Duty to establish and publish — Terms of statute. — That the act imposes upon common carriers subject to its pro- visions the duty of establishing in a pre- scribed mode the rates, whether individtial or joint, to be charged for the trans- portation in interstate commerce of prop- erty over their lines, and that the rates so established are obligatory alike upon car- rier and shipper, and must be strictly ob- served by both until changed in the mode prescribed, are propositions which are not only plainly stated in the act, but settled by repeated decisions of the federal su- preme court. United States v. Miller, 223 U. S. 599, 56 L. Ed. 568, 32 S. Ct. 323. See, also, ante, "General Purpose of Statute," IV, D, 1, a^S. (1). 494-2Ta. Carriers engaged in foreign trade — Imports and exports — Constitu- tionality of act. — Armour Packing Co. v. United States, 209 U. S. 56, 52 L. "Ed. 681, 28 S. Ct. 428. Aft'irming judgment (1907), 153 F. 1, 82 C. C. A. 135; Chicago, etc., R. Co. V. United States, 209 U. S. 90, 52 L. Ed. 698, 28 S. Ct. 439. affirmins: judgment (C. C. A. 1907), 157 F. 830. 780 Vol. \'ll. IXTERSTATE. ETC., COMMERCE. 494-496 Same— Preference of Ports of One State over Those of Another.— Preference is not given to the ports of one state over those of another by apply- ing to articles intended for foreign export the provisions of Elkins Act Feb. 19 1903. c. 708, 32 Stat. 847 ( U. S. Comp. St. Supp. 1907, p. 880), making it an of- fense against the United States to accept transportation of goods in interstate or foreign commerce at less than the carrier's published rates. -''' c. Contents of Schedules. — See note 29. d. Manner of Publication. — See note 32. 3. Effp-ct of \\\rtaxce from Schedule Rates — a. In General. — See note 36. 494-27b. Same — Preference of ports of one state over those of another. — Armour Packing Co. v. United States, 209 U. S. 56, 52 U Ed. 681, 28 S. Ct. 428. Affirming judgment (1907), 153 F. 1, 82 C. C. A. 135; Chicago, etc.. R. Co. z: United States. 209 U. S. 90, 52 L. Ed. 698, 28 S. Ct. 439, affirm- ing judgment (C. C. A. 1907), 157 F. 830. 494-29. Contents of schedules — In gen- eral — Stating terminal charges separately. — Carriers separatel}- state the terminal charges for delivering live stock beyond their own lines to the Union Stockyards in Chicago, as required by Act June 29. 1906. c. 3591, § 2 (U. S. Comp. St. Supp. 1907, p. 895), where their tariff schedules inform shippers that the live stock rates to Chicago apply only to deliveries at the carriers' own j'ards and that, for transpor- tation to the Union Stockj^ards, a stated additional charge will be made, the amount of such charge being entered, not upon the general freight charges of the companies, but as a separate item. De- cree, Stickney v. Interstate Commerce Commission (1908), 164 F. 638, affirmed. Interstate Commerce Comm. z'. Stickney, 215 U. S. 98, 54 L. Ed. 112, 30 S. Ct. 66. See. also, ante, "Terminal Charges." IV, C. 5. 495-32. Posting not a condition prece- dent. — Publication and posting in the sense of the act are essentially distinct. United States v. Miller. 223 U. S. 599, 56 L. Ed. 568, 32 S. Ct. 323. From all the provisions on the subject it is evident that the publication intended consists in promulgating and distributing the tariff in printed form, preparatorj' to putting it into effect, while the posting is a continuing act enjoined upon the car- rier, while the tariff remains operative, as a means of affording special facilities to the public for ascertaining the rates in force thereunder. In other words, publi- cation is a step in establishing rates, while posting is a duty arising out of the fact that they have been established. Obvi- ously, therefore, posting is not a condi- tion to making a tariff legally operative. Neither is it a condition to the continued existence of a tariff' once legally estab- lished. If it were, the inadvertent or mis- chievous destruction or removal of one of the posted copies from a depot would dis- establish or suspend the rates — a result which evidently is not intended by the act, for it provides that rates once law- fully established shall not be changed otherwise than in the mode prescribed. United States z\ :\Iiiler. 223 U. S. 599. 56 L. Ed. 568. 32 S. Ct. 323. See, also, Texas, etc.. R. Co. V. Cisco Oil Mill, 204 U. S. 449. 51 L. Ed. 562, 27 S. Ct. 358; Kansas City, etc., R. Co. z'. Albers Comm. Co., 223 U. S. 573. 56 L. Ed. 556, 32 S. Ct. 316. In none of its expressions is there any suggestion that posting is a necessary step in establishing rates; that is, in mak- ing them legally operative. United States r. Miller, 223 U. S. 599, 56 L. Ed. 568, 32 S. Ct. 323. Posting, is not essential to make rates legally operative, and is required only as a means of aft'ording special facilities to the public for ascertaining the rates actu- all}- in force. Kansas City, etc., R. Co. z'. Albers Comm. Co.. 223 U. S. 573, 56 L. Ed. 556. 32 S. Ct. 316: Texas, etc., R. Co. z: Cisco Oil Mill. 204 U. S. 449, 51 L. Ed. 562. 27 S. Ct. 358. Interstate freight rates are established when schedules thereof are regularly printed, filed with the interstate commerce commission, and kept open to public in- spection by the carrier at its freight offi- ces, although such rates ma}' not be posted in public and conspicuous places, as re- quired by § 6 of the Interstate Commerce Act of February 4, 1887, as am.ended bj' the Act of March 2, 1889, as posting is not essential to make rates legally opera- tive, but is required only as a means of affording special facilities to the public for ascertaining the rates actually in force. Kansas Citv, etc., R. Co. z'. Albers Comm. Co.. 223 U.'S. 573, 56 L. Ed. 556, 32 S. Ct. 316. See, also, ante, "Posting of Rates Not Necessary Element of Offense," IV, D, 1. aV.. do). 496-36. Effect of variance from sched- ule rates. — It is now the established rule that a carrier can not depart to any ex- tent from its published schedule of rates for interstate transportation on file with- out incurring the penalties of the statute. Louisville, etc., R. Co. r. Mottley, 219 U. S. 467. 55 h. Ed. 297, 31 S. Ct. 265; Uniojl Pac. R. Co. V. Goodridge. 149 U. S. 680, 691, 37 L. Ed. 896, 13 S. Ct. 970; Gulf, etc., R. Co. V. Hefley. 158 U. S. 98. 102. 39 L. Ed. 910. 15 S. Ct. 802: New York, etc.. R. rsi 498 IXTERSTATE, ETC., COMMERCE. \o\. VII. 4. Joint Tariffs of Rates. — Establishment of Joint Tariff — Sanction of Other Roads — When Necessary. — The sanction of the other roads to schedules of freight rates containing a heading indicating their adoption by a particular road "in connection with" other designated railroads, which are the roads over which a haul, when there is such, from common points to the par- ticular railroad would be made, is not essential to the establishment of such rates in a proceeding involving shipments over such railroad and a connecting line not included among the other roads designated, from a city which is not one of the common points.^^"^ Applicability of Joint Rate to Shipment over Connecting Line Not Specified. — Schedules of freight rates of a designated railroad, indicating that they were adopted by it "in connection with" other specified roads over which shipments from the common points, if any, would be made, may be applicable to a shipment over a different railroad from a city which is not a common point, where such schedules do not restrict the rate to shipments received from the roads specified but indicate its applicability to shipments received from any con- necting line.^^"^ Rate Taken by Shipments over Connecting Lines Where No Estab- lished Joint Through Rates. — Shipments over connecting lines, even though moving on through bills of lading, must, under the Interstate Commerce Act, take the lawfully established local rate in force on each line, where there is no established joint through rate.^^*^ Same — Validity of Agreement for Less than Established Local Rates for Each Road. — An agreement with a single shipper for shipments over con- necting lines having no joint through rate, at less than the established local rates for each road, is void and does not prevent the collecting of the established local rate by such carriers, under the Interstate Commerce Act of February 4, 1887, § 6, as amended by the Act of Alarch 2, 1889, providing the manner for estab- lishing rates, and making it unlawful for a carrier to depart from any rate so established and in force at the time and requiring connecting carriers agreeing on joint through rates to file schedules with the commission, and prohibiting any deviation from an established joint rate while in force. ^•'^'^ Liability of Carrier Participating in Joint or Through Rate. — See ante, "Liability of Carrier Participating in Joint or Through Rate," IV, D, 1, aV2, (11). Co. V. Interstate Commerce Comm., 200 ments in question. As applied to them U. S. 361, 391, 50 L. Ed. 515, 26 S. Ct. 272; the rate was not joint, but an individual Texas, etc., R. Co. v. Abilene Cotton Oil rate of the garnishee. The sanction of the Co., 204 U. S. 426, 439, 51 L. Ed. 553, 27 S. other roads was essential only to its ap- Ct. 350. plication to the haul from the common 498-43a. Establishment of joint tariff — points, when there was such." Kansas Sanction of other roads — When necessary. City, etc., R. Co. v. Albers Comm. Co., — Kansas City, etc., R. Co. v. Albers 223 U. S. 573, 56 L. Ed. 556, 32 S. Ct. 310. Comm. Co., 223 U. S. 573, 56 L Ed. 556, 32 498-43b. Applicability of joint rate to S. Ct. 316. See, also, ante, "Liability of shipment over connecting line not speci- Carrier Participatmg in Jomt or Through fied.— Kansas City, etc., R. Co. v. Albers Rate, IV, D, 1 a^, (11). Comm. Co., 223 U. S. 573, 56 L. Ed. 556, ' it was not shown that these schedules 30 g q^ ^if, were sanctioned by the other railroads "498.430. Rate taken by shipments over designaed therein, they bemg the roads connecting lines where no established over which the haul to the garnishee s ■ • 4. ^u..Jf,„i, ^„4.^ t- r--.. .. d road from the common points was to be J°^"* '^.'^r^^r^'^— ^>;^"^^,%9/^4 ^'5;' \ made when the shipments were received f Vi "^ -«' '4 Sf'r"' •,?«•' ^~^ ^- ^^ ''^' "^ from connecting lines at those points. -^ -^ y ^ Such a showing, however, was not neces- 498-43d. Same— Validity of agreement sary here. The other roads had no inter- for less than estabhshed local rates for est in the rate as applied to shipments each road.— Kansas City, etc., R. Co. v. received by the garnishee from the north- -^}^^l^ Cornm. Co., 223 U. S. 573, 56 L. Ed. ern line at Kansas City, as were the ship- 550, 32 S. Ct. 316. Vol. ML IXTERSTATE, ETC, COMMERCE. 500-502 J. Free Carriage or Reduced Rates.— See ante, "Embraces All :\Ianner of Carriage, Gratuitous or Otherwise."' I\'. D, 1, a^j. (4). K. The Interstate Commerce Commission and the Enforcement of the. Act — 2. Enforcement of Act and Consequences of \'iolation — a. General Nature and Pozcers of Commission — (1) An Administrative Board. — See note 50. b. Scope of Commission and Prosecution of Proceedings — (1) Scope of Du- ties and Powers in General. — See note 52. (2) Pozver to Investigate and Require Information. — See post, "Power to In- vestigate and Require Information," IV, K, 2, b, (4), a 1/2. (3) Complaint or Suit by Persons Damaged — (c) Suit or Action — >^aa. Par- ties. — Who May Complain. — Railway companies may complain of a reduction made bv the commission so far as it affects their revenues, but they may not com- plain of it as it may aft'ect shippers or trade centers. The courts will not listen to a party who complains of a grievance which is not his.^^'^ Same — Of Refusal to Establish Switch Connection with Lateral or Branch Road.— The remedy given by Act of June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), on complaint by the shipper to the interstate commerce commission when an interstate railway carrier refuses to establish a sv\itch connection with a lateral, branch line, is exclusive, and the general powers given by other sections of the statute can not be deemed to au- thorize a complaint to the commission by the lateral, branch railway company.^ ^'^ ^aa. Conditions Precedent to Right to Invoke Aid of Courts. — Investiga- tion, Finding and Order by Commission as Prerequisite to Right to Re- sort to Courts. — \\'here the grievances complained of are primarily within the administrative competency of the interstate commerce commission thev are not 500-50. An administrative board. — The interstate commerce commission is purely an administrative body. It is true it may exercise and must exercise quasi judicial duties, but its functions are defined, and, in the main, explicitly directed, by the acts creating it, and it is not the final judge of its own jurisdiction. Interstate Commerce Comm. :■. Humboldt Steam- ship Co.. 224 U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556. 501-52. Scope of duties and powers in general. — Whatever may be the power of congress, it did not attempt, in the Act of February 4, 1887, c. 104. 24 Stat. 379, to do more than to regulate the interstate busi- ness of common carriers, and the prim.ary purpose for which the commission v.-as es- tablished was to enforce the regulations which congress had imposed. Harriman 7'. Interstate Commerce Comm., 211 U. S. 407. 418. 53 L. Ed. 253. 29 S. Ct. 115. Will regard substance and not form. — Tariffs are but forms of words, and the commission, in the exercise of its powers to administer the Interstate Commerce Act, can look beyond the forms to what caused them and what they are intended to cause and do cause in order to correct inequities and preferential charges. In- terstate Commerce Comm. i'. Baltimore, etc., R. Co., 225 U. S. 326, 345, 56 L. Ed. 1107, 32 S. Ct. 742. 502-61a. Parties, who may complain. — Interstate Commerce Comm. z\ Chicago, etc., R. Co., 218 U. S. 88. 54 L. Ed. 946, 30 S. Ct. 651; Clark z\ Kansas City, 176 U. S. 114, 118, 44 L. Ed. 392, 20 S. Ct. 284; Smiley t-. Kansas, 196 U. S. 447, 49 L. Ed. 546, 25 S. Ct. 289. 502-61b. Same— Of refusal to establish switch connection with lateral branch road. — Interstate Commerce Comm. i\ Delaware, etc., R. Co.. 216 U. S. 531, 54 L. Ed. 605, 30 S. Ct. 415, affirming (C. C.^, 166 Fed. 498. _ "We are of opinion that the remedy is exclusive, on familiar principles, and that the general powers given by other sec- tions can not be taken to authorize a complaint to the commission by a branch railroad company under § 1. If they were applicable to a branch road, they would have been equally applicable to shippers, and there was no more reason to mention complaints by shippers than by others. The argument that shippers were mentioned to insure their rights in case of a refusal to connect with a lateral line is excluded by the form of the stat- ute, which obviously is providing the only remedy that congress had in mind. It may or may not be true that the distinc- tion is not very eflfective, but it stands in the law, and must be accepted as the limit of the commission's power." Interstate Commerce Comm. f. Delaware, etc., R. Co.. 216 U. S. 531, 54 L. Ed. 605, 30 S. Ct. 415. 783 502 INTERSTATE, ETC., COMMERCE. Vol. VII. subject to be judicially enforced until that body has been afforded, by a com- plaint made to it, opportunity to exert its administrative functions. In the .long interval which intervened between 1887 when the act to regulate com- merce was enacted, and June 18, 1910, when the Commerce Court Act was passed, there was no instance where it was held or even seriously asserted, that as to subjects which in their nature were administrative and within the competency of the commission to decide, there was power in a court, by an exercise of original action, to enforce its conceptions as to the mean- ing of the act to regulate commerce by dealing directly with the subject irrespective of any prior affirmative command or action by the interstate commerce commission. On the contrary, by a long line of decisions, whereby applications to enforce orders of the commission were considered and disposed of or where requests to restrain the enforcement of such orders were passed upon, it appears by the reasoning indulged in that it was never considered that there was power in the courts as an original c[uestion without previous af- firmative action by the commission to deal with what might be termed in a broad sense the administrative features of the act to regulate commerce by de- termining as an original question that there had been a compliance or noncom- pliance with^the provisions of the act.^^^ 502-61C. Conditions precedent to right to invoke aid of courts — Investigation, finding and order by the commission. — Procter, etc., Co. i'. United States, 225 U. S. 282, 296, 56 L. Ed. 1091, 32 S. Ct. 761, citing, as illustrating and making clear the point, Oregon R., etc., Co. v. Fair- child, 224 U. S. 510, 56 L. Ed. 863, 32 S. Ct. 535; Robinson v. Baltimore, etc., R. Co., 222 U. S. 506, 56 L. Ed. 288. 32 S. Ct. 114; Southern R. Co. v. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 S. C. 140; Texas, etc., R. Co. V. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 S. Ct. 350; Baltimore, etc., R. Co. v. Pitcairn Coal Co., 215 II. S. 481, 54 L. Ed. 292, 30 S. Ct. 164; Southern R. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, 27 S. Ct. 709; Robin- son V. Baltimore, etc., R. Co., 222 U. S. 506, 56 L. Ed. 288, 32 S. Ct. 114, affirming 64 W. Va. 406, 63 S. E. 323. When the purpose of the act and the means selected for the accomplishment of that purpose are understood, it is alto- gether plain that the act contemplated that such an investigation and order by the designated tribunal, the interstate commerce commission, should be a pre- requisite to the right to seek reparation in the courts because of exactions under an established schedule alleged to be violative of the prescribed standards. And this is so, because the existence and ex- ercise of a right to maintain an action of that character, in the absence of such an investigation and order, would be re- pugnant to the declared rule that a rate established in the mode prescribed should be deemed the legal rate, and obligatory alike upon carrier and shipper until changed in the manner provided, would be in derogation of the power expressly delegated to the commission, and would be destructive of the uniformity and equality wliicli the act was designed to secure. Robinson t'. Baltimore, etc., R. Co., 222 U. S. 506, 56 L. Ed. 288, 32 S. Ct. 114. See, also, Texas, etc., R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 440, 51 L. Ed. 553, 27 S. Ct. 350. "The statute (Act of February 4, 1887, c. 104, 24 Stat. 379), while it created new rights in favor of shippers, in order to make those rights fruitful as to the sub- jects with which the statute dealt coming within the scope of the administrative unit}' which we have mentioned primarily made the judgment of the administrative body to whom the statute confided the entorcement of the act in the respects stated a prerequisite to a resort to the courts. In other words, as to the sub- jects stated, the act did not give to the courts power to hear the complaint of a party concerning a violation of the act, but only conferred power to give effect to such complaints, when by previous sub- mission to the commission, they had been sanctioned by a command of that body.'" Procter, etc., Co. v. United States, 225 U. S. 282; 296, 56 L. Ed. 1091, 32 S. Ct. 761. The decision in Southern R. Co. v. Tift, 206 U. S. 428, 51 L. Ed. 1124, 27 S. Ct. 709, does not qualify the ruling in the Abilene Case, and is not an authority sup- porting the right to resort to the courts in advance of action by the commission for lelief against unreasonable rates or un- just discriminatory practices which, from their nature, primarily require action by the commission. Baltimore, etc., R. Co. V. Pitcairn Coal Co., 215 U. S. 431, 54 L. Ed. 292, 30 S. Ct. 164. Grievances with respect to distribution of coal cars. — The grievances produced by regulations adopted by a railway com- pany for the distribution of coal cars in times of car shortage to the bituminous 784 Vol. VII. INTERSTATE, ETC., COMMERCE. 502 Effect of Provision with Respect to Preservation of Existing Reme- dies. — Investigation by the interstate commerce commission and an appropriate finding and order are prerequisite to the right of a shipper to maintain an action to recover from a carrier the excess which he claims to have paid under a reg- ularly established and published rate which is attacked as unjustly discriminatory, notwithstanding the provisions of the Act of Feb. 4, 1887, c. 104, § 22, 24 Stat. 387 (U. S. Comp. St. 1901, p. 3170), that nothing therein contained "shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies. "^'i'^ Proceeding Suspended Pending Action by the Commission— Subse- quent Proceedings. — The rule that an action at law to recover excessive inter- state freight charges can not be maintained in advance of action by the interstate commerce commission will not prevent a federal circuit court which has sus- pended proceedings on a bill seeking relief from an advance in freight rates, pending action bv the commission, from granting relief in the exercise of its powers under Act Feb. 4, 1887, c. 104, § 16, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], as a court of equity, on a petition filed after the commission has acted, stating the substance of the findings of the commission, and containing a copy of its report and opinion, where defendants have stipulated in open court that, in case complainants prevailed, decree of restitution might be made.^^^ Matters of Judicial Character — Duties So Plain as Not to Require Previous Action by the Commission. — Where the questions involved are of a judicial character, not suitable to be determined by a purely administrative body, as in the case of matters involving questions of general law. or where the complaint relates to the performance of duties which are so plain and so inde- pendent of previous administrative action of the commission as not to require a prerequisite exertion of power by that body, resort may be had to the courts direct.*^^^ coal mines served by it, which are alleged to violate the provisions of the act to regulate commerce of February 4, 1S87 (24 Stat, at L. 380, chap. 104), prohibiting unjust preferences or undue discrimina- .tions, can not be redressed, in advance of the action of the interstate commerce commission, by mandam.us to prohibit the acts complained of and prescribe a rule or regulation for the future, since the provisions of the Act of March 2, 1S89 (25 Stat, at L. 862, chap. 382, U. S. Comp. Stat. 1901, p. 3172), § 10, authorizing mandamus to compel the furnishing of cars and other facilities for transporta- tion, must be limited either to the per- formance of duties which are so plain and so independent of previous adminis- trative action of the commission as not to require a prerequisite exertion of power by that body, or to compelling the performance of duties which plainlj' arise from the obligatory force which the stat- ute attaches to the orders of the commis- sion, rendered within the lawful scope of its authority, imtil set aside by the com- mission or enjoined by the courts. Balti- more, etc., R. Co. V. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292, 30 S. Ct. 164. The controversy is controlled by the considerations which governed the ruling made in Texas, etc., R. Co. f. Abilene Coll on Oil Co.. 204 U. S. 426, 51 L. Ed. 5.53, 27 S. Ct. 350: Baltimore, etc.. R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292, 30 S. Ct. 164. 502-61d. Effect of provision with re- spect to preservation of existing reme- dies. — Robinson v. Baltimore, etc., R. Co., 222 U. S. 506, 56 L. Ed. 288, 32 S. Ct. lU, affirming 64 W. Va. 406, 63 S. E. 323. 502-61e. Proceedings suspended pend- ing action by commission — Subsequent proceedings. — Southern Iv. Co. f. Tift, 206 U. S. 42S, 51 L. Ed. 1124, 27 S. Ct. 709. affirming (C. C), 138 Fed. 753. 502-61f. Matters of judicial character — Duties so plain as not to require previous action by the commission. — Louisville, etc.. R. Co. v. Cook Brewing Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. 189; Bal- timore, etc., R. Co. t'. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292, 30 S. Ct. 164. Refusal of carrier to accept interstate shipment of intoxicating liquors. — A .'iliipper seeking relief because of the re- fusal of a carrier to accept interstate ship- ments of intoxicating liquors consigned to local option or ''dry'' points, which the carrier seeks to justify under a state statute forl)idding the transportation of such shipments, wliicli is attacked as an milawful regulation of commerce, may in- voke the jurisdiction of the courts without 12 U S Enc- 50 r85 503-505 INTERSTATE, ETC., COMMERCE. Vol. VII. aa. Jurisdiction. — Of Federal Courts — Generally. — See note 62. Of Action to Enforce Liability of Initial Carrier under Carmack Amend- ment. — See ante, "Liability of Carrier," II, A, 1, b, (3), (b), dd, (ff). Of Action Arising under Employers' Liability Act. — See ante, "Employ- ers' Liability Acts," II, A, b, (3), (b), dd, (cc>^), eee. cc. Action to Recover Unreasonable Charges. — Final Decree — Order of Reference. — The final decree of a federal circuit court in the proceedings pros- ecuted under Act Feb. 4, 1887, c. 104, § 16, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154], after action by the interstate commerce commission declaring an increased freight rate to be unreasonable, may direct an order of reference to the standing master of the pleadings and evidence in the cause, with instructions to ascertain the sum of the increase in rates paid since the rate went into effect, where de- fendants stipulated in open court that, in case complainants prevailed, a decree of restitution might be made.^*^'^ (4) Proceedings on Commission's Ozun Motion — (a) Poiifer Generally. — See ante, "Scope of Duties and Powers in General," IV, K, 2, b, (1). (a^^) Pozver to Investigate and Require Information — aa. Generally zvith Respect to Attendance of Witnesses and Production of Evidence. — The com- mission is given power to require the testimony of witnesses "for the purposes of this act," and the purposes of the act for which the commission may exact evidence embrace only complaints for violation of the act, and investigations by the commission upon matters that might have been made the object of com- plaint."^ ^^ The main purpose of the act was to regulate the interstate business of carriers, and the secondary purpose, that for which the commission was es- tablished, was to enforce the regulations enacted. These are the purposes here referred to; in other words, the power to require testimony is limited, as it usually is in English speaking countries at least, to the only cases where the sac- rifice of privacy is necessary, namely, those where the investigation concerns a specific breach of the law."-^ first applying to the interstate commerce merce Comm., 211 U. S. 407, 419, 53 L,. commission, since the question involved Ed. 253, 29 S. Ct. 115. is one of general law, for a iudicial tribu- 505-72b. Same — Limited to investiga- nal and one not competent for the com- tions concerning specific breach of the mission as a purely administrative body. law and matters which might have been Louisville, etc., R. Co. v. Cook Brewin;^ made the object of complaint. — Harriman Co., 223 U. S. 70, 56 L. Ed. 355, 32 S. Ct. v. Interstate Commerce Comm.. 211 U. 189. S. 407, 419, 53 L. Ed. 253, 29 S. Ct. 115. 503-62. Jurisdiction — Of federal courts, Witnesses can not be required to testify generally. — A case arising upon a bill to before the interstate cominerce commis- enjoin interstate carriers from putting into sion except in connection with complaints effect alleged unreasonable rates is a case for violation of the Interstate Commerce arising imder the constitution and laws ot y\ct or with the investigation by the com- the United States, since the right to be mission of subjects that might have been exempt from such unlawful exactions is made the object of complaint, these be- one protected by the Interstate Commerce ing the only matters contemplated by the Act as well as the Anti-Trust Act, and, provision of § 12 of that act, giving the of necessity, in determining the right to conimission power to require testimony the relief prayed for, a construction of the "for the purposes of this act," which act to regulate commerce is essentially power can not be exercised by the coni- involved. Macon Grocery Co. v. Atlantic, mission in performing its duty under that etc., R. Co.. 215 U. S. 501, 508, 54 L. Ed. section to keep itself informed as to the 300, 30 S. Ct. 184. manner and method in which the business 504-66a. Final decree, order of refer- of common carriers is conducted, nor in ence. — Southern R. Co. v. Tift, 206 U. S. connection with the enforcement of the 428, 51 L. Ed. 1124, 27 S. Ct. 709, affirm- requirement of § 20 respecting reports ing (C. C), 138 Fed. 753. by carriers, nor to aid the commis- 505-72a. Generally, with respect to at- sion in recommending, pursuant to § tendance of witnesses and production of 21. additional legislation to congress. Or- evidence. — Harriman v. Interstate Com- ders (C. C), 157 F. 432, affirmed in part 786 Vol. \MI. IXTBRSTATB, ETC., COMMERCE. 505 bb. Pozver to Prescribe Sysfon of Accounting, to Call for Reports, etc. — Con- stitutionality of Provision. — Congress did not exceed its power under the commerce clause by enacting the Act of February 4, 1887, § 20, as amended by the Act of June 29, 1906, under which common carriers by water upon the Great Lakes, engaged in the transportation of passengers and property partly by water, under a joint arrangement for the continuous carriage or shipment, may be required by the interstate commerce commission to adopt a uniform sys- tem of accounting and bookkeeping, and to make annual reports, which shall embrace not only the joint rail and water business, but the other business of the carriers as well, such as their port to port business, both intrastate and inter- state, and the business of operating amusement parks.'^^'^ Same — Delegation of Legislative Authority. — Leaving to the interstate commerce commission the carrying out of details in the exercise of its discre- tion under the Act of February 4, 1887, § 20, as amended by the Act of June 29, 1906, to prescribe a uniform system of accounting and bookkeeping for the car- riers subject to that act, does not render such section invalid as a delegation of legislative authority J ^^ Scope of Authority of Commission with Respect to Accounts and Re- ports. — As to accounts, the statute permits the commission, in its discretion, for the purpose of enabling it the better to carry out the purposes of the act, to pre- scribe a period of time within which such common carriers shall have a uniform system of accounts and the manner in which such accounts shall be kept. The commission may, the statute provides, in its discretion, prescribe the forms of all accounts, records, and memoranda to be kept by the common carriers, to which accounts the commission shall have access. And the act makes it unlawful for the carriers to keep any accounts, records, or memoranda other than those pre- scribed by the commission. This section contains ample authority for the com- mission to require a system of accounting and reports such as has been pro- vided for in its orders. And it is immaterial that the accounts required to be kept are general in their nature, and embrace business other than such as is necessary to the discharge of the duties required in carrying passengers and freight in interstate commerce by joint arrangement between railroads and car- riers by water, since the commission is charged under the law with the super- vision of such rates as to their reasonableness, and with the general duty of making reports to congress which might require a knowledge of the business of the carrier beyond that which is strictly of the character mentioned. If, there- fore, the commission is to successfully perform its duties in respect to reasonable rates, undue discriminations, and favoritism, it must be informed as to the busi- ness of the carriers by a system of accounting which will not permit the possible concealment of forbidden practices in accounts w^hich it is not permitted to see, and concerning which it can require no information."-^ and reversed in part. Harriman z'. Inter- ing upon any part of what it has in mind .state Commerce Comm., 211 IJ. S. 407, is not warranted by the act itself. Harri- 53 L. Ed. 2.5o, 29 S. Ct. 115. man v. Interstate Commerce Comm., 211 The contention of the interstate com- U. S. 407, 417. 53 L. Ed. 253._ 29 S. Ct. 115^ merce commission that it may make any 505-72c. Power to prescribe system of investigation that it deems proper, not accounting and reports— Constitutionality merely to discover anv facts tending to o* provision. — Tnlerstale Commerce defeat the purposes o'f the Act of Feb- Comm. v. Goodrich Transit Co., 224 U. ruarv 4, 1887, bin to aid in recommend- ^- '^^■^- »6 L. Ed. ~~9. ,32 b. Ct. 4.?d _ ing any additional legislation relating to , 505-72d. Same— Delegation of legisla- the regulation of commerce that it may tive authority —Interstate Commerce conceive to be within the power ot con- Comm. v. Goodrich Transit Co., 224 U. gress to enact; and that in such an in- ^- 19-^. 50 L. Ed. 729, .',2 b. Ct. 4.^0. vcstigation it has power, witli the aid of 505-72e. Scope of authority of commis- the courts, to require any witness to an- sion with respect to accounts and reports, swer any question that may have a bear- — Interstate Commerce Comm. v. Good- 787 505 INTERSTATE, ETC., COMMERCE. Vol. MI. Not a Regulation of Business of Carriers. — The requiring of information .concerning the business methods of such corporations, as shown in its accounts, is not a regulation of business not within the jurisdiction of the commission. The object of requiring such accounts to be kept in a uniform way, and to be open to the inspection of the commission, is not to enable it to regulate the af- fairs of the corporations not within its jurisdiction, but to be informed concern- ing the business methods of the corporations subject to the act, that it may properly regulate such matters as are really within its jurisdiction. Further, the requiring of information concerning a business is not regulation of that business. The necessity of keeping such accounts has been developed in the reports of the commission, and had been the subject of great consideration. It has caused the employment of those skilled in such matters, and has resulted in the adoption of a general form of accounting which will enable the commission to examine into the affairs of the corporations, with a view to discharging its duties of regulation concerning them.'^^f As to Corporations Organized under State Laws. — Corporations organ- ized under state laws, engaged in interstate carriage, could validly be subjected to regulation and control by the interstate commerce commission, in the exercise of its power, under the Act of February 4, 1887, § 20, as amended by the Act of June 29, 1906, to prescribe a uniform system of accounting and bookkeeping and to require annual reports." -= cc. Presumption and Burden of Proof. — As to Reasonableness of Rates. — No presumption of law that a freight rate upon a particular commodity is reasonably low exists because such rate has been duly published and filed by the carrier with the interstate commerce commission."-*^ Presumption upon Change of Rates. — There is no presumption of wrong arising from a change of rates by a carrier."-' dd. AdmissibUity of Evidence. — See ante, "Generally with Respect to At- tendance of A\'itnesses and Production of Evidence," I\', K, 2, b, (4), (a>^), aa. ee. Self -Incriminating Disclosures. — See, generally, ante. Constitutional Law, p. 264. Nature and Extent of Protection Afforded by Statute. — A shield against successful prosecution, available to the accused as a defense, and not immunity from the prosecution itself, is w'hat was secured by the xA.ct of February 25, 1903, as amended by the Act of June 30, 1906, providing that no person shall rich Transit Co., 224 U. S. 194, 56 L. E'l their port to port business, both in- 729, 32 S. Ct. 4.S6. trastate and interstate, and the business The interstate coniinerce corntnission of operating amusement parks. Inter- did not exceed its authority under the state Commerce Comm. v. Goodrich Act of February 4, 1887 (24 Stat, at L. Transit Co., 224 U. S. 194, 56 L. Ed. 729, 379, chap. 104, U. S. Comp. Stat. 1901, p. 32 S. Ct. 436. 3154), § 20, as amended by the Act of 505-72f. Not a regulation of business of June 29, 1906 (34 Stat, at L. 584, chap. carriers. — Interstate Commerce Comm.':'. 3591, U. S. Comp. Stat. Supp. 1909, p. Goodrich Transit Co., 224 U. S. 194, 56 L. 1150), to prescribe a uniform system of Ed. 729, 32 S. Ct. 436. bookkeeping and accounting for, and to 505-72g. As tO' corporations organize-l call for annual reports from, common under state laws. — Interstate Commerce carriers by water upon the Great Lakes, Comm. v. Goodrich Transit Co., 224 U. S. which, being engaged in the transporta- 194, 56 L. Ed. 729. 32 S. Ct. 436. tion of passengers and property, partly 505-72h. Presumption and burden of by railroad and partly by water, under a proof — As to reasonableness of rates.— joint arrangement for a continuous car- Illinois Cent. R. Co. t'. Interstate Com- riage or shipment, are, by § 1 of that act, merce Comm., 206 U. S. 441, 51 L. Ed. brought within its terms, because such 1128, 27 S. Ct. 700. accounting system and reports are not 505-72i. Presumption upon change of limited to the joint rail and water busi- rates. — Interstate Commerce Comm. r. ness, but are required to embrace as well Chicago, etc., R. Co., 209 U. S. 108, 52 L. the other business of the carriers, such as Ed. 705, 28 S. Ct. 493. Vol. \'1I. INTBRSTATB, ETC., COMMERCE. 505-510 be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence in any proceeding, suit, or prosecution under the Sherman antitrust and interstate commerce actsJ-^ (5) Notice and Enforcement of Findings. — See post, "Judicial Review of Findings and Orders of Commission," IV, K, 2. b, (6), et seq. (6) Judicial Reviezc of Findings and Orders of Commission — (a) Generally. — The primary jurisdiction is with the commission, the power of the courts be- ing that of review, and is confined in that review to questions of constitutional power and all pertinent questions as whether the action of the commission is within the scope of the delegated authority under which it purports to have been made.^^^ To quote the language of Air. Justice Lamar in a late case : "There has been no attempt to make an exhaustive statement of the principle involved, but in cases thus far decided, it has been settled that the orders of the commis- sion are final unless (1) beyond the power which it could constitutionally ex- ercise; or (2) beyond its statutory power; or (3) based upon a mistake of law. But questions of fact may be involved in the determination of questions of law, so that an order, regular on its face, may be set aside if it appears that (4) the rate is so low as to be confiscatory and in violation of the constitutional prohibition against taking property without due process of law; or (5) if the commission acted so arbitrarily and. unjustly as to fix rates contrary to evidence, or without evidence to support it; or (6) if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. "'^'^'' Findings upon Questions of Fact — Presumption as to Correctness of Finding's. — Originally the duty of the courts to determine whether an order of 505-72J. Nature and extent of protec- tion afforded by statute. — Heike v. United States. 217 U. S. 423. 432. .54 L. Ed. 821. 30 S. Ct. 539. See. also, ante, CONSTITU- TIONAL LAW. p. 264; post, SEARCHES AND SEIZURES. 510-91a. Judicial review of findings and orders of commission — Scope of review. — Interstate Commerce Comm. v. Clii- cago, etc., R. Co.. 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; Interstate Commerce Comm. V. Illinois, etc.. R. Co.. 215 U. S. 452. 478. 54 L. Ed. 280, 30 S. Ct. loo. 510-91b. Same — As stated by Mr. Jus- tice Lamar. — Interstate Commerce Comm. V. Union Pac. R. Co.. 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. citing Interstate Commerce Comm. i\ Illinois, etc., R. Co., 215 U. S. 452. 54 L. Ed. 280, 30 S. Ct. 155; Southern Pac. Co. v. Interstate Commerce Comm.. 219 U. S. 433, 55 L. Ed. 283. 31 S. Ct. 288; Interstate Commerce Comm. V. Northern Pac. R. Co., 216 U. S. 538, 544, 54 L. Ed. 608. 30 S. Ct. 417; Inter- state Commerce Comm. v. Alabama Mid. R. Co.. 168 U. S. 114. 174, 42 L. Ed. 414, 18 S. Ct. 45. Same— Statement by Mr. Justice \yhite. — "Beyond controversy, in determining whether an order of the commission shall be suspended or set aside, we must con- sider (a) all relevant questions of con- stitutional power or right; (b) all perti- nent questions as to whether the adminis- trative order is within the scope of the delegated authority under which it pur- ports to have been made; and (c) a proposition which we state independently, although in its essence it may be con- tained in the previous one, viz, v/hether, even though the order be in form within the delegated power, nevertheless it must be treated as not embraced therein, be- cause the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it. in truth, to be within the elementary rule that the substances, and not the shadow, determines the validity of the exercise or the power." Justice White, delivering opinion in Interstate Commerce Comm. T. Illinois, etc., R. Co., 215 U. S. 452. 54 L. Ed. 280. 30 S. Ct. 155. See, also. Pos- tal Tel. Cable Co. v. Adams. 155 U. S. 688. 698. 39 L. Ed. 311. 15 S. Ct. 268. Mistake of law — As to presum.ption from long maintenance of lower rate. — The iirterstate commerce commission can not be said to have based its order reduc- ing rares upon a mistake of law in re- garding the long nraintenance by the carriers of a lower rate while earning divi- dends as raisiu'j:- a presumption of rea- sonableness, where the reduced rate fixed by the commission was higher than such earlier rate. Interstate Commerce Comm. V. Union Pac. R. Co.. 222 U. S. 541, 50 L. Ed. 308, 32 S. Ct. 108. "89 510 INTERSTATE, ETC., COMMERCE. Vol. VII. the commission should or should not be enforced carried with it the obligation to consider both the facts and the law; but prior to the passage of the act cre- ating the commerce court the statute had made the findings of the commission prima facie correct, so that in considering the subject of orders of the commis- sion, for the purpose of enforcing or restraining their enforcement, the courts were confined by statutory operation to determining whether there had been vio- lations of the constitution, a want of conformity to statutory authority, or of ascertaining whether power had been so arbitrarily exercised as virtually to transcend the authority conferred although it may be not technically doing so. In reviewing the findings of the commission, therefore, the courts will not examine the facts further than to determine whether there was substantial evi- dence to sustain the order; or whether the commission acted arbitrarily and Unjustly and contrary to the evidence; or whether its authority was exercised in such an unreasonable and arbitrary manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of power. ^^"^ 510-91C. Findings upon questions of fact — Presumption as to correctness. — Interstate Commerce Comm. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108; Cincinnati, etc., R. Co. v. Interstate Commerce Comm., 206 U. S. 142, 154, 51 L. Ed. 995, 27 S. Ct. 648; Suulhern Pac. Co. v. Interstate Commerce Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 288; Interstate Commerce Comm. V. Illinois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Com- merce Comm. V. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; In- terstate Commerce Comm. v. Chicago, etc., R. Co., 218 U. S. 113, 54 L. Ed. 959, 30 S. Ct. 660, reversing (C. C), 171 Fed. 680; Interstate Commerce Comm. v. Dela- ware, etc., R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 S. Ct. 392, reversing (C. C.) 166 Fed. 499; Procter, etc., Co. v. United States, 225 U. S. 282, 297, 56 L. Ed. 1091, 32 S. Ct. 761. With regard to the finding of the com- mission upon the character of a rate, whether it is unreasonable as decided, such decision, the court has said with tiresome repetition, is peculiarly the province of the commission to make, and that its findings are fortified by presump- tions of truth, "due to the judgments of a tribunal appointed by law and informed by experience." Interstate Commerce Comm. V. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; Illinois Cent. R. Co. v. Interstate Commerce Comm., 206 U. S. 441, 454,51 L. Ed. 1128, 27 S. Ct. 700, and cases cited. Findings of the interstate commerce commission that certain through rates are unreasonable in themselves carry with them a presumption of correctness. In- terstate Commerce Comm. v. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; Interstate Commerce Comm. 7'. Chicago, etc., R. Co., 218 U. S. 113, 54 L. Ed. 959, 30 S. Ct. 660, reversing decrees in Chicago, R. I. & P. Ry. Co. v. Inter- state Commerce Commission (C. C. 1909), 171 F. 680. The statute makes the finding of the interstate commerce commission prima facie correct, and the courts will not ex- amine the facts on which the interstate commerce commission based its order re- ducing rates further than to determine wiiether there was substantial evidence to sustain the order. Interstate Commerce Comm. V. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. See, also, Cincinnati, etc., R. Co. v. Interstate Com- merce Comm., 206 U. S. 142, 154, 51 L. Ed. 995, 27 S. Ct. 648. Findings of fact made by the interstate com.merce commission in a proceeding for redress for unlawful discrimination in railway rates are not open to review in the courts. Interstate Commerce Comm. V. Delaware, etc., R. Co., 220 U. S. 235, 55 L. Ed. 448, 31 S. Ct. 392, reversing decree (C. C. 1908), Delaware, L. & W. R. Co. V. Interstate Commerce Commission, 166 F. 499, citing Baltimore, etc., R. Co. v. Pitcairn Coal Co., 215 «U. S. 481, 54 L. Ed. 292, 30 S. Ct. 164; Interstate Com- merce Comm. V. Chicago, etc., R. Co., 218 U. S. 88, 54 L. Ed. 946, 30 S. Ct. 651; l\\- terstate Commerce Comm. v. Illinois, etc.. R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; Interstate Commerce Comim. V. United Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. Where the commission exercises its au- thority to find existing rates unreason- able and undertakes to correct the same by prescribing reasonable rates, its find- ing is not subject to be reviewed by the court. In other words, an order of the commission is not open to attack in the courts so long as that body has kept within the powers conferred by the stat- ute. Southern Pac. Co. v. Interstate Com- merce Comm., 219 U. S. 433, 55 L. Ed. 2S3, 31 S. Ct. 288. But although the order made by _ the commission may have been couched in a 790 Vol. VII. INTERSTATE, ETC., COMMERCE. 510 Question of Power— Wisdom, Expediency, or What Court Would Have Done on Like Testimony, Not Considered. — In determining these mixed questions of law and fact, the court confines itself to the ultimate question as to whether the commission acted within its power. It will not consider the ex- pediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling. The findings of the commission are made by law prima iacie true, and the federal supreme court has ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience. Its conclusion, of course, is subject to review, but, when supported by evidence, is accepted as final, not that its decision, involving, as it does, so many and such vast public interest, can be supported by a mere scintilla of proof, but the courts will not examine the facts further than to determine whether there was sub- stantial evidence to sustain the order.^^'' The courts can not, under the guise of exerting judicial power, usurp merely administrative functions by setting aside an order of the interstate commerce commission within the scope of the power delegated to such commission, upon the ground that such power was un- wisely or inexpediently exercised. ^^® form which would cause it, superficially considered, to appear to be but the exer- cise of an authority to correct an unrea- sonable rate, yet if it plainly results from the record that the order of the coinmis- sion was not the exercise of such an au- thority, but was based upon the assump- tion by that body of the possession of a jK'wer not confeired by law, th(; mere form given by the commission to its ac- tion does not relieve the courts from the duty of reviewing and correcting an abuse of power. Southern Pac. Co. v. Interstate Commerce Comm., 219 U. S. 4.3?.. 55 L. Ed. 283, 31 S. Ct. 2S8. Where the order entered by the com- mission shows on its face that that body assumed that it had power not merely to prevent the charging of imjust and un- reasonable rates, but also to regulate and control the general policy of the owners of railroads as to fixing rates, and con- sequently that there was authority to substitute for a just and reasonable rate one which, in and of itself, in a legal sense, might be unjust and imreasonable, if the commission was satisfied that it was a wise policy to do so, because a railroad had so conducted itself as to be estopped in the future from being en- titled to receive a just and reasonable compensation for the service rendered, it shows that the commission has been guilty of an abuse of power which the courts have jurisdiction to review and correct. Southern Pac. Co. v. Interstate Commerce Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 288. Thus where a railroad compan}^ fixed a rate of $3.10 per ton upon lumber shipped from a certain locality and con- tinued it in force for several years and imtil the industrj^ had grown and reached considerable proportions in that locality, the commission had no power to abolish a new rate of $5.00 per ton where such rate was not shown to be unreasonable of itself, but merely upon the ground that the prosperit}^ of the lumber business in that locality would be seriously impaired by the enforcement of the new rate, and that the railroad company, having estab- lished a rate imder which the industry had grown up, was now estopped from fixing a rate which, while not unreason- able for the service rendered, would im- pair the prosperity of the business which had grown up under the old rate. South- ern Pac. Co. V. Interstate Commerce Comm., 219 U. S. 433, 55 L. Ed. 283, 31 S. Ct. 288. Evidence from which experts might have named rate. — An order of the inter- state commerce commission reducing rates can not be said to have been made v>'ichout substantial evidence to support it, where, although there is no direct testi- mony that the old rate was unreasonably high, there were facts in evidence from which experts could have named a rate. Interstate Commerce Comm. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108. 510-91d. Question of power — Wisdom, expediency or what court would have done on like testimony not considered. — Interstate Commerce Comm. v. Union Pac. R. Co., 222 U. S. 541, 56 L. Ed. 308, 32 S. Ct. 108, citing Illinois Cent. R. Co. V. Interstate Commerce Comm., 206 U. S. 441, 51 L. Ed. 1128, 27 S. Ct. 700. 510-91e. Same. — Interstate Commerce Comm. V. Illinois, etc., R. Co., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155; decree, Chicago, etc., R. Co. v. Interstate Com- merce Commission, 173 Fed. 930, reversed; Interstate Commerce Comm. v. Chicago, etc., R. Co., 215 U. S. 479, 54 L. Ed. 291, 30 S. Ct. 163; Baltimore, etc., R. Co. v. Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292, 30 S. Ct. 164. Arguments which point out and assail r91 510 INTERSTATE, ETC., COMMERCE. Vol. VII. Review of Question of Jurisdiction — Mandamus to Compel Commis- sion to Take Jurisdiction. — The interstate commerce commission is purely an administrative body. It is true it may exercise and must exercise quasi judicial duties, but its functions are defined, and, in the main, explicitly directed, by the acts creating it and it is not the final judge of its own jurisdiction. On the othei hand, if it refused to take jurisdiction under a mistaken view of the law in a proper case, a mandamus will lie to compel it to take jurisdiction.^ ^^ Existence of Satisfactory or Reasonable Through Route. — The courts may review the determination of the interstate commerce commission upon the question whether "no reasonable or satisfactory through route exists" within the meaning of the Act of June 29, 1906, c. 3591, § 4, 34 Stat. 589 (U. S. Comp. St. Supp. 1909, p. 1158), conditioning the authority of the commission to estab- lish through routes and joint rates upon the nonexistence of such route. ^^^ (b) Constitution and Poivers of the Commerce Court — aa. General Purpose and Intent of Act Creating Court. — The act creating the commerce court was intended to be but a part of the existing system for the regulation of interstate commerce, which was established by virtue of the original adoption in 1887 of the act to regulate commerce, and which was expanded by the repeated amend- ments of that act which followed, developed in practical executions by the rul- ings of the interstate commerce commission, upon whom was cast the adminis- trative enforcement of the act. the whole elucidated and sanctioned by a long line of decisions of the federal supreme court, and by adopting the provisions concerning the commerce court and making it part of the system, it was not in- tended to destroy the existing machinery or method of regulation, but to cause it to be more efficient by affording a more harmonious means for securing the judicial enforcement of the act to regulate commerce. ^^"^ bb. Jurisdiction of Court in General. — The first section of the act creating the commerce court, wherein is recited the jurisdiction of the commerce court, makes clear that the purpose was not to create a court with new and strange powers destructive of the previous well-established administrative authority of the in- terstate commerce commission and in conflict with the general jurisdiction vested in the courts of the United States, but only to give to the new court the special jurisdiction then possessed by the courts of the United States for the enforce- ment of orders made by the commission, and thus to unify the exertion of ju- the imperfection which may appear in tlio Same; jurisdiction as to railway corn- result, assail, it is said, the wisdom of pany operating in Alaska. — Mandamus lies congress in conferring upon the commis- to compel the interstate commerce coni- sion the power which has been lodged in mission to take jurisdiction of a petition that body to consider, complaints as to alleging violations of the Interstate Com- violations of the statute, and to correct merce Act by a railway company operat- them if found to exist, or attack as crude ing in Alaska, where the commission re- or inexpedient the action of the commis- fused to entertain the petition, upon the sion in the performance of the administra- ground that Alaska was not a territory tive functions vested in it, and upon such of the United States, and that the subject assumption invoke the exercise of unwar- matter of the petition was therefore not ranted judicial power to correct the as- within the scope of the commission's pow- sumed evils. Interstate Commerce Comni. ers. Interstate Commerce Comm. v. V. Chicago; etc., R. Co., 218 U. S. 88, 54 Humboldt Steamship Co., 224 U. S. 474, L. Ed. 946, 30 S. Ct. 651; Interstate Com- 56 L. Ed. 849, 32 S. Ct. 556. merce Comm. v. Illinois, etc., R. Co., 215 510-91g. Existence of satisfactory or U. S. 452, 478, 54 L. Ed. 280, 30 S. Ct. 155; reasonable through route.— Interstate Baltimore, etc., R. Co. v. Pitcairn Coal Commerce Comm. v. Xorthern Pac. R. Co., 215 U. S. 481, 54 L. Ed. 292, 30 S. Co., 216 U. S. 538. 54 L. Ed. 608, 30 S. Ct. Ct. 164. 417. 510-91f. Review of question of jurisdic- 510-91h. The commerce court — General tion — Mandamus to compel commission purpose and intent of act creating court, to take jurisdiction. — Interstate Commerce — Procter, etc., Co. v. United States, 225- Comm. V. Humboldt Steamship Co., 224 U. S. 282, 294, 56 L. Ed. 1091, 32 S. Ct. U. S. 474, 56 L. Ed. 849, 32 S. Ct. 556. 761. 792 Vol. MI. INTERSTATE, ETC., COMMERCE. 510 dicial power with reference to the enforcement of the orders of the commission. The opening words of the section which make this resnlt clear are as follows: It (the commerce conrt) shall "have the jurisdiction now possessed by the cir- cuit courts of the United States and the judges thereof, over all cases of the following kinds," etc^^' The declaration in the act that nothing in the fact that the existing power of the circuit courts as to the subjects of jurisdiction trans- ferred to the new court should be deemed as an enlarging of those powers, and that nothing in the transfer of the enumerated powers to the commerce court should be considered as limiting or abridging the existing jurisdiction possessed by the circuit courts as to things and subject matters not embraced in the powers transferred, serve to make clear the legislative intent that the creation of a new body to exercise a portion of the existing judicial power should not in any way enlarge the power as existing or be implied as destroying or minimizing the gen- eral scope of the judicial power possessed by the circuit courts where such power was not embraced within the authority transferred to the new body.'^^^ cc. Poivers Conferred by § 20/, ,Subdk'ision 2. — The words in this second subdivision are: "Second. Cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the interstate commerce commission." Giving to these words their natural significance, it follows that they confer jurisdiction only to entertain complaints as to affirmative orders of the commission ; that is, they give the court the right to take cognizance when properly made of com- plaints concerning the legality of orders, rendered by the commission and confer power to relieve parties in whole or in part from the duty of obedience to orders which are found to be illegal. They do not invest that court with jurisdiction to redress complaints based exclusively upon the conception that the interstate commerce commission, in a matter submitted to its judgment, and within its com- petency to consider, has mistakenly refused, upon the ground that no right to the relief claimed was given by the act to regulate commerce, to award the relief which was claimed at its hands. In other words, the authority of the commerce court under the provision of the statute is confined to enforcing or restraining, as the case may require, affirmative orders of the commission, and it has no power to exert its own judgment by originally interpreting the administrative features of the act to regulate commerce and upon that assumption treat a re- fusal of the commission to grant relief as an affirmative order and accordingly pass on its correctness. ''i*" That this is the proper construction of the act is further made to appear by reading this second subdivision of § 207 in connection with the first. The first subdivision provides for the enforcement of orders, that is, the compelling of the doing or abstaining from doing of acts embraced by a previous affirmative command of the commission, and the second dealing with the same subject from a reverse point of view, provides for the contin- gency of a complaint made to the court by one seeking to prevent the enforce- ment of orders of the commission such as are contemplated by the first paragraph. In other words, by the co-operation of the two paragraphs, authority is given on the one hand to enforce compliance with the orders of the commission if lawful, and. on the other hand, power is conferred to stay the enforcement of an illegal order, which must, in the nature of things, mean an affirmative order as in the other case.'^^' 510-91i. Jurisdiction of court, in general. subdivision 2. — Procter, etc., Co. v. United — Procter, etc., Co. v. United States, 225 States, 225 U. S. 282, 292, 56 L. Ed. 1091, U. S. 282, 299, 56 L. Ed. 1091, 32 S. Ct. 32 S. Ct. 761. 761. 510-911. Same — Construing subdivisions 510-91J. Same — Powers transferred from 1 and 2 together. — Procter, etc., Co. v. circuit courts. — Procter, etc., Co. :'. United United States, 225 U. S. 282, 293, 56 L. States, 225 U. S. 282, 300, 56 L. Ed. 1091, Ed. 1091, 32, S. Ct. 701. 32 S. Ct. 761. To give to this section of the statute 510-91k. Powers conferred by § 207, a meaning contrary to that above stated 793 510 INTERSTATE, ETC., COMMERCE. Vol. VII. Review of Denial of Constitutional Right Asserted in Petition. — If the claim of constitutional right concerned a subject which, from its very nature and effect, dominated the act to regulate commerce and therefore was wholly independent of all questions of right or remedy created by or depending upon that statute, then the issue presented a controversy not cognizable in the com- merce court, as it could not so be without violating the express reservation and restriction as to the general power of the circuit courts contained in the act. If, on the other hand, the constitutional question was involved in or depended upon the provisions of the act to regulate commerce, that question in the nature of things was subject to the precedent action of the commission on the subjects committed to it by the act to regulate commerce and as to which the court had jurisdiction alone to act in virtue of a prior affirmative order of the commis- sion.9i°^ dd. Reviezv of Question of Jurisdiction. — An appeal will not lie to the com- merce court to review the action of the interstate commerce commission in re- fusing to entertain a petition, on the ground that the subject matter was not within the scope of the commission's powers. The proper procedure is by mandamus to compel the commission to take jurisdiction and proceed according to law.9i° and to recognize in the commerce court the existence of the power to interpret originally the administrative features of the act to regulate commerce, and to treat the refusal of the commission to grant relief prayed for as an affirmative order and renew it accordingly would re- sult in frustrating the legislative public policy which led to the adoption of the act to regulate commerce, would render impossible a resort to the remedies which the statute was enacted to afford, would multiply the evils which the act to regu- late commerce was adopted to prevent, and thus bring about disaster by creating confusion and conflict where clearness and unity of action was contemplated. Procter, etc., Co. v. United States, 225 U. S. 2S2. 294. 56 L. Ed. 1091. 32 S. Ct. 761. Order denying relief against demurrage charges. — The jurisdiction of the com- merce court under the Judicial Code of March 3, 1911 (36 Stat, at L. 114S, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 216), § 207, of "cases brought to enjoin, set aside, annul, or suspend, in whole or in part, any order of the interstate com- inerce commission," embraces only com- plaints of affirmative action by the com- mission, and does not confer the power to redress a complaint based solely upon the refusal of the commission to award the relief asked by a shipper against de- murrage regulations, upon the ground that the federal statutes gave no right to the relief claiined. The commerce court has no right in such case to treat the order denying relief as an affirmative order and take jurisdiction of a petition filed in that court, making the United States, the in- terstate commerce commission, and the railroads parties defendant and praying the same relief which had been denied by the commission. Procter, etc., Co. v. United States, 225 U. S. 282, 56 L. Ed. 1091, 32 S. Ct. 761. Refusal to reduce rates. — The com- merce court has no jurisdiction of a com- plaint by shippers of the refusal of the interstate commerce commission to reduce maximum rates to the full extent asked. Hooker v. Knapp, 225 U. S. 302, 56 L. Ed. 1099, 32 S. Ct. 769. Orders commanding carriers to desist from unlawful discrimination held to be affirmative. — The commerce court has the right to entertain jurisdiction of a peti- tion filed by an interstate carrier seeking to enjoin the enforcement of an affirma- tive order of the interstate commerce commission ordering said carrier to de- sist from making certain allowances to one shipper without making the same al- lowances to others for floatage, lighter- age and terminal services rendered by such shippers to the carrier. United States V. Baltimore, etc., R. Co., 225 U. S. 306, 56 L. Ed. 1100. 32 S. Ct. 817. The commerce court, in the exercise of its power under the Act of June 18, 1910 (36 Stat, at L. 542, ch. 309), § 3, to enjoin, set aside, annul or suspend any order of the interstate commerce commission, has jurisdiction to entertain a petition to en- join an order of the commission requiring railway companies to cease charging lower rates for coal intended for railway consumption than is accorded to other shippers. Interstate Commerce Comm. r. Baltimore, etc., R. Co., 225 U. S. 326, 56 L. Ed. 110, 32 S. Ct. 742. 510-91m. Review of denial of constitu- tional right asserted in petition. — Procter, etc., Co. V. United States, 225 U. S. 283, 301, 56 L. Ed. 1091, 32 S. Ct. 761. 510-91n. Review of question of jurisdic- tion. — Interstate Commerce Comm. v. r94 Vol. ATI. IXTERSTATE. ETC., COMMERCE. 510 ee. Temporary Restraining Orders, Preliminary and Perpetual Injunctions. — Section 3 (208), provides that the mere pendency of a suit to enjoin, set aside, annul or suspend an order of the commission "shall not stay or suspend the operation of such order" but confers upon the court the power, under circum- stances stated, to restrain or suspend in whole or in part the operation of an order; that is, of course, an affirmative order, of the commission. The same section makes a finding that irreparable injury will result from the operation of an order sought to be enforced, essential to the granting of an order restrain- ing or suspending its enforcement.^^" Applicability of Requirement as to Statement or Irreparable Damage. — Only temporary restraining orders of the commerce court, issued conformablv to the Act of June 18. 1910 ( 36 Stat, at L. 542. chap. 309), § 3, staying in whole or in part the operation of an order of the interstate commerce commission for not more than sixty days, are aft'ected by the requirements of that section re- specting a statement of fact as to irreparable damage; they have no application to a preliminary injunction or injunction pendente lite.^^P Humboldt Steamship Co., 224 U. S. 474, 56 L. Ed, 849, 32 S. Ct. .556. 510-91O. Temporary restraining orders, injunctions, etc. — In general. — Procter, etc., Co. z\ United States, 225 U. S. 2S2. 294, 56 L. Ed. 1091. 32 S. Ct. 761; United States t. Baltimore, etc., R. Co., 225 U. S. 306. 56 L. Ed. 1100, 32 S. Ct. 817; Interstate Commerce Comm. v. Baltimore, etc.. R. Co., 225 U. S. 326. 56 L. Ed. 1107, 32 S. Ct. 742. The cominerce court also has power to allow a preliminary injunction against an affirmative order of the interstate com- merce commission ordering a carrier to desist from discriminating in the matter of allowances for floatage, lighterage, and terminal services, since that authority is conferred in express terms by § 3 (§ 208). 36 Stat, at L. 1149. chap. 231. U. S. Comp. Stat. Supp. 1911, p. 217, 36 Stat, at L. 542, chap. 209), of the act. United States V. Baltimore, etc., R. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S. Ct. 817. The commerce court, in the exercise of its power, under the Act of June 18, 1910 (36 Stat, at L. 542, chap. 309). § 3, to en- join, set aside, annul, or suspend any or- der of the interstate commerce commis- sion, has jurisdiction to entertain a peti- tion to enjoin an order of the commission requiring railway companies to cease charging lower rates for coal intended for railway consumption than is accorded to other shippers, and may enjoin such order if it considers that it will work irreparable injury, where the question presented by the petition is that the or- der of the commission was not merely ad- ministrative, but proceeded from a con- struction of certain sections of the act to regulate commerce as applicable to the conditions which affected the traffic in the different kinds of coal, and that the dif- ferent charges for transportation con- stituted violations of those sections. In- terstate Commerce Comm. z\ Baltimore, etc.. R. Co.. 225 U. S. 326, 56 L. Ed. 1107, 32 S. Ct. 742. 510-91p. Applicability of requirement as to statement of irreparable damage. — United States v. Baltimore, etc.. R. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S. Ct. 817. In this case it was urged on behalf of the United States and the interstate com- merce commission that, wholly irrespec- tive of the merits of the petition, the or- der granting the interlocutory injunction should be reversed because of what was insisted to be the express requirements of the act imposing the duty on the com- merce court or a judge of that court, if a restraining order was granted under the conditions in the statute, to state the facts from which it was found that irrep- arable injury would arise if a restraining order were not allowed. Answering this contention, the court said: "Without ambiguity we think the statute contem- plates three classes of orders: First, a temporary restraining order staying in whole or in part the operation of the or- der of the interstate cominerce commis- sion for not more than sixty days from the date of the suspensive order, to be al- lowed b}' the court or a judge thereof; second, a preliininary injunction, that is, an injunction pendente lite, which, to quote the words of the statute, may be granted by the court to 'restrain or sus- pend, in whole or in part, the operation of the commission's order pending the final hearing and determination of the suit;' third, in the nature of things a per- petual injunction upon the entry of the final decree. The order in this case, made after notice and hearing, suspending the force and effect of the order of the com- mission until further order of the court, was obviousl}' an exercise of the power conferred to grant a preliminary injunc- tion or injunction pendente lite, and not of the power to allow a temporary re- 795 510 INTERSTATE, ETC, COMMERCE. Vol. VII. Applicability of General Equity Principles with Respect to Allowance of Pendente Lite Injunctions. — Inasmuch as it appears from the act creating the commerce court and defining its powers and jurisdiction. that the power of said court to issue a prehminary injunction was recognized and preserved so as to afiford the court proper time for deliberation and consideration of the questions to be decided by the commission, instead of compelling said court, upon presenta- tion of a petition, to reach a final conclusion eo instante, the general ecjuity principle requiring courts of equity called upon to allow preliminary pendente lite injunctions, to determine whether on the face of the papers presented there is such an equitable cause of action presented as justifies the issue of the pre- liminary injunction prayed for, will not be applied.-'^'' Necessity for Injunction or Order — Discretion of Court. — The granting by the commerce court of an injunction pendente lite suspending, until final determination of the suit, an order of the interstate commerce commission, re- quiring certain carriers to desist from making further alleged discriminatory allowances, is not in excess of its power, under the Act of June 18, 1910, § 3, straining order embraced in the first of the classes stated. As we think it clear that the requirements of the statute relied upon respecting the statement of facts as to irreparable damages relate only to the first class of cases, that is, the power to issue a temporary restraining order, we hold the objection to be with- out merit." United States v. Baltimore, etc., R. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S. Ct. 817. 510-91q. Applicability of general equity principles with respect to allowance of pendente lite injunctions. — United States V. Baltimore, etc.. R. Co., 225 U. S. 306, 56 L. Ed. 1100, 32 S. Ct. 817. "Under the general principles of equity, where a court is called upon to decide whether it will allow a preliminary or pendente lite injunction, the duty arising requires it to be determined whether, on the face of the papers presented, there is such an equitable cause of action pre- sented as justifies the issue of a pre- liminary injunction to preserve the status pending the suit; that is, to afford an op- portunity for a trial of the issues pre- sented. Necessarily it is true that where an appeal is allowed from an order grant- ing a preliminary injunction- the review- ing court is put to the duty of determin- ing whether, on the face of the papers, the court below erred as a matter of law in granting the preliminary injunctions. Do these principles apply to the case before us is then the first consideration. The result of holding that they do, will in- evitably cause the expunging from the act of the express authority conferred to is- sue a preliminary injunction, since, viewed under the general principles of equity, the criteria by which to determine the right- fulness of such an order in view of the nature and character of the jurisdiction of the commerce court is exactly and ex- clusively the same criteria by which the rightfulness of a final degree of that court, issuing a perpetual injunction in conformity to such decree, would require to be tested. Our duty, however, is not to destroy the law, but to enforce it; and in doing so to seek to discover the inten- tion of the lawmaker, the wrong intended to be prevented, and the remedy designed to be afforded by the enactment of the statnte. Coming to consider the statute for this purpose, we have pointed out in the Procter & Gamble Case that the great remedy intended to be accom- plished was the concentration in a single court of the power to consider the right- fulness of enforcing or setting aside or- ders of the commission; that, to prevent unnecessary delays, the limitations as to restraining orders and their duration, and the hearing which is cominanded as to irreparable injury, were enacted. It must tlieretore in reason be that the power to issue a preliminary injunction was recog- nized and preserved so as to afiford the court the proper time for deliberation and consideration of the questions to be de- cided by the cominission, instead of com- pelling that body virtually eo instante upon the presentation of a petition to reach a final conclusion. And it would seem also to be the case that the right to appeal from such an order was given as a safeguard against a possible abuse of discretion by an unwarranted, arbi- trary, and unreasonable exercise of the power conferred. In other words, we think that the enlightened purpose of congress was that the court which it created, in the exercise of the important trusts confined to its authority, and where occasion required it as a consequence of the gravity and complexity of the legal questions which might arise, should be afiforded ample opportunity for due con- sideration and ripe judgment, and that it was not intended to compel precipitate, and perhaps ill-considered, action." United States V. Baltimore, etc., R. Co., 225 U. S. 306, 56 L. Ed. 1110, 32 S. Ct. 817. r96 \'ol. yil. IXTERSTATE, ETC., COMMERCE. 510 unless it was plainly unnecessary because of the obvious nature and character of the legal questions as to which the judgment of the court was invoked.^^^ ff. Scope of Rcz'iczc. — Originally the duty of the courts to determine whether an order of the commission should or should not be enforced carried with it the obligation to consider both the facts and the law. But it had come to pass prior to the passage of the act creating the commerce court that in considering the subject of orders of the commission, for the purpose of enforcing or restrain- ing their enforcement, the courts were confined by statutory operation to de- termining whether there had been violations of the constitution, a want of conformity to statutory authority, or of ascertaining whether power had been so arbitrarily exercised as virtually to transcend the authority conferred although it may be not technically so.'^i*' It was also determined in the Procter and Gamble Case,^^' in considering whether an affirmative order of the commerce court, that the commission should be enforced, on the one hand, or set aside and declared nonenforceable on the other, was endowed only with the jurisdiction and power existing, at the time that act was passed in the circuit courts of the United States ; and as, at that time, it was conclusively settled that the courts had authority to re-examine the findings of the commission in such cases only for the purpose of ascertaining whether the action of the commission was re- pugnant to the constitution, in excess of the statutory powers conferred upon it, or manifested such an abuse as to be equivalent to an excess of authority, it clearly results that the commerce court was likewise limited in passing upon the petition brought before it.^^" gg. Appeal to Supreme Court of the United States. — By § 2 (§ 210) of the act, the right to appeal to the United States supreme court from an order of the commerce court issuing a preliminary injunction against the enforcement of the affirmative order of the interstate commerce commission, is given in express terms.oi^ Suspension of Orders Pending Appeal. — The enforcement of an order of the interstate commerce commission will be suspended pending an appeal from the commerce court sustaining the order when it is proper from the facts of the 'Case to maintain the status quo.^^^ Rule of Decision on Appeal. — The commerce court was created for the purpose, among other things, of interposing between the interstate commerce commission and the federal supreme court an intermediate tribunal having powers which the statute delegates to it, and it is the duty of the federal supreme court 510-91r. Necessity for injunction or or- commerce court, therefore, bad jurisdic- der — Discretion of court. — United States tion of the petition and jurisdiction to en- z\ Bahimore, etc., R. Co., 225 U. S. 306, join the order of the commission if the 56 L. Ed. 1100, 32 S. Ct. 817. court considered that the order would 510-91S. Scope of review. — Procter, etc., cause irreparable injury. Section 3 of Co. V. United States, 225 U. S. 282, 297, 56 the act creating the commerce court gives L. Ed. 1091, 32 S. Ct. 761. that court the power to 'enjoin, set aside, 510-91t. Same — Procter and Gamble de- annul, or suspend any order of the inter- cision. — Procter, etc., Co. r. United States. state commerce commission, in a suit 225 U. S. 282, 56 L. Ed. 1091, 32 S. Ct. 761. Ijrought in the court against the United 510-91U. Same. — United States z\ Balti- States.'" Interstate Commerce Comm. i'. more, etc., R. Co., 225 U. S. 306, 56 L. Ed. Baltimore, etc., R. Co., 225 U. S. 326, 56 1100, 32 S. Ct. 817. L. Ed. 1107, 32 S. Ct. 742. In another case, the court says: ''The 510-91v. Appeal to supreme court of question presented by the petition is that the United States — The right of appeal. — the order of the commission was not United States 7: Baltimore, etc.. R. Co., merely administrative, but proceeded from 225 U. S. 306, 56 U Ed. 1100, 32 S. Ct. a construction of §§ 2 and 3 as applicable 817. to the conditions which affected the traffic 510-91w. Suspension of orders pending in the different kinds of coal, and that the appeal. — Omalia, etc., St. R. Co. r. ^Inter- different charges for transportation con- state Commerce Comm., 222 U. S. 582, stituted violations of those sections. The 56 U Ed. 324, 32 S. Ct. 833. 510 INTERSTATE, ETC., COMMERCE. Vol. VII. to uphold the lawful authority of the commerce court. Therefore, the federal supreme court will not reverse an order of the commerce court granting a pre- liminary injunction against an affirmative order of the interstate commerce com- mission, except in the case of a clear abuse of power, but will remand the case so that there may be an opportunity to dispose of it on the merits in the form selected by congress for that purpose.^^'' (7) Criminal Prosecutions. — As to the nature and elements of the offenses of giving rebates, illegal reductions, undue preferences and unequal facilities, when offense complete, separate and continuing oft'enses, applicability and con- stitutionality of the statute as respects existing agreements for rebates, etc., see ante, "Special Rates, Rebates, etc.. Prohibited," IV, D, et seq. ; "Undue Preference and Equal Facilities," IV, E, et seq. Jurisdiction and Venue. — The offense of obtaining transportation of prop- erty in interstate or foreign commerce at less than the carrier's published rates, created by the Elkins Act of February 19, 1903, is made triable in any federal district through which such transportation is had, by the provision of that act that violations shall be prosecuted in any court of the United States having jurisdiction of crimes within the district in which such violation was committed, or through which the transportation may have been conducted. ^^^' Same — Constitutionality of Statute. — The requirement that the prosecu- tion of crimes against the United States be had in the state or district where the offense was committed, which is made by U. S. Const., Sixth Amendment, is not violated by the provision of the Elkins Act of February 19, 1903, under which the oft'ense of obtaining transportation of goods at less than the carrier's published rates may be tried in any federal district through which such trans- portation was conducted.^i^ The Indictment — Joinder of Defendants. — P>oth the corporation and its agents may be joined in an indictment for violating the provisions of Elkins Act Feb. 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), 510-91X. Rule of decision on appeal. — But as this case manifests no such abuse, United States f. Baltimore, etc., R. Co., our duty is not to reverse the action of 225 U. S. 306, 56 L. Ed. 1100, 32 S. Ct. 817. the court, but to remand the case, so that The federal supreme court will not dis- there may be an opportunity to dispose of turb on appeal the granting by the com- it on the merits in the forum selected by merce court of an injunction pendente congress for that purpose. Of course, in lite suspending, until final determination saying this, we must not be understood of the suit, an order of the interstate com- as deciding or in any way implying that merce commission, requiring certain car- the duty would not exist to examine the riers to desist from making further al- merits of a preliminary order of the gen- leged discriminatory allowances, unless eral character of the one before us in a it was so unwarranted, arbitrary, and un- case where it plainly, in our judgment, reasonable as to amount to an abuse of appeared that the granting of the pre- discretion. United States v. Baltimore, liminary order was in effect a decision by etc., R. Co., 225 U. S. 306, 56 L. Ed. 1100, the court of the whole controversy on the 32 S. Ct. 817. merits, or where it was demonstrable "It is not disputable that although the that grave detriment to the public interest right to appeal to this court from an or- would result from not considering and der like the one here in question is con- finally disposing of the controversy with- ferred, yet obviously the purpose which out remanding to enable the court below must have caused the creation of the com- to do so." United States v. Baltimore, merce court must have been the desire to etc., R. Co.. 225 U. S. 306, 56 L. Ed. 1100, interpose between the action of the com- 32 S. Ct. 817. mission and this court an intermediate 510-91y. Jurisdiction and venue. — Ar- tribunal, having the powers which the mour Packing Co. v. United States, 209 statute delegates to it. Our duty is to U. S. 56, 52 L. Ed. 681, 28 S. Ct. 428. give that purpose effect and to uphold the 510-91z. Same — Constitutionality of lawful authority of the court without statute. — Armour Packing Co. v. United deviation, and yet without hesitancy, States. 209 U. S. 56, 52 L. Ed. 681, 28 S. where there has been an abuse of discre- Ct. 428. tion, to correct it in the completest way. 798 Vol. MI. IXTERSTATE, ETC., COMMERCE. 510 against rebates, under which the commission by corporate officers or agents, act- ing within the scope of their employment, of criminal violations of the provisions of that act, is imputed to the corporation, and the corporation subjected to criminal prosecution therefor. ^^^^^ Indictment — Charging the Offense. — In view of the provisions § 1025 of the Revised Statutes of the United States, which provides that no judgment upon an indictment shall be affected by reason of any defect or imperfection in matter of form which shall not tend to the prejudice of the defendant, and, unless the substantial rights of the accused were prejudiced by the refusal to require a more specific statement of the manner in which the offense was com- mitted, there can be no reversal. An indictment under the Elkins Act (32 Stat. 847), which specifically states the elements of the oft'ense charged with sufficient particularity to fully advise the defendant of the crime charged to enable a conviction, if had. to be pleaded in bar of any subsequent prosecution of the same offense is sufficient. It is only substantial defects that are available to reverse a judgment of conviction. ^^'^'^ Instructions — Submitting Issues, Stating Elements of Offense, etc. — Submitting to the jury on a prosecution against a shipper for accepting rebates in violation of the Elkins Act of February 19, 1903, the question whether or not there was a device to avoid the operation of the act and to obtain the trans- portation at less than the carrier's published rates, did not prejudice the accused, where, vmder that act, no device or contrivance, secret or fraudulent in its nature, is requisite to the commission of the offense, any means by which trans- portation by a concession from the established rate was had being sufficient to work a conviction. ^^^^^ 510-91aa. The indictment — Joinder of defendants. — Xew York, etc., R. Co. i'. United States, 212 U. S. 481, 53 U Ed. 613. 29 S. Ct. 304. affirming (C. C.) 146 Fed. 298. 510-91bb. Indictment — Charging the of- fense. — Xew York, etc., R. Co. v. United States. 212 U. S. 481, 53 U Ed. 613. 29 S. Ct. 304; Xew York, etc., R. Co. v. United States. Xo. 2. 212 U. S. 500, 505, 53 U Ed. 624. 29 S. Ct. 309; Connors v. United States. 158 U. S. 408. 39 L. Ed. 1033. An indictment charging a shipper with securing transportation of goods in inter- state or foreign commerce at less than the carrier's published rates, in violation of Elkins Act February 19. 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), is sufficient where it charges each and all of the elements of the offense, with allegations of time, place, kind of goods, and name of carrier, averring the fixing of the published rate, the changing of the rate, and the new publication, the shipper's knowledge of this change, and the carriage of the goods over a described route at a concession of the difference be- tween the two rates. Armour Packing Co. V. United States. 209 U. S. 56. 52 L. Ed. 681, 28 S. Ct. 428, affirming judgment (1907). 153 F. 1, 82 C. C. A. 135; Chicago, etc., R. Co. V. United States, 209 U. S. 90, 52 L. Ed. 698, 28 S. Ct. 439, affirming judgment (C. C. A. 1907), 157 F. 830. An indictment charging an interstate carrier with giving a concession whereby a shipper secured through transportation of property between two points at less than the lawful rate is not insufficient be- cause it does not aver the through rate, where it states the amount of the conces- sion and that it was given from the law- ful rate over a certain part of the route, which rate is also given. (C. C. A. 1907), Chicago. B. & Q. Ry. Co. '•. United States, 157 F. 830, judgment affirmed in Chicago, etc., R. Co. V. United States, 209 U. S. 90, 52 L. Ed. 698. 28 S. Ct. 439. 510-91CC. Instructions — Submitting is- sues, stating elements of offense, etc. — • Armour Packing Co. v. United States. 209 U. S. 56, 52 L. Ed. 681. 28 S. Ct. 428, af- firming judgment (1907), 153 F. 1, 82 C. C. A. 135; Chicago, etc., R. Co. v. United States. 209 U. S. 90, 52 U Ed. 698, 28 S. Ct. 439, affirming judgment (C. C. A. 1907). 157 F. 830. Instructions given in a prosecution for rebating under the Elkins law con- sidered, and held that, taken together, they fairly submitted the question of the intent of the defendant to do. through the acts of its agents authorized by it, the things denounced in the statute, and not to be open to the objection that they permitted the defendant to be con- victed for violating the Act of 1887 as amended in 1889. 24 Stat. 855. while the charge in the indictment was framed un- der the Elkins Act. and was intended to reach an offense committed after it had gone into effect. Xew York, etc., R. Co. V. United States, Xo. 2, 212 U. S. 500, 505, 53 U Ed. 624, 29 S. Ct. 309. 799 510-516 INTERSTATE, ETC., COMMERCE. Vol. \ll. Same — Weight of Evidence, Failure to Testify, to Produce Witness or Documents, etc. — Instructing on trial of a carrier for giving rebates to take into consideration the absence of a certain witness and' the nonproduction of books in which entries were made concerning the transactions in question is not prejudicial error, where the jurors are left to attach such weight to these cir- cumstances as they see fit, and are further instructed that there is no evidence that the defendant or those who controlled its corporate action destroyed or failed to produce any paper for which the government asked.'^^'''^ c. Attendance of Witnesses and Production of Evidence. — See ante, "Power to Investigate and Require Information," R^ K, 2, b, (4), a>^. et seq. d. Xatiire of Inquiry and Considerations Involved. — See ante, "Interests to Be Considered," IV, C, 4, c. e. Parties to Proceedings. — See ante, "Parties," I\', K, 2, b, (3), (c), y^-2i2i. f. Weight and Conclusiveness of Findings of Commission. — See ante, "Judi- cial Review of Findings and Orders of Commission," IV, K, 2, b, (6), et seq. V. Pure Food and Drugs Act. See, also, ante, "State Pure Food Laws," II, A, 2, d, (29). A. General Purpose and Intent of Act. — The object of the Food and Drugs Act is to prevent adulteration and misbranding, as therein defined. It prohibits the introduction into any state from any other state "of any article of food or drugs which is adulterated or misbranded, within the meaning of this act." The purpose is to keep such articles "out of the channels of interstate commerce, or, if they enter such commerce, to condemn them while being transported or when they have reached their destinations, provided they remain unloaded, unsold, or in original unbroken packages. "^*^^ B. Definitions and Scope of Act. — "To determine the scope of the act with respect to feeding stuffs we must examine its definitions of the adulteration and misbranding of food, the term 'food' including 'all articles used for food, drink, confectionery, or condiment by man or other animals, whether simple, mixed or compound' (§ 6). These definitions are found in §§ 7 and 8."^^'' "Misbranding" — "Misleading Statements" — Applicability to Drugs. — There is no foundation for the contention that the words "statement which shall be misleading in any particular," as used in § 8 of the statute, do not apply to drugs at all: that is to say, that the statements referred to are those "regarding such article," and that "such article" means article of food mentioned by the side of drugs at the beginning of the section. Aside from the reason of the thing, the beginning of the sentence makes such a reading impossible ; further- more a few lines further on in the same section the word "article" is made to expressly include "drugs. "i'"' Same — What Constitutes "Misbranding," etc. — False and misleading statements in the labels on a proprietar}- medicine as to its curative or remedial effects, but which do not import any statement concerning identity, are not "misbranding," within the meaning of the food and drugs act of June 30, 1906, c. 3915, § 8. 34 Stat. 771 (U. S. Comp. St. Supp. 1909, p. 1191),' which defines that term as applicable to all drugs or articles of food, the lockage or label 510-91dd. Same— Weight of evidence, 364. 31 S. Ct. 364. failure to testify, to produce witness or 516-16b. Definitions and scope — Term documents, etc. — New York, etc., R. Co. ■:•. "food" defined. — Savage v. Jones, 22.5 U. United States. 212 U. S. 481. .53 L. Ed. S. 501. 529. 56 L. Ed. 1182, 32 S. Ct. 715. 613, 59 S. Ct. 304, affirming (C. C), 146 516-16c. "Misbranding" — "Misleading Fed. 298. statement" — Applicability to drugs.— 516-16a. General purpose and intent of United States v. Johnson, 221 U. S. 488, act.— Savage i\ Jones, 225 U. S. 501, 56 L. 55 L. Ed. 823, 31 S. Ct. 627, affirming 177 Ed. 1182, 32 S. Ct. 715; Hipolite Egg Co. f. Fed. 313. United States, 220 U. S. 45, 55 L. Ed. 800 Vol. VII. INTERSTATE, ETC., COMMERCE. 516 of which shall bear any statement, design, or device regarding such article or the ingredients or substances contained therein which shall be false or misleading in any particular.^*"^ C. Enforcement of Act — 1. Proceedings in Rem — a. To What Shipments Applicable. — Property Not Intended for Sale. — Section 10 of the Food and Drugs Act of June 30, VJOb (34 Stat, at L. 768, chap. 3915, § 10, U. S. Comp. Stat. Supp. 1909, p. 1193), providing a remedy in rem after the manner of pro- ceedings in admiralty for the seizure and confiscation of impure and adulterated articles of food and drugs shipped in violation of the act, applies to an article of food which has been shipped, not for sale, but solely for use by the consignee as raw material in the manufacture of some other product. The words "for sale" are not to be interpolated into § 10 immediately after the word "trans- ported" in the clause "or having been transported, remains unloaded, unsold, or in original unbroken packages," etc. ; or if the statute is to be construed as if they were so interpolated, then all articles, compound or single, not intended for consumption by the producer, must be deemed designed for sale.^*^*^ b. When Shipment Becomes Subject to Seizure; When A'O Longer Subject to Seizure. — The object of the statute is to make the transportation of the pro- hibited articles illicit, to make the articles themselves outlaws and contraband of commerce, and in eiTecting this purpose, congress, under the authority of the commerce clause, had the power to authorize, as it has done, their seizure and confiscation so long as they remain in the original unbroken packages even after they have reached their final resting place in the warehouse of the consignee there to await being manufactured into some other product. In other words, it is the purpose of the statute, and within the constitutional power of congress, that the forbidden articles shall not be stealthily put into interstate commerce and be stealthily taken out again upon their arrival at destination and be given asylum in the general mass of property of the state ; and the rule applicable to legitimate articles, namely, that diey are out of the field of interstate commerce when they have arrived at destination and become commingled with the general mass of property in the state, has no application. The remedy so provided for reaching and condemning such articles is an appropriate means to the end sought to be accomplished and within that breadth of discretion which congress possesses in the execution of the powers conferred upon it by the constitution. ^^^^ c. Costs. — Costs in personam may be assessed against the claimant in the proceedings in rem under the Food and Drugs Act of June ZO, 1906, § 10, to confiscate adulterated articles of food, the subject of interstate commerce, even if the principles of the admiralty law are made applicable by the provision of 516-16d. Same — What constitutes "mis- tended solely for use by the consignee in branding," etc. — United States c-. Johnson, the bakery business. Hipolite Egg Co. v. 221 U. S. 488, 55 L. Ed. 823, 31 S. Ct. G27, United States, 220 U. S. 45, 55 L. Ed. 364, affirming 177 Fed. 313. 31 S. Ct. 364. 516-16e. Proceedings in rem — To what 516-16f. When shipment becomes sub- shipments applicable — Property not in- ject to seizure, when no longer subject to tended for sale. — Hinolite Egg Co. v. seizure. — Hipolite Egg Co. v. United United States, 220 U. S. 45, 55 L. Ed. 364, States, 220 U. S. 45, 55 L. Ed. 364, 31 S. 31 S. Ct. 364. Ct. 364. The remedy in rem in the federal courts Congress could lawfully enact the pro- provided by the Food and Drugs Act visions of the Food and Drugs Act of (Act June 30, 1906. c. 3915, § 10, 34 Stat. June 30, 1906, § 10, under which adulter- 771 [U. S. Comp. St. Supp. 1909, p. 1193]), ated articles of food, the subjects of inter- where any article of food that is adulter- state commerce, may be confiscated by a ated is being transported from one state proceeding in rem in the federal cotirts to another for sale, or, having been trans- after they have reached their destination, ported, remains unloaded, unsold, or in and there remain in the hands of the con- original unbroken packages may be in- signee in the original unbroken packages, voked where adulterated eggs have been Hipolite Egg Co. v. United States, 220 U. shipped into the state, not for sale, but in- S. 45, 55 L. Ed. 364, 31 S. Ct. 364. 12 U S Enc— Jl 801 516 INTERSTATE, ETC., COMMERCE. Vol. VII. that section that the proceedings shall conform as near as may be to the pro- ceedings in admiralty. ^^'^ 2. Criminal Prosecutions — a. Persons Liable to Prosecution. — Under the pure food law, not only a manufacturer, but any dealer shipping adulterated or misbranded goods in interstate commerce, is guilty of a misdemeanor. In aid of enforcement of the statute, it is made the duty of the department of agriculture to collect specimens of such articles so shipped, and the bureau of chemistry is '-equired to analyze them. But, even if the specimen, on analysis, is found to be adulterated, there is no requirement that the case should be turned over at once to the district attorney, for the reason that the "party from whom the sample was obtained" might be a dealer holding a guaranty from his vendor that the- articles were not adulterated. In such case the dealer is not liable to prosecution, but the guarantor (§9) is made "amenable to the prosecutions, fines, and pen- alties."i6h b. Preliininarv Analysis. Notice and Heorinq: Duty to Prosecute ; Independent Prosecutions. — Character of Notice and Hearing. — In aid of the enforce- ment of the statute, it is made the duty of the department of agriculture to collect specimens of such articles so shipped, and the bureau of chemistry is required to analyze them, and the act declares (§4) that when, on such examination by the board of chemistry, the article is found to be adulterated, "notice shall be given to the party from whom the sample was obtained. Any party so notified shall be given an opportunity to be heard." But the hearing is not judicial. There is no provision for compelling the presence of the party from whom the sample was received; if he voluntarily attends, he is not in jeopardy; and ad- verse finding is not binding against him ; and a decision in his favor is not an acquittal which prevents a subsequent hearing before the department, or a trial in court. ^^' Duty to Call upon District Attorney to Prosecute. — Even if the specimen, upon analysis, is found to be adulterated, there is no requirement that the case should be turned over at once to the district attorney for prosecution, since the "party from whom the sample was obtained" might be a dealer holding a guaranty from his vendor that the articles were not adulterated. In such case, it is the guarantor and not the dealer who is amenable to the "prosecutions, fines, and penalties" prescribed by the act.^*''^ Duty of District Attorney to Prosecute When Called upon. — The provi- sion as to the hearing is administrative, creating a condition where the district attorney is compelled to prosecute without delay when called upon to do so. AMien he receives the secretary's report, he is not to make another and independ- ent examination, but is bound to accept the finding of the department that the goods are adulterated or misbranded, and that the party from whom they had been obtained held no guaranty.^"'^ Independent Prosecution — Analysis, Notice and Hearing Not a Condi- tion Precedent. — But the fact that the statute compels the district attorney to act in one case does not deprive him of the power voluntarily to proceed in that and every other case under his general powers. The statute clearly shows that there was no intent to make such notice and hearing jurisdictional, and recog- 516-16g. Costs.— Hipolite Egg Co. v. U. S. 274, 56 L. Ed. 198. 32 S. Ct. 81. United States. 220 U. S. 45, 55 L. Ed. 364, 516-16J. Duty to call upon district at- 31 S. Ct. 364. torney to prosecute. — United States v. 516-16h. Persons liable to prosecutions. :\Iorgan, 222 TJ. S. 274, 56 L. Ed. 198, 32 S. — United States z: Morgan. 222 U. S. 274, Ct. sl. 36 L. Ed. 198. 32 S. Ct. 81. 516-16k. Duty of distfict attorney to 516-l6i. Preliminary analysis, notice prosecute when called upon. — United and hearing — Character of notice and States r. Morgan, 222 U. S. 274, 56 L. Ed. hearing. — United States v. Morgan, 222 198, 32 S. Ct. 81. 802 \'ol. \II. IXTOXICATIXG LIQUORS. 516-520 nizes that the district attorney may begin proceedings against a defendant who has not been given notice and an opportunity to be heard. ^"^^ INTERSTATE EXTRADITION.— See ante, Extradition, p. 571. INTERVENE.— See note a. INTERVENTION.— See the title Parties, vol. 9, p. 34, and references there given. In addition, see post, Parties. As to intervention by the United States to prevent further bloodshed and loss of life and property in Cuba, see ante, Ixterxatioxal Law, p. 686. INTESTATE. — See ante, Descent and Distributiox, p. 463; Executors AXD Admixistrators, p. 564; post. Wills. INTOXICATING LIQUORS. II. Regulation and Control, 803. A. By States, 803. 2. Power to Restrain and Prohibit, 803. B. United States Internal Revenue License, 803. C. Sales to Indians and in Indian Territories, 804. IV. License and Taxation, 804. A. In General, 804. VII. Enforcement of Liquor Laws, 804. CROSS REFERENCES. See the title Ixtoxicatixg Liquors, vol. 7, p. 518, and references there given. II. Regulation and Control. A. By States — 2. Power to Restraix axd Prohibit. — See note 10. B. United States Internal Revenue License. — See post, Revexue Laws. 516-161. Independent prosecutions — intestate the ris:lit "to intervene in the Analysis, notice and hearing not jurisdic- possession, administration, and judicial tional. — United States f. Alorgan, 222 U. liquidation of the estate of the deceased, S. 274, 56 L. Ed. 198, 32 S. Ct. 81. conformably to the laws of the country. The notice and preliminary hearing by for the benefit of the creditors and legal the department of agriculture which must heirs," the term intervene can only have be given under the Pure Food and Drugs reference to the universally recognized Act of June 30, 1906 (34 Stat, at L. 768, right of a consul to temporarily possess chap. 3915, U. S. Comp. Stat. Supp. 1909, the estate of citizens of his nation for the p. 1187), to the person from whom the purpose of protecting and conserving the sample was obtained, when, upon exami- rights of those interested before it comes nation by the board of chemistry, an arti- under the jurisdiction of the laws of the cle is found to be adulterated or mis- country for its administration. The right branded, is not a condition precedent to to intervene in administration and judicial the prosecution of a manufacturer, insti- liquidation is for the same general pur- tuted by the department of agriculture or pose, and presupposes an administration its agent, for shipping misbranded goods or judicial liquidation instituted otherwise in interstate commerce. United States v. than by the consul, who is authorized to Morgan, 222 U. S. 274, 56 L. Ed. 198, 32 S. intervene. Rocca v. Thompson, 223 U. S. Ct. 81, reversing judgment (C. C. 1910), 317, 56 L. Ed. 453, 32 S. Ct. 207. See ante, 181 Fed. 587. EXECUTORS AND ADMIXISTRA- 516-a. Intervention by consular officers TORS, p. 564. in matters regarding citizens dying intes- 520-10. Power to prohibit. — Phillips v. tate. — In the Argentine treaty of July 27, Mobile, 208 U. S. 472, 52 L. Ed. 578, 28 S. 1853 (10 Stat, at L. 1009), art. 9, con- Ct. 370. See post, "License and Taxa- ferring upon the consular officers of the tion," IV. respective courts as to citizens dying 803 522-524 INTOXICATING LIQUORS. Vol. VII. C. Sales to Indians and in Indian Territories.— See ante, Interstate AND Foreign Commerce, p. 689. A. In General. IV. License and Taxation. -See notes 26, 28. VII. Enforcement of Liquor Laws. Indictment and Information. — An information charging defendant with selHng Hquor without a permit from the probate judge need not aUege that he was not a registered pharmacist nor assistant pharmacist in the employ of a druggist having a permit. ^•^'^ Evidence. — Matters which are immaterial and at variance with the allega- tions of the indictment are not admissible in a trial for the violation of a state liquor lav/."'*'' Evidence, which, in connection with other facts and circumstances, tends to show a selling of liquor in violation of the law, is competent, and jus- tifies a charge to that effect."'^'' 522-26. Imposition of license tax. — The sale of liquors may be controlled and reg- ulated by the imposition of license taxes, by which those only who obtain licenses are permitted to engage in it. Phillips v. Mobile, 208 U. S. 472, 52 L. Ed. 578, 28 S. Ct. 370. "Taxation is frequently the very best and most practical means of regulating this kind of business. The higher the li- cense it is sometimes said, the better the regulation, as the effect of a high license is to keep out from the business those who are undesirable and to keep within reasonable limits the number of those who may engage in it. We regard the ques- tion in this case as covered in substance by prior decisions of this court." Phillips 7'. Mobile, 208 U. S. 472, 52 L. Ed. 578, 28 S. Ct. 370. See Vance v. Vandercook Co. No. 1, 170 U. S. 438, 446, 42 L. Ed. 1100, 18 S. Ct. 674; Reymann Brewing Co. v. Bris- ter, 179 U. S. 445, 45 L. Ed. 269, 21 S. Ct. 201; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 25, 49 L. Ed. 925, 25 S. Ct. 552; Delamater v. South Dakota, 205 U. S. 93, 51 L. Ed. 724, 27 S. Ct. 447. A license tax imposed under municipal ordinance upon those engaged in selling beer in the city by the Jaarrel, half barrel, or quarter barrel must be regarded, even when applied to interstate transactions in the original packages, as an exercise of the police power permitted l>y the Wilson Act of August 8, 1890 (26 Stat, at L. 313. chap. 728, U. S. Comp. Stat. 1901, p. 3177), subjecting intoxicating liquors arriving in a state to the laws of such state enacted in the exercise of its police powers, al- though the city may derive more or less revenue from the ordinance in question. Phillips V. Mobile, 208 U. S. 472, 52 L. Ed. 578, 28 S. Ct. 370. See post, LICENSES. 523-28. Vesting power in probate judge to grant permits. — The law in relation to intoxicating liquors, vesting in probate judges of the respective counties jurisdic- tion over the subject of granting permits to sell such liquors for medical, mechan- ical, and scientific purposes, is not a vio- lation of the fourteeiith amendment to the constitution of the United States. Judg- ment, State v. Durein (1905), 80 P. 987, 70 Kan. 1, affirmed. Durein v. Kansas, 208 U. S. 613, 52 L. Ed. 645, 28 S. Ct. 567. 524-36a. Indictment or information. — Durein v.- Kansas, 208 U. S. 613, 52 L. Ed. 045, 28 S. Ct. 567, affirming 40 Kan. 1, 80 P. 98. 524-36b. Evidence. — Evidence that the express company knew that a C. O. D. in- terstate shipment of intoxicating liquors was not ordered by the consignee is iin- material on a criminal prosecution of the express company for violating a state lo- cal option law, where the indictment avers that the express company was engaged in the business of a common carrier of pack- ages, and that the shipment and delivery were made and done in the usual course of its business. Adams Exp. Co. v. Ken- tucky, 206 U. S. 129, 51 L. Ed. 987, 27 S. Ct. 606; Id., 103 S. W. 353, 31 Ky. Law Rep. 811-813, reversing judgment (1905), 87 S. W. 1111, 27 Ky. Law Rep. 1096; Adams Exp. Co. %'. Kentucky, 206 U. S. 138, 51 L. Ed. 992, 27 S. Ct. 608, reversing judgment (1906), 92 S. W. 932, 29 Ky. Law Rep. 224, 5 L. R. A. (N. S.) 630; American Exp. Co. V. Kentucky, 206 U. S. 139, 51 L. Ed. 993, 27 S. Ct. 609, reversing judgment (1906), 97 S. W. 807, 30 Ky. Law Rep. 207. 524-36C. Evidence competent. — Where there was evidence that in June, 1902, one accused of selling liquor illegall}' told v/it- nesses that he was proprietor of a saloon then running, and that he intended to keep right on running the saloon, and sell- ing beer, and that January 10, 1903, he was still a keeper of the saloon, justifies an instruction that the testimony was compe- tent to be considered with other facts and circumstances for the purpose of deter- mining whether the place described was 804 A-ol. \'II. J 01 XT STOCK CO MP AX IBS. 524 Conduct of Trial in General. — In a prosecution for selling liquor contrary to law, an election to rely on a transaction occurring on a stated day is not de- fective because the witnesses are not named, when there is no evidence of any other transaction on the same day, nor because it does not designate a sale to a particular individual, out of a dozen men who were drinking, the witnesses being unable to identify the precise person or persons who furnished the money observed to pass.^'^'^ INVENTION.— See post, Patents. INVENTORY. — See ante, Assignments for the Benefit of Creditors, p. 154; Bankruptcy, p. 168; Executors and Administrators, p. 564. INVOLVED.— See note 3. IRREPARABLE INJURY.— See ante. Injunctions, p. 657. IRRIGATION. — See ante, Boundaries, p. 206; post. Public Lands; Nav- igable Wathks; Waters and ^^'ATERCouRSEs. IRRIGATION CORPORATION.— See post, \\"aters and \\ atercourses. ISLANDS. — See Islands, vol. 7, p. 525. In addition, see ante, Boundaries, p. 206; International Law, p. 686 r post, Public Lands. ISSUE.— See Issue, vol. 7, p. 525. ISSUES TO JURY.— See the title Issues to Jury, vol. 7, p. 526, and refer- ences there given. JEOPARDY. — See ante. Autrefois, Acquit and Convict, p. 161. JOINDER. — See ante, Actions, p. 7; Appeal and Error, p. 34; Demurrers, p. 461 : Indictment?. Informations, Presentments and Complaints, p. 652. JOINDER OF PARTIES.— See ante. Courts, p. 398; post, Parties; Re- AiovAL OF Causes. JOINT STOCK COMPANIES.— See the title Joint Stock Companies, vol. 7, p. 531. In addition, see post. Perpetuities. a common nuisance by reason of beins? a ment of the supreme court of the Philip- place where intoxicating liquors were pine Islands where any treaty of the kept for sale in violation of law. Jtidg- United States "is involved." The treaty ment, State r. Durein (1905), 80 P. 987, 70 of Paris Vv^as necessarily involved in a Kan. 1, affirmed. Durein z\ Kansas, 208 case where neither the lower court nor U. S. 613. 52 L. Ed. 645, 28 S. Ct. 567. the supreme court could determine the 524-36d. Conduct of trial in general. — continuity of the municipality of ^lanila (1904) State V. Durein, 78 P. 152, 70 Kan. nor the liability of the city as it now ex- 1, 15 L. R. A. (X. S.) 90S, judgment af- ists for the obligation of the old .city, firmed on rehearing (1905), 80 P. 987. 70 without considering the effect of the Kan. 13, and Durein z'. Kansas, 208 U. S. change of sovereignty' resulting from that 613, 52 L. Ed. 645, 28 S. Ct. 567. treaty. Vilas v. Manila. 220 U. S. 345, 524-3. Involved.— Under § 10 of the 352, 55 L. Ed. 491, 31 S. Ct. 416. See ante, Philippine Organic Act of July I, 1902, the APPEAL AND ERROR; COURTS, p. federal supreme court is given jurisdic- 398. tion to review any final decree or judg- 805 535-537 JUDGES. Vol. VII. JOINT TENANTS AND TENANTS !N COMMON. in. Rights, Duties and Liabilities, 806. D. Purchase of Outstanding Claim or Title. 806. IV. Pleading and Practice, 806. A. Suits and Actions between Cotenants, 806. 4. Limitations, 806. CROSS REFERENCES. See the title Joint Tenants and Tenants in Common, vol. 7. p. SZ?), and references there given. III. Rights, Duties and Liabilities. D. Purchase of Outstanding Claim or Title. — See note 11. Limitation of Rule — Purchase of Common Property at Public Sale. — A tenant in common may purchase the common property at public sale under a powder in a trust deed, if he takes no unfair advantage of his co-owners,^^^ and an agreement between some of them to buy in jointly the common property at such public sale is not a fraud upon the rights of the remaining cotenants, if there is no resort to any artifice to deter others from bidding. i^'' IV. Pleading and Practice. A. Suits and Actions between Cotenants — 1. Limitations. — A delay of four years, during which there has been a large appreciation in the value of the property, is fatal to any right to require a tenant in common to give his cotenants the benefit of his purchase of the common property at a public sale under a power in a trust deed.^-^ JOURNAL ENTRIES.— See post. Statutes. JUDGES. — See the title Judges, vol. 7, p. 538, and references there given. In addition, see post, Mandamus. 535-11. Purchase of outstanding claim 535-llb. Agreement to buy jointly. — or title. — Starkweather v. Jenner, 216 U. Starkweather v. Jenner, 216 U. S. 524, 54 S. 524, 528, 54 L. Ed. 602, 30 S. Ct. 382. L. Hd. 602, 30 S. Ct. 382. 535-lla. Purchase of common property 537-22a. Limitations. — Decree (1906), at public sale.— Decree (1906), 27 App. D. 27 App. D. C. 348, affirmed. Starkweather C. 348, affirmed. Starkweather r. Jenner, t'. Jenner, 216 U. S. 524, 54 L. Ed. 602, 30 216 U. S. 524, 54 L. Ed. 602, 30 S. Ct. 382. S. Ct. 382. 806 Vol. MI. JUDGMEXTS AXD DECREES. JUDGMENTS AND DECREES. VI. Amending-, Correcting, Modifying, Opening or Vacating Judg- ments and Decrees, 808. A. General Rules as to Control of Courts over Judgments and Decrees, 808. 2. After Term. 808. a. General Rule. 808. XII. Collateral Attack on Judgments or Decrees, 808. B. Rule Construed and Applied, 808. 4. Consideration of Particular Matters as Grounds for Collateral At- tack, 808. b. Errors and Irregularities, 808. (1) General Rule. 808. XIII. Equitable Relief against Judgments, 808. B. When Proper, 808. 1. General Principles Determining Right to Relief, 808. 2. Application of Principles to Particular Facts and Circumstances, a. Defense Xot Available at Law, 808. (2) Newly-Discovered Evidence, 808. XIV. Judgment Liens, 808. D. To What Property Lien Attaches. 808. 1. Nature of Property Subject to Lien, 808. a. Realty and Interests Therein, 808. CD In General, 808. F. Inception, Duration and Termination of Lien. 808. 3. Termination of Lien, 808. a. Expiration of Statutory Period or Failure to Issue Execution within Proper Time, 808. rn In General. 808. G. Priorities, 809. 3. Between Judgment Liens and Other Liens, etc., 809. a. Subsequent Adverse Interests and Encumbrances, 809. XVI. Judgments by Default, and Decrees Pro Confess©, 809. B. Decrees Pro Confesso, 809. 3. Grounds, 809. b. Failure to Plead. Demur or Answer within Prescribed Time, 809. 6. Hearing and Determination, 809. b. Procedure on Hearing. 809. (T) General Principles Controlling Rendition of Decrees Pro Confesso. 809. 8. Opening and Setting Aside Decree, 809. b. Grounds, 809. CROSS REFERENCES. See the title Judgments and Decrees, vol. 7, p. 544, and references there given. 807 581-649 JUDGMENTS AXD DECREES. Vol. VII. VI. Amending, Correcting, Modifying, Opening or Vacating Judgments and Decrees. A. General Rules as to Control of Courts over Judgments and Decrees — 2. After Term — a. General Rule. — See note 44. XII. Collateral Attack on Judgments or Decrees. B. Rule Construed and Applied — 4. Consideration of Particular Mat- ters AS Grounds for Collaterae Attack — b. Errors and Irregularities — (1) General Rule. — See note 80. XIII. Equitable Relief against Judgments. B. When Proper— 1. General Principles Determining Right to Relief. — See note 95. 2. Application of Principles to Particular Facts and Circumstances — ■ a. Defenses Not Available at Law — (2) Neivly-Discovcred Evidence. — See note 4. XIV. Judgment Liens. D. To What Property Lien Attaches — 1. Nature of Property Subject to Lien — a. Realty and Interests Therein — ( 1 ) In General. — See note 50. F. Inception, Duration and Termination of Lien — 3. Termination of Li£N — a Expiration of Statutory Period or Failure to Issue E.vecution withvii Proper Time — (T) hi General. — See note 95. 581-44. General rule as to loss of con- trol over judgments, decrees, etc., after end of term. — In re Metropolitan Trust Co., 318 U. S. 312. 54 L. Ed. 1051, 31 S. Ct. 18. A federal circuit court which, after de- nying a motion to remand the cause to the state court, whence it had been removed as presenting a separable controversy, sustains the demurrer of one of the de- fendants, and decrees the dismissal of the bill as to it, can not vacate such decree after the term, on the theory that its final decree dismissing the bill as to the other defendants having been reversed on an appeal to which such defendant was not a part5% with directions to remand the cause to the state court, the decision sought to be vacated was a nullity, as rendered without jurisdiction. In re Met- ropolitan Trust Co., 218 U. S. 312, 54 L. Ed. 1051, 31 S. Ct. 18. 625-80. Whether or not the United States provisional court for Porto Rico lost jurisdiction of a cause and of the par- ties because, in the course of its proceed- ings, it disregarded certain provisions of the Code of Civil Procedure which were binding upon it, is a question which can not be raised by collateral attack on its iudgment. Santiago z\ Xogueras, 214 U. S. 2ViO, 53 L. Ed. 989, 29 S. Ct. 608. A decree of the supreme court of the District of Columbia for the sale of an in- fant's real property for purposes of rein- vestment, made with jurisdiction over the res and of the parties, is not open to col- lateral attack, even though the court erred in holding that a case had been made. either under its inherent power as a court of equity, or its statutory authority. United States v. Morse, 218 U. S. 493, 54 L. Ed. 1123, 31 S. Ct. 37. A judgment of the supreme court of the District of Columbia conhrming a special assessment for benefits resulting from a street extension can not be attacked col- laterally because that court, upon an ob- jection challenging the assessment as ex- cessive, did not call the second jury pro- vided for by D. C. Rev. Stat.. § 263, since this was, at most, an error which can only be available m appropriate proceedings in error. Briscoe r. Rudolph. 221 U. S. 547, 55 L. Ed. S4S. 31 S. Ct. 679. 629-95. Statement of general principles determining right to relief. — Pickford v. Talbott, 225 U. S. 651, 56 L. Ed. 1240, 32 S. Ct. 787. 631-4. Facts must not have been dis- coverable by due diligence and inquiry, — Pickford v. Talb'ott, 225 U. S. 651, 56 L. Ed. 1240, 32 S. Ct. 787. See post, LIBEL AXD SLANDER. 642-50. Unpatented lode mining claims are "real property," and as such are sub- ject to the lien of a judgment recovered against their owner when docketed pur- suant to Laws Ariz. 1891. Act Xo. 50, § 4; the term being defined by a territory stat- ute in force when the judgment in ques- tion was rendered and docketed as coex- tensive with lands, tenements, and heredit- aments. Judgment (Ariz. 1906), 86 P. 6, affirmed. Bradford r. Morrison, 212 U. S. 389. 53 L. Ed. 564, 29 S. Ct. 349. 649-95. Estoppel to assert dormancy where delay caused by debtor. — A munic- 808 Vol. YU. JUDGMENTS AXD DECREES. 651-667 G. Priorities — 3. Between Judgment Liens and Other Liens, etc. — ■ a. Subsequent Adverse Interests and Encumbrances. — See note 12. XVI. Judgments by Default, and Decrees Pro Confess©. B. Decrees Pro Confesso — 3. Grounds — b. Failure to Plead, Demur or Ansicer zvithin Prescribed Time. — See note 75. 6. Hearing and Determination — b. Procedure on Hearing — (1) General Principles Controlling Rendition of Decrees Pro Confesso. — See note 84. 8. Opening and Setting Aside Decree — b. Grounds. — See note 1. ipality can not assert the dormancy, un- der 2 Wilson's Rev. & Ann. St. Okl. 1903, § 4635, of certain judgments against it for failure to issue execution thereon within five years, where, during most of that period, the municipality was carrying out its contract arrangement with its judg- ment creditors to paj' such judgments in the order of their rendition, out of the judgment fund, the effect of which was to prevent the judgment creditors from tak- ing such steps as the law permitted to collect their judgments by execution or mandamus. Judgment (1906), 87 P. 292, 17 Okl. 162, reversed. Beadles z'. Smyser, 209 U. S. 393, 52 L. Ed. 849. 28 S. Ct. 522. 651-12. Transfers of property subject to lien. — The lien of a judgment on an in- terest in an unpatented lode mining claim is not destroyed by a subsequent convey- ance thereof. Judgment (Ariz. 1906) 86 P. 6. affirmed. Bradford t. Morrison, 212 U. S. 389, 53 L. Ed. 564, 29 S. Ct. 349. 663-75. Failure to answer supplemental bill. — A supplemental bill filed in open court and served on defendants" attorney on the same day on which it was filed may be taken for confessed in the absence of any appearance or pleading by defendants for more than the 20 days within whicH, under Comp. Laws X. M. 1897, tit. 33, §§ 2685-3377, every pleading must be liled and served after service of the pleading to which it is an answer, demurrer, or reply. Decree, United States v. Rio Grande Dam & Irrigation Co. (l906), 85 P. 393, 13 N. M. 386. affirmed. Rio Grande, etc., Irrig. Co. v. United States, 215 U. S. 266, 54 L. Ed. 190, 30 S. Ct. 97. 665-84. To be made according to what is proper to be decreed, etc. — "The final de- cree following a pro confesso order is only . such a decree as would be authorized by the state of the pleadings when the order was entered. Frow i'. De La Vega, 15 Wall. 552. 21 L. Ed. 60; Dan. Ch. PI. & Pr. 5th Ed. pp. 525-528, and notes; Simmonds V. Palles, 2 Jones & L. 489, 8 Ir. Eq. Rep. 335; Hardwick v. Bassett, 25 Mich. 149; McDonald v. Mobile L. Ins. Co., 6 Ala. 468. If the bill was fatally defective upon its face, showing that the court had no jurisdiction, it was error to allow a pro confesso, and upon the court's attention being called to it. it should have vacated the order and allowed the defaulting de- fendant to defend. Xelson v. Eaton, 13 C. C. A. 523, 27 U. S. App. 677, 66 Fed. 376; Blythe z: Hinckley, 84 Fed. 228, 244; El- dred f. American Palace Car Co., 103 Fed. 209." Cuebas z: Cuebas, 223 U. S. 376, 56 L. Ed. 476, 32 S. Ct. 277. Tlie subsequent amendment of a bill to foreclose a mortgage, taken pro confesso, so as to create a jurisdiction which had not theretofore existed, by dismissing the bill as to all but one of the defaulting de- fendants, and by striking out the pra3^er that any and every claim, interest, or en- cumbrance be forever barred and cut ofif, will not justify a final decree against the remaining defendant as' of a date before his death, based upon the order pro con- fesso, but upon such amendment the court should set aside the default and give time to defend. Cuebas v. Cuebas, 223 U. S. 376, 56 L. Ed. 476, 32 S. Ct. 277. 667-1. Where decree taken without ac- tual service o£ process on defendant. — An absolute right to appear in and defend within a year after final judgment a suit to enforce a lien or to remove a cloud on title to property within the district was given to absent defendants whenever the jurisdiction of the federal circuit court over them rested upon publication, even though they may in fact have had knowl- edge of the suit, by Act March 3, 1875, c. 137, § 8, IS Stat. 472 (U. S. Comp. 1901, p. 513) conferring such right upon all such defendants who have not been "actually personally notified as above provided." the previous provisions of the section call- ing for service on the party outside of the district of an order of the court directed to him, and requiring him to appear and defend within a time stated, or, if not practicable, for notice by publication. Fernandez :•. Perez. 220 U. S. 224. 55 L. Ed. 443. 31 S. Ct. 412: Blanco z\ Hubbard, 220 U. S. 233, 55 L. Ed. 447. 31 S. Ct. 415. No other terms than the paj-ment of costs can be imposed bj' the court in open- ing a decree to permit absent defendants served only by publication to appear in and defend a suit to enforce a lien or re- move a cloud on the title to property within the district, pursuant to Act ^larch 3, 1875, c. 137, § 8, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513), providing that in such cases the court shall make an order set- ting aside the judgment, and permitting 809 670-676 JUDICIAL NOTICE. Vol. VII. JUDICIAL ADMISSIONS.— See ante, Estoppel, p. 553. JUDICIAL, LEGISLATIVE AND MINISTERIAL.— See note 1. JUDICIAL NOTICE. II. Matters of Common Knowledge, 810. A. In General, 810. F. Usages and Customs, 810. IV. Historical Facts, 811. F. Ceded Territory, 811. VI. Public Officers, Records, and Documents, 81 L B. Public Records, 811. 2. Judicial Records, 811. VIII. Laws and Statutes, 811. D. Acts of Congress, 811. J. Laws of Prior Governments, 811. CROSS REFERENCES. See the title J^udicial Notice, vol. 7, p. 672, and references there given. II. Matters of Common Knowledge. A. In General. — See note 10. F. Usages and Customs. — A court may judicially notice the existence in the community of a general custom to use coal oil in kindling fires. ^^^ While the such defendants to plead therein on pay- ment of such costs as the court deems just. Fernandez v. Perez, 220 U. S- 224, 55 L. Ed. 443, 31 S. Ct. 412; Blanco v. Hub- tard, 220 U. S. 233, 55 L. Ed. 447, 31 S. Ct. 415. 670-1. "Judicial power, says Mr. Justice Miller in his work on the constitution, 'is the power ot a court to decide and pro- nounce a judgment and carry it into ef- fect between persons and parties who bring a case before it for decision.' Mil- ler on the Constitution, 314." Muskrat v. United States, 219 U. S. 346, 356, 55 L. Ed. 246, 31 S. Ct. 250. A judicial power is the right to deter- mine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. Muskrat v. United States, 219 U. S. 346, 361, 55 L. Ed. 246, 31 S. Ct. 250. Judicial and legislative act distinguished. — A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws sup- posed already to exist. That is its pur- pose and end. Legislation on the other hand looks to the future and changes ex- isting conditions by making a new rule to be applied thereafter to all or some part ■of those subject to its power. The estab- lishment of a rate is the making of a rule for the future, and therefore is an act leg- islative, not judicial, in kind. Proceed- ings legislative in nature are not proceed- ings in a court within the meaning of Rev. Stat., § 720, prohibiting federal courts from enjoining proceedings in state courts, no matter what may be the general or dominant character of the body in which they may take place. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, 53 L. Ed. 150, 29 S. Ct. 67. "The function of rate making is purely legislative in its character, and this is true, whether it is exercised directly by the legislature itself or by some subordinate or administrative body, to whom the power of fixing rates in detail has been delegated. The completed act derives its authority from the legislature and must be regarded as an exercise of the legisla- tive power." Moyer v. Peabody, 212 U. S. 78, 84, 53 L. Ed. 410, 29 S. Ct. 235. Performance of ministerial duties. — As to compelling performance of a mere min- isterial duty, see post, MANDAMUS. 675-10. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 79, 55 L. Ed. 369, 31 S. Ct. 337. 676-18a. Use of coal oil. — Judgment (1907), 89 P. 212, 18 Okl. 107, affirmed. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. 810 Vol. VII. JUDICIAL RECORDS. 676-698 supreme court may take judicial notice of the fact that black powder is a subject of interstate commerce.^'*'' it will not take notice of the details of a particular transaction relating thereto. ^^'^ IV. Historical Facts. F. Ceded Territory. — See note 85. VI. Public Officers, Records, and Documents. B. Public Records — 2. Judicial, Re:cords. — Decision of Interstate Com- merce Court.- — Judicial notice of a decision of the interstate commerce com- mission, authoritatively published in its reports, need not be taken by a state court because of the provision of the Act of Feb. 4, 1887, c. 104, § 14, 24 Stat. 384 (U. S. Comp. St. 1901, p. 3164), making the authorized publications of the commission competent evidence without further proof or authentication, where such decision was not mentioned in the pleadings nor in the agreed statement of facts, since the purpose of the statute is to relieve litigants from the inconven- ience and expense of obtaining certified copies of the decisions, and it does not ■otherwise change the rules of evidence. ^''^ VIII. Laws and Statutes. D. Acts of Congress.— See note 45. J. Laws of Prior Governments. — The courts will take judicial notice of the Spanish law as far as it affects the insular possessions of the United States. It is pro tanto no longer foreign law.^^^ JUDICIAL RECORDS.— See ante, Estoppel, p. 553; post, Records. 676-18b. Articles of interstate com- inq- judgment (1908), 63 S. E. 32.3, 64 W. merce.— Williams v. Walsh, 222 U. S. 415, Va. 406. 421, 56 L. Ed. 253, 32 S. Ct. 137. 692-45. Federal Incorporation Act.— A 676-18C. Details of particular transac- federal court will notice tliat a corporate tion. — W^illiams z'. Walsh, 222 U. S. 415, defendant was incorporated by an Act of 421, 56 L- Ed. 253, 32 S. Ct. 137. Congress, even without any averment of 684-85. The history of Porto Rico and the fact in the petition. In re Dunn, 212 its legal and political institutions, up to U. S. 374, 53 L. Ed. 558, 29 S. Ct. 299. the time of its annexation to the United 698-81a. Law of prior government affect States, are matters which must be recog- insular possession. — Judicial notice is nizcd by the federal suoreme court. Ponce taken l)y the federal supreme court that V. Roman Catholic Apostolic Church, 210 the distinctions between law and equity, U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. in a technical sense, do not obtain in the 688-16a. Decision of commerce court. — local law of Porto Rico. Garzot v. Rubio, Robinson v. Baltimore, etc., R. Co., 222 U. 209 U. S. 283, 52 L. Ed. 794, 28 S. Ct. 548. S. 506, 56 L. Ed. 288, 32 S. Ct. 114, affirm- 811 720-739 JURISDICTION. Vol. VII. JUDICIAL SALES. XVI. Return of Officer, 812. AYz. Sufficiency of Return, 812. XVIII. Setting Sale Aside, 812. F. Grounds for Setting Aside, 812. 9. Inadequacy of Price, 812. CROSS REFERENCES. See the title Judicial Sales, vol. 7, p. 703, and references there given. XVI. Return of Officer. A|. Sufficiency of Return. — The question of the sufficiency of the officer's return of a description of the land is a question of general law ; no act of con- gress attempts to define what is a sufficient description or to make any rule by which a purchaser of the marshal's sale can take possession of land other than as described in the process.-*^ XVIII. Setting Sale Aside. F. Grounds for Setting Aside — 9. Inadequacy of Price. — See note 93. JUDICIARY ACT.— See ante. Appeal and Error, p. 34; Courts, p. 398; post, Removal of Causes. JURISDICTION. I. Definitions and Essentials, 812. A. Definitions, 812. C. Question of Substantive Law or Jurisdiction, 813. CROSS R^F^R^XCES. See the title Jurisdiction, vol. 7, p. 738, and references there given. See ante, Appeal and Error, p. 34; Courts, p. 398; Equity, p. 550; Injunctions, p. 657; and the particular titles throughout this supplement. In addition, see post, Venue. I. Definitions and Essentials. A. Definitions. — See note 1. In legal phraseology the power of the court to hear and decide a cause is termed "jurisdiction."^^ 720-28a. Sufficiency of return.— The Act obtained. Van Gieson v. Maile, 213 U. S. of February IG, 1839, chap. 27, § 4, refer- 338, 53 L. Ed. 821, 29 S. Ct. 492. ring to the time and place for making judi- 739-1. Definition.— Central R. Co. v. Jer- cial sales in Mississippi does not define sey City, 209 U. S. 473, 52 L. Ed. 896, 28 S. a question and valid description by the Ct. 592. See ante, BOUNDARIES, p. 206. marshal, and if the sale, even if irregular, 739-2a. Jurisdiction is power to hear and the federal court has no jurisdiction. decide cause. — Davis v. Cleveland, etc., R. Rogers v. Jones, 214 U. S. 196, 53 L. Ed. Co., 217 U. S. 157, 172, 54 L. Ed. 708, 30 965, 29 S. Ct. 635. S. Ct. 463. See, also, ante, COURTS, p. 727-93. Inadequacy of price. — A sale in 398. defiance of a restraining order by the Jurisdiction is authority to hear and de- court rendering judgment will be set aside, termine. Hine v. Morse, 218 U. S. 493, where its existence, whether valid or not, 508, 54 L. Ed. 1123, 31 S. Ct. 37. was cause of the very inadequate price It is none the less a jurisdictional matter 812 Vol. VII. JURY. 740 C. Question of Substantive Law or Jurisdiction. — Whether a given stat- ute is intended simply to establish a rule of substantive law, and thus to define the duty of the court, or is meant to limit its power, is a question of construc- tion and common sense. W'hen it afifects a court of general jurisdiction, and deals with a matter upon which the court must pass, the courts are slow to read ambiguous words as meaning to leave the judgment open to dispute, or as in- tended to do more than to fix the rule by which the court should decide."^ JURISDICTIONAL FACTS.— See ante, Appeal and Error, p. 34; Courts, p. 398. JUROR. — See ante. Grand Jury, p. 609; post. Jury. JURY. I. Right to Trial by Jury, 813. D. In What Proceedings a Jury May Be Demanded, 813. 1. Civil Proceedings, 813. a. Actions at Law, 813. (5) What Proceedings Are "Suits at Common Law," within Meaning of Federal Constitutio-n, 813. fa) In General, 814. 2. Criminal Proceedings, 814. . a. Constitutional Guaranties, 814. (1) Constitution of the United States, 814. b. What Offenses Are Required to Be Tried by Jury, 814. II. Qualifications of Jurors, 814. C. Impartiality, 814. VI. Challenges, 814. C. Challenge for Cause, 814. 6. Trial of Challenges, 814. b. Challenge on Ground That Juror Has Formed an Opinion, 814. IX. Custody and Conduct of Jury, 815. D. Reading Newspapers, 815. CROSS REFERENCES. See the title Jury, vol. 7. p. 748, and references there given. In addition, see ante, Appeal, and Error, p. 34; post, Res Adjudicata ; Special Assessments. I. Right to Trial by Jury. D. In What Proceedings a Jury May Be Demanded— 1. Civil Proceed- ings — a. Actions at Laze — ( 5 ) Uliat Proceedings Are "Suits at Common Latv," in the case of judgment and garnishment the title LIMITATION OF ACTIONS of the property of a nonresident because AND ADVERSE POSSESSION, p. 921. the power of the court to proceed to trial The laws of Mississippi making dealing depends in the absence of the defendant in futures a misdemeanor, and providing upon the lawful seizure of his property. tliat contracts of that sort, made without Davis 7'. Cleveland, etc., R-. Co., 217 U. S. intent to deliver the commodity or pay the 1.57, 172, 54 L. Ed. 708. 30 S. Ct. 463. price, "shall not be enforced by any 740-7a. Question of substantive law or court," does not deprive the Mississippi jurisdiction. — Fauntlcroy v. Lum, 210 U. courts of jurisdiction. Fauntlerov v. Lum, S. 230, .52 L. Ed. 1039, 28 S. Ct. 641. See 210 U. S. 230, 52 L- Ed. 1039, 28 S. Ct. 641. 813 754-773 JURY. Yo\. VIL zvithin Meaning of Federal Constitution — (a) In General. — See note 28. 2. Criminal, Proceedings — a. Constitutional Guaranties — (1) Constitution of the United States. — In the absence of congressional legislation to that end^ there is no right to demand trial by jury in criminal cases in the Philippine Islands. *5<5a b. What Offenses Are Required to Be Tried by Jury. — Where the violation of a statute does not constitute a crime, but merely entails the infliction of a penalty, enforcible in some cases by purely administrative action and in others by a civil suit, one against whom the penalty is sought to be enforced is not entitled to a trial by jury.'''^^ II. Qualifications of Jurors. C. Impartiality. — At common law one is not a competent juror in a case if he is master, servant, steward, counselor, or attorney of either party,^'''^ and un- der this rule an employee of the government can not sit as a juror in a criminal proceeding instituted by the government. ^"^ VI. Challenges. C. Challenge for Cause — 6. Trial of Chai,le:ngss — b. Challenge on Ground That Juror Has Formed an Opinion. — See note 8. 754-28. What proceedings are suits at common law within meaning of federal constitution. — The seventh amendment of the constitution, securing the right to trial by jury in suits at common law, extends to rights and remedies peculiarly legal in their nature, and such as it was proper to extend in courts of law by the appropri- ate modes and proceedings of such courts. In re Wood, 210 U. S. 246, 52 L. Ed. 1046, 28 S. Ct. 621. The right secured by this provision of the constitution is not infringed by the proceeding authorized by Bankr. Act July 1, 1898, c. 541, § 60d, 30 Stat. 562 (U. S. Comp. St. 1901, p. 3446), to re-examine and reduce payments and transfers of prop- erty to counsel, made by a bankrupt, in contemplation of bankruptcy proceedings, for services to be rendered. In re Wood, 210 U. S. 246, 52 L. Ed. 1046, 28 S. Ct. 621. 759-66a. No right to demand trial by jury in Philippine Islands. — Dowdell v. United States, 221 U. S. 325, 55 L. Ed. 753, 31 S. Ct. 590. 760-74a. Penal actions in which there is no right to jury. — Oceanic Steam Nav. Co. V. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671. Empowering the secretary of commerce and labor to exact a money penalty for bringing into the United States an alien afflicted with a loathsome or dangerous contagious disease, in violation of the Act of March 3, 1903, § 9, when the official medical examination at the port of arrival shows that the alien was suffering from the disease at the time of embarkation, the existence of which might have been detected by a competent medical examina- tion then made as the statute requires, does not render such statute open to the objection that it defines a criminal ofifense, and authorizes a purely administrative of- ficer to determine whether the defined crime has been committed, and, if so, to inflict a punishment. Oceanic Steam Nav. Co. V. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671. 765-27a. Master, servant, steward, coun- selor or attorney of either party excluded. —Crawford v. United States, 212 U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260, reversing 30 App. D. C. 1. 765-27b. Crawford v. United States, 212 U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260, re- versing 30 App. D. C. 1. A druggist, whose store is a subpostal station, and who is paid by the govern- ment for taking charge of the substa- tion, is disqualified by reason of his relation as employee of the government from acting as juror in a prosecution for conspiracy to defraud the United States. Judgment (1907), 30 App. D. C. 1, re- versed. Crawford v. United States, 212 U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260. The qualifications prescribed for jurors in the District of Columbia by Code of Laws 1901, § 215, do not furnish the only test of the juror's competency, but leave in force the common-law rule under which an employee of the government can not sit as a juror in a criminal proceeding in- stituted by the government. Crawford v. United States, 212 U. S. 183, 53 L. Ed. 465, 29 S. Ct. 260. 773-8. The trial court's refusal to sustain a challenge to a juror for cause will not be disturbed by an appellate court, where it appears irom the examination of such juror that h-e had not talked with any one who purported to know about the case of his own knowledge, but that he had taken newspaper statements for facts, that he had no opinion other than that derived from the newspapers, and that evidence would change it very easily, al- 814 Vol. VII. KXOWLEDGE. nS-779 IX. Custody and Conduct of Jury. D. Reading Newspapers. — The trial court does not abuse its discretion in refusing to grant a motion for a new trial in a capital case because the jury, being allowed to separate, read the local daily newspapers with articles about the case, while the trial was in progress.'*''' The right to a new trial on the ground that the jury was improperly influenced by reading the newspapers may be lost by v/aiver.^'*' JUST.— See note 2. JUSTA PRESCRIPTION.— See post. Prescription. JUSTICE, DEPARTMENT OF.— See post, Uxited States. JUSTICES OF THE PEACE.— See the title Justices oe the Peace, vol. 7, p. 780. and references there given. In addition, see ante. Extradition, p. 571. JUSTIFIABLE HOMICIDE.— See ante. Homicide, p. 619. JUSTO TITULO.— See post. Prescription; Titulo. KNOWLEDGE.— See ante, Estoppel, p. 553; E\^DENCE. p. 558: Fraud AND Deceit, p. 597: post. Limitation oe Actions and Adverse Possession. thoiitrh it would take some evidence to remove it, and he testified that, if the evi- dence failed to prove the facts alleged in the newspaper, he would decide accord- ing to the evidence or lack of evidence at the trial, and thought he could try the case solely upon the evidence, fairly and impartially. (1910) Holt v. United States, 218 U. S. 245. 54 L. Ed. 1021, 31 S. Ct. 2, affirming judgment (C. C. 1909), 168 F. 141. 778-47a. Reading newspapers with ar- ticles about case. — Holt :■. United States, 218 U. S. 245. 54 L. Ed. 1021, 31 S. Ct. 2. 778-47b. Right to new trial lost by waiver. — Spreckels z\ Brown. 212 U. S. 208, 53 L. Ed. 476, 29 S. Ct. 256. See post, NEW TRIAL. A new .trial need not be granted on the ground that the jury was improperly in- fluenced by newspaper reports that the trial judge, in the absence of the jury, stated, on a motion to direct a verdict, that he was inclined in favor of the plain- tiff, though still having some doubt, and that he might set aside a verdict for de- fendants, where counsel for defendants, in open court, stated that they would take their chances of the effect of such reports upon the jury, at a time when there were several wa3-s in which the jurors could have been prevented from seeing the pa- pers, and stopped the court from even giving the jury instructions not to read the papers. Spreckels z\ Brown. 212 U. S. 208, 53 L. Ed. 476. 29 S. Ct. 256. 779-2. Just cause. — In an Alabama stat- ute, providing in substance, that the re- fusal or failure to perform the service contracted for, or to refund the money ob- tained, in a contract of employment, with- out just cause, should be prima facie evi- dence of the intent to injure or defraud, the refusal or failure to perform the serv- ice, without just cause, constitutes the breach of the contract. The justice of the grounds of refusal or failure must, of course, be determined by the contractual obligation assumed. Whatever the rea- son for leaving the service, if. judged by the terms of the contract, it is insufficient in law. it is not "just cause." This act was held invalid. Bailev r. Alabama, 219 U. S. 219, 234, 55 L. Ed. 'l91, 31 S. Ct. 145. See post. SLAVERY AND INVOLUNTARY SERVITUDE. 815 786-788 LABOR. Vol. VII. LABOR. I. In General, 816. II. National Eight Hour Laws, 816. B. Act of Congress of Aug. 1, 1892, 816. 3. Construction of Act, 816. c. Extraordinan' Emergency, 816. C. Act of ^larch 4, 190/, 817. III. State Eight Hour Laws, 817. V. Federal Regulation of Hours of Telegraph Operator, 817. VI. State Regulation of Hours of Women Employees, 817. VII. Labor Organizations, 817. CROSS REFERENCES. See the title Labor, vol. 7, p. 786, and references there given. In addition, see ante. Constitutional Law, p. 264; Due Process of Law, p. 475; Fellow Servants, p. 579; Interstate and Foreign Commerce, p. 689; post. Master and Servant; Police Power. As to constitutionality of federal statutes regulating hours of labor of employ- ees of interstate carriers, see ante, Constitutional Law, p. 264; Due Process OF Law, p. 475; Interstate and Foreign Commerce, p. 689. As to state reg- ulation of hours of employees of interstate railways, see ante. Interstate and Foreign Commerce, p. 689. As to discharge of employee because of member- ship in labor organization, see ante. Constitutional Law, p. 264; Due Proc- ess OF Law, p. 475; Interstate and Foreign Commerce, p. 689; post. Mas- ter and Servant. As to combination by members of labor organization to re- strain trade or boycott manufacturers, etc., see post, ^Ionopolies and Corporate Trusts; Restraint of Trade. As to hard and painful labor as being cruel and imusual punishment, see ante. Constitutional Law, p. 264. I. In General. See note 1. II. National Eight Hour Laws. B. Act of Congress of Aug. 1, 1892 — 3. Construction of Act — c. Es- traordinary Emergency. — The extraordinary emergency within the meaning of the Act of Aug. 1. 1892, c. 352, 27 Stat. 340 ( U. S. Comp. Stat. 1901, p. 2521 ), is a special occurrence, and the phrase used emphasizes this. It is not an emer- gency simply which is expressed by it, something merely sudden and unexpected, but an extraordinary one — one exceeding the common degree.^ ^^ Xo mere re- quirement of business convenience or pecuniary advantage is an extraordinary emergency within the meaning of the act.^^*" xAnd, besides, the extraordinary emergency which relieves from the act is not one that is contemplated and in- heres necessarily in the work. The phrase was used with a consciousness of its 786-1. In general. — Adair z\ United 788-lla. Extraordinary emergency. — States, 208 U. S. 161, 52 L. Ed. 436, 238 S. United States v. Garbish. 222 U. S. 257, 56 Ct. 277; Muller v. Oregon, 208 U. S. 412, L. Ed. 190, 32 S. Ct. 77. 52 L. Ed. 551, 28 S. Ct. 324; Baltimore. 788-llb. United States z: Garbish, 222 etc., R. Co. V. Interstate Commerce U. S. 257, 56 L. Ed. 190. 32 S. Ct. 77, fol- Comm., 221 U. S. 012, 55 L. Ed. 878, 31 lowing Ellis v. United States, 206 U. S. S. Ct. 021. 246, 257, 51 L. Ed. 1047, 27 S. Ct. 600. 816 Vol. VII. LABOR COMBIXATIOXS. 788 meaning and with the intention of conveying such meaning. '"The phrase 'con- tinuing extraordinary emergency' is self-contradictory.'"^ '- C. Act of March 4, 1907. — See post, "Federal Regulation of Hours of Telegraph Operator." \'. III. State Eight Hour Laws. See note 12. "V. Federal Regulation of Hours of Telegraph Operator. Requiring a railway telegraph operator to work 5y2 hours, and then, after an interval, 3^^ more hours in the same 24, is not made unlawful by the provisions of Act ^larch 4, 1907, c. 2939, §§ 2, 3, 34 Stat. 1415, 1416 (U. S. Comp. St. Supp. 1909, pp. 1170, 1171), forbidding common carriers to permit such em- ployees to be on duty for a longer period than 9 hours in any 24-hour period in a place continuously operated night and day.^'*'' "VI. State Regulation of Hours of "Women Employees. See ante, Constitutional Law, p. 264 ; Due Process of Law, p. 475 ; post, Police Power. "VII. Labor Organizations. See post, ^Monopolies and Corporate Trusts. LABOR ASSOCIATIONS.— See note a. LABOR COMBINATIONS.— See ante. Labor, p. 816. 788-llc. United States z\ Garbish, ?22 U. S. 2o:. :.(> L. Ed. 190, 32 S. Ct. 77. The building of a public levee on the Mississippi river in the Eastern District of Louisiana can not be said to present at all times an extraordinary emergency, within the meaning of Act Aug. 1, 1892, c. 3.J2, 27 Stat. 340 (U. S. Comp. St. 1901, p. 2521), regulating the hours oF labor of laborers and mechanics on public works, and makmg it unlawful to require or per- mit such employees to work a longer time except in cases of extraordinary em.er- gencv. United States z\ Garbish, 222 U. S. 2.57. 56 L. Ed. 190, 32 S. Ct. 77, revers- ing judgment ( C. C. 1910), 180 F. 502. 788-12. State eight and ten hour laws. —Adair -• United States, 208 U. S. 161, 52 L. Ed. 436. 28 S. Ct. 277; Muller 7-. Oregon, 208 U. S. 412. 52 L. Ed. 551, 28 S. Ct. 324. "We held in Eochner :'. Xevv York, 198 U. S. 45, 49 L. Ed. 937, 25 S. Ct. 539, that a law providing that no laborer shall be required or permitted to work in bakeries more than sixty hours in a v.-eek or ten hours in a daj- was not as to men a legiti- 12 U S Enc— 52 817 mate exercise of the police power of the state, but an unreasonable, unnecessary, and arbitrary interference with the right fiud liberty of the individual to contract in relation to his labor, and as such was in conflict with, and void under, the fed- eral constitution." Muller z\ Oregon, 208 U. S. 412, 52 L. Ed. 551, 28 S. Ct. 324. 788-14a. Act March 4, 1907.— United States f. Atchison, etc., R. Co., 220 U. S. 37, 55 L. Ed. 3G1, 31 S. Ct. 362, affirming 177 Fed. 114, 100 C C. A. .534. 788-a. "Labor associations, we assume, are organized for the general purpose of improving or bettering the conditions and conserving the interests of its members as wage earners — an object entirely legiti- mate and to be commended rather than condemned. But surely those associations as labor organizations have nothing to do with interstate commerce as such." Adair ■V. United States, 208 U. S. 161, 178, 52 L. Ed. 436, 28 S. Ct. 277. See ante, INTER- STATE AXD FOREIGN COMMERCE, p. 689; post, MONOPOLIES AND COR- PORATE TRUSTS. 798-799 LACHES. Vol. VII. LACHES. II. What Constitutes Laches, 818. B. Elements, 818. 3. Delay and Want of Diligence, 818. a. In General, 818. 6. Prejudice to Adverse Party, 819. 8. Acquiescence or Abandonment, 819. III. Effect of Laches, 819. C. Basis for Affirmative Relief. 819. VIII. Applying Doctrine in Porto Rico, 819. CROSS REFERENCES. See the title Laches, vol. 7, p. 790, and references there given. As to laches barring rights of trustee in bankruptcy, see ante. Bankruptcy,, p. 168. As to laches barring mandamus to enforce compliance with mandate, see post, AIandate and Proceedings Thereon. As to laches barring enforce- ment of resulting trust in grant of public lands, see post. Public Lands ; Trusts and Trustees. II. What Constitutes Laches. B. Elements — 3. Delay and Want oe Diligence — a. In General. — A court of equity will not afford relief where there has been such laches as cause it to be inequitable to do so.-^'^ While laches is often spoken of as the equitable equivalent of the legal statute of limitations, yet there is no fixed time which makes it an absolute bar.-^^ Inaction for such a time has been held to bar a 798-21a. Creswill v. Grand Lodge Knights of Pythias, 225 U. S. 246, 56 L. Ed. 1074, 32 S. Ct. 822, following Saxlehner V. Eisner, etc., Co., 179 U. S. 19, 35, 45 L. Ed. 60, 21 S. Ct. 7. See, to the same effect, Rock Island Plow Co. v. Reardon. 222 U. S. 354, 56 L. Ed. 231, 32 S. Ct. 164. 799-23a. Wagg v. Herbert, 215 U. S. 546, 54 L. Ed. 321, 30 S. Ct. 218. "It would be open to argument whether laches was made out, even under our law, sufficient to defeat the remedy usually given by equity to enforce a purely legal right; in other words, whether mere laches of tim.e short of the statute of limi- tations, with nothing more, should defeat the foreclosure of a lien supposed still to exist at law." Noble v. Gallardo y Seary, 223 U. S. 65, 56 L. Ed. 353, 32 S. Ct. 194. In Russell v. Southard. 12 How. 139, 13 L. Ed. 927, there was between the fraudulent transaction and the commence- ment of the suit a lapse of nineteen years and eight months, and it was held that that was not sufficient, the court saying: "The absence of all valuable considera- tion for the surrender of the equity, and the circumstances of distress under which it was made, and which, so far as it ap- pears, continued to exist down to the filing of the bill, coupled with the con- viction, which we think Russell mis- takingly entertained, that his rights were probably destroyed, must prevent us from allowing the lapse of time to be a positive bar." Wagg v. Herbert. 215 U. S. 546, 54 L. Ed. 321, 30 S. Ct. 218. Suit to set aside deed. — A delay of two years and one month in bringing suit to cancel a conve3^ance by which a mort- gagee, by means of fraud, oppression, and undue influence, acquired in settle- ment of the mortgage debt a tract of land of far greater value than the amount of such debt, is not such laches as bars the suit. Wagg V. Herbert, 215 U. S. 546, 54 L. Ed. 321, 30 S. Ct. 218. Petition in intervention to enforce trust. — The right of the administratrix of the surety on a forfeited bail bond, as- serting an express trust in the security's favor in certain securities held by a third person, to intervene in a suit by the United States to charge the holder of the securities with a trust in favor of the gov- ernment, is not barred by laches because the petition in intervention was not filed' until the evidence in the suit had been taken and it was ready for final hearing, where such petition was filed shortly after judgment had been recovered in a con- tested suit on the bond. Leary v. United States, 224 U. S. 567, 56 L. Ed. 889, 32 S. Ct. 599. 818 Vol. MI. LACHES. 799-824 suit for accounting,--^'' a bill for injunctive relief--'"' and a suit to set aside a sale under a trust deed.-^^ 6. Prejudice to Adverse Party. — See note 32. 8. Acquiescence or Abaxdoxmext. — See note 34. III. Effect of Laches. C. Basis for Affirmative Relief. — The objection of laches on the part of the grantors in attacking a sale in attachment proceedings of property covered by a trust deed is not available to the defendants, in a suit to set aside the attachment proceedings and enforce the trust deed, who claim title to the property under the attachment proceedings, where they make their title the basis of an assertion of a right to affirmative relief. ^-^ VIII. Applying Doctrine in Porto Rico. The injustice which, would result from applying the doctrine of laches to the conduct of the parties in Porto Rico during the many years that were not governed by any rule peculiar to chancery courts forbids the application of this doctrine so as to defeat a suit to foreclose a mortgage or lien executed in 1865, and still supposed to exist at law. and not shown to be barred by any statute of limitations, especially where no change of position on the faith of, or seemingly influenced by, the acquiescence of the complainants of their predecessors, is dis- closed. ^*^^ 799-23b. Suit for accounting. — Failure to bring suit for an accounting under an agreement to divide the net attorneys' fees received in the prosecution of French Spoliation claims until two j-ears after the enactment of the Appropriation Act of :\Iarch 3, 1899 (30 Stat, at L. 1161, 1191, chap. 426, U. S. Comp. Stat. 1901. p. 751), from which payment might be made, is not such laches as defeats a recovery. Earle v. Myers, 207 U. S. 244, 52 L. Ed. 191, 28 S. Ct. 86. Suit by surviving partner. — The delay in filing the bill will not bar a suit for an accounting from the surviving partner in a special partnership between lawyers for the prosecution of a number of claims against the United States in congress and before the court of claims, the fees for which services were contingent upon suc- cess, and were to be paid in solido, and divided between the partners in the same manner, where such bill, though not filed until eight years after the other partner had been adjudged a lunatic, and three years after his death, was filed within four months after the fees were collected. Consaul %'. Cummings, 222 U. S. 262. 56 L. Ed. 192. 32 S. Ct. 83. 799-23C. Injunctive relief. — The inac- tion of a fraternal order during the many years in which a newer order, taking the same name, has existed in the state and has exercised its attributes and functions, is such laches as defeats the former's right to injunctive relief against the in- fringement of its name and the copying of its insignia and emblems. Creswill v. Grand Lodge Knights of Pvthias, 225 U. S. 246. 56 L. Ed. 1074, 32 S. Ct. 822. 799-23d. Suit to set aside sale under trust deed. — A delay of four j-ears, dur- ing which there has been a large apprecia- tion in the value of the property, is fatal to any right to require a tenant in com- mon to give his cotenants the benefit of liis purchase of the conimon property at a public sale under a power in a trust deed. Starkweather v. Jenner, 216 U. S. 524, 54 L. Ed. 602. 30 S. Ct. 382. 803-32. It seems that a change of posi- tion on the faith of, or seem.ingly in- fluenced by, the quiescence of the person alleged to be guilty of laches or their predecessors, must be disclosed in order to establish the defense of laches. Noble r. Gallardo y Searv. 223 U. S. 65, 56 L. Ed. 353. 32 S. Ct. 194. 805-34. A widow, who. being the dev- isee under her husband's will, received the purchase price of an estate in real property which was convcA^ed by his ex- ecutor in the mistaken belief that it was subject to testamentary devise, and rested ten years without asserting her claim to the property after a decision of the highest court of the state to the effect that a moiety of such property was in law her community propertj', must be deemed to have ratified the sale, so as to preclude her grantees from asserting title as against the United States, claiming un- der the executor's deed. Hussey i'. United States. 222 U. S. 88, 56 L. Ed. 106, 32 S. Ct. 33. 809-42a. Basis for affirmative relief. — Southern Pine Lumber Co. :'. Ward. 208 U. S. 126. 52 L. Ed. 420. 28 S. Ct. 239, af- firming 16 Okl. 131. 85 Pac. 459. 824-80a. Application to Porto Rico. — Xoble 7-. Gallardo v Seary, 223 U. S. 65, 56 L. Ed. 353, 32 S. Ct. 194. 819 82 5-833 LANDLORD AND TENANT. Vol. VII LAKES. — See ante, Admiralty, p. 10; Inte;rstate and Foreign Com- merce, p. 689 ; post, Navigable Waters. LAND.— See note 4. LAND DEPARTMENT.— See post, Public Lands. LANDLORD AND TENANT. IV. Lease or Contract of Rental, 820. Oy2. Covenant to Pay Taxes, 820. Vn. Assignment and Subletting, 821. C. Covenants against Assigning or Subletting, 821. IX. Rent, 821. H. Landlord's Lien, 821. 1. In General, 821. 2. When Lien Attaches, 821. a. At Common Law, 821. I. Action for Recovery of Rent, 821. 2. Distress, 821. ' a. In General, 821. CROSS REFERENCES. See the title Landlord and Tenant, vol. 7, p. 827, and references there given. In addition, see ante. Fixtures, p. 583. i IV. Lease or Contract of Rental. G|. Covenant to Pay Taxes. — The covenant of a perpetual leaseholder with his municipal lessor to pay the public taxes which shall become due on the land embraces municipal taxes wdienever they can thereafter be lawfully assessed on the land or the improvements which are part of the land, although when the lease was made the municipality had no power of taxation.-'^'' 825-4. To land. — Section 18 of the Im- pretext to get here, desert, and get in. migration Act of March 3, 190.3, makes it Therefore the ordinary case of a sailor the duty of any officer in charge of any deserting while on shore leave is not com- vessel bringing an alien to the United prehended by the provisions of the act, States to adopt due precaution to preveiri notwithstanding the omission from this the landing of such alien at any time or section of the word "immigrant" which place other than that designated by the had followed the word "alien" in the immigration officers, and punishes him if earlier acts. Taylor v. United vStates, 207 he lands or permits to land any alien at U. S. 120, 52 L. Ed. 130, 28 S. Ct. 53. See any other time or place. Literally, the ante, ALIENS, p. 18. later words "to land" means to go ashore. Criminal jurisdiction over lands reserved The words must be taken in thoir literal or acquired for use of the United States. — sense. "Landing from such vessel" takes See ante, CRIMINAL LAW. p. 434:. place and is completed the moment the 833-31a. Covenant to pay taxes. — Perry vessel is left and the shore reached. But Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. it is necessary to all commerce, as all ad- 548, 31 S. Ct. 465, affirming judgment, mit, that sailors should go ashore, and no City of Norfolk v. J. W. Perry Co. one believes that the statute intended alio- (1908), 61 S. E. 867, 108 Va. 28, and City gether to prohibit their doing so. Reject- of Norfolk v. White (1908), 61 S. E. 870, ing the ambiguous interpretation of "to 108 Va. 35. land" the necessary result can be reached "It is true that in the present case the only by saying that the section does not indenture uses apt words to create a lease, apply to sailors carried to an American and the Virginia court held that it Was port with the bona fide intent to take them technically such. But there are other and out again when the ship goes on, when controlling features which show that, not only there was no ground for suppos- even if the legal title is in the city, the ing that they were making the voyage a lessees have rights different from those 820 \'oI. MI. LANDLORD AND TENANT. 837-843 VII. Assignment and Subletting. C. Covenants against Assigning or Subletting. — It is said by some textwriters that an ordinary covenant against subletting and assignment is not broken by a transfer of the leased premises by operation of law, but the covenant may be so drawn as to expressly prohibit such a transfer, and in that case the lease would be forfeited by an assignment by operation of law.'^^^ IX. Rent. H. Landlord's Lien — 1. In General. — See note 71. 2. When Liex Attaches — a. At Common Law. — See note 72. I. Action for Recovery of Rent — 2. Distress — a. In General. — Issuance of Warrant. — In issuing a distress warrant under the laws of Georgia, a justice acts ministerially.'^ ^^ usual in a mere leasehold estate. On con- dition broken, they do not ipso facto lose all interest in the property and its proceeds. The contract does not contain the common stipulation that the tenant shall be compensated for his permanent improvements. On the tenant's default the city can not at once enter into pos- session, but 'the lot and improvements shall be leased out at public outcry for the remainder of the term,' and after de- ducting- unpaid rent and taxes the over- plus, if any, shall be paid to the lessees. This overplus would represent, in part, the value of permanent improvements and also of the unexpired term. Selling- the city's property to pay rent due the city is not at all consistent with the idea of a mere lease. It indicated rather that the tenant had a substantial interest in the property which was security for the pay- ment of whatever he owed the city. The contract creates an estate somewhat like the perpetual lease of the civil law, where the tenant was for inany purposes treated as owner, and liable for taxes. Merlin Rep., vol. 10, p. 232; Cooper's Inst. 277, 278; Sohmn's Inst, 3d Ed., 346. It was also similar in its nature to ground rent, where an annual rental and public taxes are perpetually charged on the land, in- stead of a gross sum being paid or secured. There the grantor is treated as having a fee in the rent reserved, and the grantee a fee in the land, subject, among other things, to the payment of public taxes. Duane on Landlord and Tenant, 96; Cadwallader on Ground Rent, 101; Robinson v. County of Allegheny, 7 Pa. St. 161." Perry Co. v. Norfolk, 220 U. S. 472, 478, 55 L. Ed. 548, 31 S. Ct. 465. 837-51a. Covenant against assigning, etc. — Gazlay z: Williams, 210 U. S. 41, 47, 52 L. Ed. 950, 28 S. Ct. 087, quoting from Jones on Landlord and Tenant. Sale by trustee in bankruptcy. — A sale i)y a trustee in bankruptcy, under order of court, of his bankrupt's interest as lessee in a lease of real property, is not a breach of a condition in such lease, im- posing a forfeiture if the lessee assigned the lease, or the lessee's interest should be sold under execution or other legal process without the lessor's written con- sent. Judgment (1906), 147 F. 678, 77 C. C. A. 662, affirmed. Gazlay v. Williams, 210 U. S. 41. 52 L. Ed. 950, 28 S. Ct. 6S7. See ante, BAXKRUPTCY. p. 168. 841-71. The right given a landlord un- der the Code of Georgia which (by §§ 2787, 3124, 2795) expressly establishes Hens in favor of landlords, and gives them power to distrain for rent as soon as the same is due, and declares that land- lords shall have a general lien on the property of the tenant liable to levy and sale * * * which dates from the levy of the distress warrant to enforce the same is the full equivalent of a common-law distress. The fact that the warrant could be levied upon property which had never been on the rented premises does not change the nature of the landlord's tight, though it may increase the extent of his security. Henderson t'. ]\Iayer, 225 U. S. 631, 638, 56 L. Ed. 1233, 32 S. Ct. 699. While under the law of Georgia the owners of agricultural lands have a spe- cial lien on the crops, there is no inten- tion to deprive the proprietor of urban and other real estate of the lien for rent which here, as in other states, is treated as an incident growing out of the relation of landlord and tenant. Henderson v. Maver. 225 U. S. 631, 638, 56 L. Ed. 1233, 32 S. Ct. 699. 842-72. At common law. — "The pledge, or quasi-pledge, which the landlord is said to have is, at most, only a power to seize chattels found on the rented prem- ises. These he could take into posses- sion and hold until the rent was paid. Doe ex dem Gladney v. Deavors, 11 Ga. 79, 84. But before the distraint the land- lord at common law has 'no lien on any particular portion of the goods and is only an ordinary creditor except that he has the right of distress by reason of which he may place himself in a better position.' " Sutton v. Reese, 9 Jur. (U. S.) 456, Henderson z: Mayer. 225 U. S. 631, (•):i7, 56 L. Ed. 1233, 32 S. Ct. 699. 843-75a. Issuance of warrant ministerial. — Savage v. Oliver. 110 Georgia 636. Henderson v. Mayer, 225 U. S. 631, 639, 56 L. Ed. 1233, 32 S. Ct. 699. 821 845-8 50 LBGAL CONCLUSIONS. Vol. VII. LANDLORD'S LIEN.— See ante, Landlord and Tenant, p. 820. LANDMARKS.— See ante, BouNDARms, p. 206. LAND OFFICE.— See post, Pubuc Lands. LAND OFFICERS. — See post. Mandamus; Mines and Minerals; Public Lands. LAND PATENTS,— See post, Pubuc Lands. LARCENY. — See the title Larceny, vol. 7, p. 844, and references there given. LAST CLEAR CHANCE.— See post. Negligence. LATERAL BRANCH LINE.— See note 3a. LATERAL OR BRANCH ROADS.— See post, Public Lands; Railroads. LAW.— See note 846-1. LAW MERCHANT.— See ante, Bills, Notes and Checks, p. 204. LAW OF NATIONS.— See ante, International Law, p. 686. LAW OF THE CASE.^See ante. Appeal and Error, p. 34; Courts, p. 398. LAW OF THE ROAD.— See ante. Collision, p. 243; post. Streets and Highways. LAWYER. — See ante, Attorney and Client, p. 158. LAYING VENUE.— See post. Postal Laws. LAY WITNESS. — See ante, Expert and Opinion Evidence, p. 569. LEGACY.— See post, Wiles. LEGAL CONCLUSIONS. CROSS REFERENCES. See the title Legal Conclusions, vol. 7, p. 849, and references there given. General Rule.— See note 849-1. What Are Legal Conclusions. — A mere statement that a statute is uncon- stitutional without setting forth facts which would make the operation of the statute unconstitutional is a legal conclusion. ^^^ Averments that a mutual life 845-3a. Lateral branch line.— See Inter- 4.36, 56 L. Ed. 1152, 32 S. Ct. 739. See state Commerce Comni. v. Delaware, etc., ante, APPEAL AND ERROR, p. 34. R. Co., 216 U. S. 531, 54 L. Ed. 605, 30 S. 849-1. General rule.— Southern R. Co. Ct. 415. See ante, INTERSTATE AND i: King, 217 U. S. 524, 54 L. Ed. 868, 30 FOREIGN COMMERCE, p. 689. S. Ct. 594. 846-1. "Law is a statement of the cir- Applies to the practice in Georgia. — cumstances in which the public force will Southern R. Co. v. King, 217 U. S. 524, be brought to bear upon men through the 54 L. Ed. 868, 30 S. Ct. 594. courts. But the word commonly is con- 850-14a. Mere statement that statute fined to such prophecies or threats when unconstitutional. — General averments in addressed to persons living withm the an amended answer in an action to re- power of the courts. A threat that de- cover damages from a railway company pends upon the choice of the party affected for a wrongful death caused by violation to bring himself within that power hardly of Civ. Code Ga. 1895, § 2222, requiring would be called law in the ordinary the slackening of speed at highway cross- sense." American Banana Co. v. United ings, that such statute violates the corn- Fruit Co., 213 U. S. 347, 356, 53 L. Ed. 826, merce clause, and is a direct burden upon 29 S. Ct. 511. See post. MONOPOLIES and impedes traffic, and impairs the use- AND CORPORATE TRUSTS. fulness of the railway company's facilities Law of the case. — The phrase "law of for that purpose, and that it is impossible the case," as applied to the effect of a de- to observe the statute in carrying mails cision of .an appellate court in an earlier and interstate commerce business, are not appeal in the same case, merely expresses. sufficient as against demurrer, since they in the absence of statute, the practice of are mere conclusions, and do not show courts generally to refuse to reopen what the number or location of the crossings has been decided, and not a limit to their at which the railway company will be re- power. Messenger v. Anderson, 225 U. S. quired to check the speed of its trains, 822 Vol. VII. LIABILITY— LIABLE. 850-855 insurance company is liable to its policy holders for frauds committed by its officers against the company and insolvency as a result thereof are legal con- clusions. ^^'^ Effect of Demurrer. — See note 17. Admissions on Demurrer. — See note 18. LEGAL REPRESENTATIVE.— See ante, Executors and Administrators, p. 564. LEGATEES AND DISTRIBUTEES.— See ante, Executors and Admin- istrators, p. 564; post, Wills. LEGISLATIVE. — See ante. Carriers, p. 216; Constitutional Law, p. 264; Courts, p. 398; Injunctions, p. 657. And see ante, Judicial, Legisla- tive AND Ministerial. LEGISLATIVE BOARD.— See ante, Constitutional Law, p. 264; post, Public Officers. LEGITIMATION.— See ante, Bastardy, p. 201. LESSOR AND LESSEE.— See ante, Landlord and Tenant, p. 820. LETTERS. — See ante. Best and Secondary Evidence, p. 202; Documen- tary Evidence, p. 469; post. Postal Laws. LETTERS OF ADMINISTRATION.— See ante, Executors and Admin- istrators, p. 564. LETTERS OF ATTORNEY.— See post. Powers. LETTERS OF CREDIT.— See the title Letters oe Credit, vol. 7, p. 854, and references there g\'en. LETTERS PATENT.— See post. Patents. LEVEES.— See the title LeveEs, vol. 7, p. 854, and references there given. LEVY. — See ante, Attachment and Garnishment, p. 156; Executions, p. 563. LEX DOMICILII.— See ante. Domicile, p. 472. LEX FORI. — See ante. Conflict of Laws, p. 250. LEX LOCI CONTRACTUS.— See ante, Conflict of Laws. p. 250. LEX LOCI REI SIT^.— See ante, Conflict of Laws, p. 250. LIABILITY— LIABLE.— See note 8. nor that the particular crossing is not a Applies to practice in Georgia. — South- dangerous one. Southern R. Co. 7'. King, ern R. Co. z'. King, 217 U. S. 524, 54 L. 217 U. S. 524, 54 L. Ed. 868, 30 S. Ct. 594, Ed. BOS, 30 S. Ct. 594. affirming judgment (1908), 160 F. 332, 87 851-18. Legal conclusions not admitted C. C. A. 284. on demurrer. — Equitable Life Assur. See. 850-14b. Averment as to liability of Mu- v. Brown, 213 U. S. 25, 43, 53 L. Ed. 682, tual Life Insurance Company. — Equitable 29 S. Ct. 404. See, also, ante, DEMUR- Life Assur. Soc. v. Brown, 213 U. S. 25, RERS, p. 461. 50, 53 L. Ed. 682, 29 S. Ct. 404. 855-8. Liabilities.— The limitation of a Allegations of insolvency contained in shipowner's liability from marine torts a bill filed by a policy holder, for an ac- not the result of his own faults, was ex- counting or for the appointment of a re- tended to nonmarine tort by the provi- ceiver to wind up the affairs of a mutual sions of the Act of June 26, 1884, limitin.g life insurance company which are based the individual liability of the shipowner upon the idea that the company itself is for "any and all delfts and liabilities," ex- liable to policy holders for frauds or cept wages and liabilities incurred prior to wrongdoing committed by the officers or such enactment, to his share in the vessel, directors a.gainst the company, and in and the aggregate liabilities of all own- their personal interests, are legal con- ers of the vessel on account of the same elusions. Equitable Life Assur. Soc. v. to the value of the vessel and freight Brown, 213 U. S. 25, 53 L. Ed. 682, 29 S. pending. Richardson v. Harmon. 222 U. Ct. 404. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. See ante, 851-17. May be demurred to.— See ante, COLLISION, p. 243; post, SHIPS AND DEMURRERS, p. 461. SHIPPING. 823 8 58-859 LIBEL AND SLANDER. Vol. VII. LIBEL AND SLANDER. I. Definitions, 824. II. Right to Maintain Action, 824. E. Words Tending to Injure Another in His Trade, Occiipa1:ion or Calling, 824. V. Publication, 825. VIII. Justification and Defenses, 825. A. Truth as a Defense, 825. B>^. Mistake, 825. X. Pleading and Practice, 825. E. Judgment — Equitable Relief, 825. XI. Criminal Law, 826. CROSS REFERENCES. See the title Libel .\nd Slander, vol. 7, p. 'S>?7 , and references there given. I. Definitions. Quaere, whether attributing to a person's conduct that is lawful can be libel. ^'^ II. Right to Maintain Action. E. Words Tending to Injure Another in His Trade, Occupation or Calling. — Criticism and Comment on Conduct of Public Officer. — Anything bearing upon the acts of a public officer connected with his office is a legitimate subject of statement and comment, at least in the absence of express malice. ^-^ Injuring Standing with General Public. — A publication can not be held as a matter of law not to be libelous because it may not injure the plaintifif's standing with the general public, if it may injure her in the estimation of a considerable and respectable class of the community.^-'' 858-la. Definition. — Gandia i'. Pettingill, ' Porto Rico considered the acts charged 222 U. S. 452, 457, 56 L. Ed. 267, 32 S. Ct. as immoral, and where, had the plaintiff 127. been a local officer, such conduct would 859-12a. Criticism and comment on con- have been forbidden by the local law. duct of public officer. — Gandia v. Petting- Gandia v. Pettingill, 222 U. S. 452, 56 L. ill, 222 U. S. 452, 56 L. Ed. 267, 32 S. Ct. Ed. 267, 32 S. Ct. 127. 127. 859-12b. Injuring standing with general Necessity for malice. — The refusal to in- public. — Peck ?-. Tribune Co., 214 U. S. struct the jury in an action for libel in 185, 53 L. Ed. 960, 29 S. Ct. 554. publishing newspaper articles charging Publication of portrait of nurse in the United States attorney for Porto Rico whiskey advertisement. — The publication with carrying on a private practice and in an advertisement for a brand of acting as lawyer on behalf of persons whiskey of the portrait of a woman, in bringing suit against the local govern- connection with a signed statement pur- ment, which the articles characterize as porting to have been made by her, that a monstrous immorality, a scandal, etc., she is a nurse, and has used the whiskey that so far as the publication of facts dis- for herself and patients, and recommends approved by the community was con- it. can not be said as a matter of law not cerned, the plaintiff coyld not recover, to be libelous, because such publication however technically lawful his conduct may not injure her standing with the gen- might have been, unless there was ex- eral public. Judgment (1907), 154 F. 330, press malice, or the comment went be- 83 C- C. A. 202, reversed. Peck v. Tribune yond reasonal)le limits, is reversible error Co., 214 U. S. 185, 53 L. Ed. 960, 29 S. Ct. where there is evidence that the people of 554. 824 \'ol. MI. LIBEL AND SLANDER. 859-864 Publication of Likeness. — Quaere, whether the unauthorized pubHcation of a plaintitY's hkeness is a tort per se.^^'^ V. Publication. Publication of Portrait under Name of Another Person. — The pubHca- tion of a woman's portrait in an advertisement for whisky, in connection with a signed statement purporting to be made by her, to the effect that she is a nurse, and has used the whisky for herself and patients, and recommends it, is a publication of and concerning her, although the name appended to such statement is that of an entirely different person. -^'^ VIII. Justification and Defenses. A. Truth as a Defense. — A charge of using an ofifice to procure an indict- ment as part of a conspiracy to blackmail can not be justified or in any degree excused by the fact that the officer, a prosecuting attorney, neglected to investi- gate the character of the prosecuting witnesses.-^"'' B|. Mistake. — The publication of the portrait of an entirely dift'erent per- son from the one to whom the annexed libelous article refers is not excused because it was by mistake, and without knowledge that it was not what it pur- ported to be.-^^'^ X. Pleading and Practice. E. Judgment — Equitable Relief. — Complainants urging newly-discovered evidence as to the truth of a libel as a ground for enjoining the enforcement of a judgment for damages recovered in an action for the libel, in which justification was not pleaded, must prove that their failure to discover such evidence and plead it by way of defense was not attributable to their own want of diligence, where the answer calls for strict proof of the averments of the bill that they made diligent but unsuccessful efforts to discover such evidence, both before and after the filing of their plea,^^'' and the enforcement of such judgment wnll not be restrained where the newdy-discovered evidence not only does not con- clusively establish the truth of the libel, but does not render it clear beyond a reasonable doubt that such evidence would produce a different verdict on a retrial. ■*'''' Xor will such evidence justify equitable relief on the theory that the failure to plead justification was through accident or mistake, where that defense was considered by the defendants and their counsel and deliberately 859-12C. Publication of likeness.— Peck D. C. 498, affirmed. Pickford i\ Talbott f. Tribune Co.. 214 U. S. 18.5. 190, .53 L. 211 U. S. 199, .5.3 L. Ed. 146, 29 S. Ct. 75. Ed. 960, 29 S Ct. 554. , . ^ 863-38a. Mistake.— Peck v. Tribune Co., 860-21a Publication of portrait under 214 u. S. 185, 53 L. Ed. 960, 29 S. Ct 554. name of another person. — Judgment ■• \ n 1 ■ i. r 1 • r rr (1907), 154 F. 330, 83 C. C. A. 202, re- ^,;> J'^'^^'" ^^'"'ft? °" 'ts face. If a versed. Peck v. Tribune Co., 214 U. S. f",f" , ? ^ ^° P"^'"^- ""■^"'^^.^^i^ .^i^^-V 185. 53 L. Ed. 960, 29 S. Ct. 554. 1 L.,!. " f " • ''°rfi''''T"'^ .f " individual, 863-37a. Truth as a defense.-Pickford ^^ '^\T ? -""ftification than exists for V. Talbott, 211 U. S. 199, 209, 53 L. Ed. f/' ^''''^'n^-'inl' T f ^."''n news, the I4f 99 S Ct "- usual principles of tort will make him Evidence that" a prosecuting attorney ^^l^'Jil, the statements are false or are neglected to investigate the character of ^rLZf^r offTf Oil Co. V. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. "So, in Connolly v. Union, etc.. Pipe Co., 184 U. S. 540, 562, 46 L. Ed. 679, 22 S. Ct. 431, 'A tax ma3' be imposed only upon certain callings and trades, for when the state exerts its power to tax, it is not bound to tax all pursuits or all property that may be legitimately taxed for gov- ernmental purposes. It would be an in- tolerable burden if a state could not tax any property or calling unless, at the same time, it taxed all property or all callings. Its discretion in such matters is very great, and should be exercised solely with reference to the general welfare, as involved in the necessity of taxation for the support of the state. A state may, in its wisdom, classify property for pur- poses of taxation, and the exercise of its discretion is not to be questioned in a court of the United States, so long as the classification does not invade rights secured by the constittition of the United States.' " Southwestern Oil Co. v. Texas, 217 U. S. 114. 54 L. Ed. 688, 30 S. Ct. 496. 880-53a. Wholesale oil dealers. — The im- position of an occupation tax on wliolesale dealers in oils, under Gen. Laws Tex. 1905, c. 148, § 9, without exacting a similar tax from wholesale dealers in other articles, does not ciflfend against the due process of law clause of the federal constitution. Judgment (1907), 103 S. W. 489, 100 Tex. 647. affirmed. Southwestern Oil Co. ■:■. Texas, 217 U. S. 114, 54 L. Ed. 688, 30 S. Ct. 496. See, also, ante, CONSTITU- TIONAL LAW, p. 264: post, TAXA- TION. And see ante, "Classification of Occupations, etc.," Ill, G. 827 897-898 LIMITATION OF ACTIONS, ETC. Vol. VIL LIENS. IX. Determination of Liens, 828. E. Statute of Limitations, 828. CROSS REFERENCES. See the title LIENS, vol. 7, p. 890, and references there given. In addition, see ante. Bankruptcy, p. 168; Landlord and Tenant, p. 820; post, Vendor's Lien. IX. Determination of Liens. E. Statute of Limitations. — See note 49. LIEU LANDS.— See post, Public Lands. LIFE. — See note 1. LIFE BOATS AND RAFTS.— See post. Ships and Shipping. LIFE INSURANCE.— See ante. Insurance, p. 674. LIMITATION OF ACTIONS AND ADVERSE POSSESSION. III. Nature, Purpose and Construction of Statutes of Limitation, 830. A. Theory of Statutes of Limitation. 830. B. As Affecting Remedy or Right, 830. IV. Constitutionality, 830. C. As Affecting Vested Rights, 830. D. As Denial of Due Process of Law, 830. V. Operation of Statute and Effect as Bar, 830. C. Effect, 830. 2. As Affecting Lien, 830. 3. On Title to Real Property, 83 L 4. Waiver, Repeal or Change of Law, 83 L VII. Periods of Limitation, 83 L B. Actions for Recovery of Title or Possession of Real Property (Ad- verse Possession), 831. 2. Ten Years, 831. VIII. Adverse Possession, 831. A. Nature and Requisites of Adverse Possession, 831. 5. Continuous Possession, 831. d. Recognition of Title of True Owner, 831. 6. Hostile and under Claim of Right, 831. a. In General, 831. (2) Claim of Exclusive Title or Ownership, 831. c. Color of Title, 832. 897-49. Right to enforce lien may be STON; VENDOR'S LIEN, lost under statute of limitations. — Diipree 898-1. Life termers. — See Finley z' Cal- T'. Mansur, 214 U. S. 161, 53 L. Ed. 950, 29 ifornia. 222 U. S. 28, 50 L. Ed. 75, 32 S Ct S. Ct. 548. See post, LIMITATION OF 13. See ante, CONSTITUTIONAL ACTIONS AND ADVERSE POSSES- LAW, p. 264. 828 Vol. VII. LIMITATION OF ACTIONS, ETC. (!) Definition and Essentials, 832. bb. Good Faith, 832. dd. Must Be under Instrument, Proceeding or Law, 832. fee) Patent or Grant, 832. (2) Office and Effect of Color of Title, and Extent of Possession, 832. (b) Extent of Adverse Possession, 832. bb. Possession under Color of Title, 832. (bb) Constructive Possession, 832. cc. Conflicting Titles and Possessions, 832. (cc) Tide Lands of City, 832. C. Effect of Adverse Possession, 832. 1. Adverse Possession as Giving Title, 832. b. To Lands, 832. (3) Native Titles in Philippine Islands, 832. IX. To What Proceedings Applicable, 833. B. In Equity, 833. 2. In Cases Cognizable Exclusively in Equity, 833. b. Trusts, 833. (T) Direct or Express Trusts, 833. X. Postponement, Arrest or Suspension of Running of Statute, 833. D. Suspension by Inability to Sue, 833. iy2. Injunction against Suit in Force, 833. E. Suspension by Commencement of Action, 833. 6. New Proceedings Taken under Act Superseding Old Action. 833. XI. Time from Which Statute Runs, 833. C. Actions for Recovery of Title or Possession of Real Property, S33. 2. Public Land Grants before Patent Issue, 833. a. Where Present Legal Title Has Passed, 833. b. Where Legal Title Has Not Passed, 833. 5. Rescissory Actions, 834. XIV. Evidence, 834. B. Presumptions and Burden of Proof, 834. 2. Burden of Proof, 834. CROSS REFERENCES. See the title Limitation of Actions and Adverse Possession, vol. 7, p. 900, and references there given. In addition, see ante, Appeal and Error, p. 34; Conspiracy, p. 256; Crimi- nal Law, p. 434. As to limitation of action to recover usurious interest paid national bank, see ante. Banks and Banking, p. 184; post. Venue. As to special plea of lim- itation in bar to prosecution, see ante. Appeal and Error, p. 34; Criminal Law, p. 434. As to limitation of prosecution for conspiracy, see ante, Conspiracy, p. 256. As to federal courts following state decisions upon state statutes of limita- tion, see ante. Courts, p. 398. As to holding suit barred by limitation not a fed- eral ground, see ante. Appeal and Error, p. 34. As to time for filing motion for new trial, see post. New Trial. As to limitations for appeals in bankruptcy vcases, see ante. Bankruptcy, p. 168. 829 908-913 LIMITATION OF ACTIONS. ETC. Vol. VII. III. Nature, Purpose and Construction of Statutes of Limitation. A. Theory of Statutes of Limitation. — It can not be admitted for a mo- ment that for a debtor to rely upon the statute of limitation is inequitable of itself, without some special circumstance, wanting here. That would be for courts, and, in this case, courts of a different power, to undertake to declare wrong or discreditable what the proper authority, the legislature of the state,, had declared right.^^ B. As Affecting Remedy or Right. — Statutes of limitation, with regard to land, at least, which can not escape from the jurisdiction, generally are held to affect the right, even if in terms only directed against the remedy. ^^^^ Thus a statute which in form only bars suits to annul patents granted by the United States must be taken to mean the patent is to be held good, and is to have the same effect against the United States that it would have had if it had been valid in the first place.^^^ IV. Constitutionality. C. As Affecting Vested Rights. — See note 28. D. As Denial of Due Process of Law. — There is no denial of due process of law in the provisions of the Kentucky Act of March 15, 1906, art. 3, under which the forfeiture of land titles to the state, as the result of proper proceed- ings and after due notice to the owner of the title, who is in default for pay- ment of taxes, is to inure to the benefit of adverse claimants occupying and paying taxes upon the land, and not in default.^ ^^ • V. Operation of Statute and Effect as Bar. C. Effect — 2. As Affecting Lien. — An action to recover a debt may be 908-8a. Theory of statute.— Dupree v. Mansur, 2] 4 U. S. 161, 53 L. Ed. 9.50, 2?' S. Ct. 548. 909-lla. As affecting remedy or right. — United States v. Chandler-Dunbar, etc., Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579, citing Leffingwell v. Warren, 2 Black 599, 605, 17 L. Ed. 261; Sharon :■. Tucker, 144 U. S. 533, 36 L. Ed. 532, 12 S. Ct. 720; Davis ?;. Mills, 194 U. S. 451, 457, 48 L. Ed. 10G7, 24 S. Ct. 692. 909-llb. Patent to land.— United States f. Chandler-Dunbar, etc.. Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. citing United States z'. Winona, etc., R. Co., 165 U. S. 463, 476, 41 L. Ed. 789, 17 S. Ct. 368. A patent from the United States, in- valid when made, after five years without attack, must be deemed to have the same effect as against the United States in a suit to remove a cloud on title as though it were valid when issued, in view of the Act of March 3. 1891 (26 Stat, at L. 1099, chap. 561), § 8, although this section in form only bars suits to annul the patent. United States v. Chandler-Dunbar, etc.. Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. See post, PUBLIC LANDS; QUIETING TITLES. "The patent had been issued in 1883 by the president in due form and in the regular way. Whether or not he had au- thoiity to make it or to validate it when made, since the interest of the United States was the only one concerned. We can see no reason for doubting that the statute, which is the voice of the United States, had that effect. It is said thai Lhe instrument was void and hence was no patent. But the statute presupposes an inslrument that might be declared void. When it refers to 'any patent heretofore issued,' it describes the purport and source of the docttment, not its legal ef- fect. If the act were confined to valid patents it would be almost or quite with- out use. Leffingwell v.. Warren, 2 Black 599, 17 L. Ed. 261." United States v. Chandler-Dunbar, etc , Power Co., 209 U. S. 447, 52 L Ed. 881, 28 S- Ct. 579. 913-28. As affecting vested rights. — "Al- though the time in which to commence action may be shortened and made appli- cable to causes of action already accrued, provided a reasonable time is left in which such actions may be commenced (Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365; Wilson v. Iseminger, 185 U. S. .55, 46 L. Ed. 804, 22 S. Ct. 573), yet that is a different principle from taking away absolutely a present right to sue until a period of time, measured possibly by years, shall have elapsed.'' United States Fidelity, etc., Co. v. United States, 209 U. S. 306, 52 L. Ed. 804. 28 S. Ct. 537, 540. 913-31a. As denial of due process of law. — Kentucky Union Co v. Common- wealth, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. 830 Vol. VII. LIMITATION OF ACTIONS, ETC. 921-943 barred by limitations, yet the right to foreclose a lien or mortgage given as se- curity may still exist. "^"^ By the law of Texas the security is incident to the note or debt and does not warrant a foreclosure when the note or debt does not warrant a judgment.^o** This is not a matter of procedure or jurisdiction, but of substantive rights con- cerning land. It should be governed by the decisions of the state where the land lies.6«'= 3. On Title to Real Property. — See ante, "As Affecting Remedv or Right," III, B. 4. Waiver, Repeal or Change of Law. — Estoppel. — See note 63. VII. Periods of Limitation. B. Actions for Recovery of Title or Possession of Real Property (Ad- verse Possession) — 2. Ten Years. — The period of prescription under the code of procedure in civil actions of Aug. 10. 1901, No. 190, § 40, 1 Pub. Laws of Philippine Commissions 378, 384, was ten years.'''^^ VIII. Adverse Possession. A. Nature and Requisites of Adverse Possession — 5. Continuous Pos- session — d. Recognition of Title of True Owner. — The recognition or acknowl- edgment of a superior title by a person in adverse possession of land interrupts the nmning of the statute of limitations.^^'' 6. Hostile and under Claim oe Right — a. In General — (2) Claim of Ex- clusive Title or Oivnership. — See note 55. 921-60a. Dupree v. :\Iansur, 214 U. S. IGl, .53 L. Ed. 950, 29 S. Ct. 548. 921-60b. Texas. — "It is established law in Texas that, when a debt is barred, an action to foreclose a lien or mortgage given as security for it is barred also. Hale V. Baker, 60 Tex. 217; Goldfrank ?'. Young, 64 Tex. 432, 434; Stephens v. Matthews. 69 Tex. 341, 344, 6 S. W. 567; Davis V. Andrews. 88 Tex. 524, 30 S. W. 432, 32 S. W. 513; Brown v. Gates, 99 Tex. 133, 87 S. W. 1149." Dupree v. Mansur, 214 U. S. 101, 53 L. Ed. 950, 29 S. Ct. 548. 921-60C. Dupree v. Mansur, 214 U. S. 161, 53 L. Ed. 950, 29 S. Ct. 548, citing Slide, etc.. Gold IMines v. Seymour, 153 U. S. 509, 516, 38 L. Ed. 802, 14 S. Ct. 842. A federal court of equity will apply, ^'n a suit to quiet title as against the pur- chaser of notes for the purchase price of which a vendor's lien has attached, the rule of local law that, when a debt is barred by the statute of limitations, an action to foreclose a lien or mortgage given as security for the debt is also barred. Dupree v. Mansur, 214 U. S. 161, 53 L. Ed. 950, 29 S. Ct. 548. 921-63. Estoppel of federal government to rely on statute of limitation.— See ante, ESTOPPEL, p. 5.53. _ Estoppel of municipality to assert dor- mancy of judgment. — See ante, ESTOP- PEL, p. 553. 925-78a. Reavis v. Fianza, 215 U. S. 16, 54 L. Ed. 72, 30 S. Ct. 1; Tiglao v. Insular Government, 215 U. S. 410, 54 L. Ed. 257, 30 S. Ct. 129. 942-48a. Recognition of title of true owner. — An attempt to acquire title froin the United States under -Act March 3, 1887, c. 376, 24 Stat. 556 [U. S. Comp. St. 1901, p. 1595], enacted in behalf of bona fide purchasers of land excepted from the operation of a railroad land grant, with the view of removing a cloud upon the title, is not an act of recognition or ac- knowledsrment of a superior title, either in the United States or in the railroad company, which can operate to interrupt the continuity of an adverse possession; and much less can it be held to have de- stroj'ed a title which had already become perfect by the expiration of the statutory period for acquiring legal title by adverse possession. Missouri Vallev Land Co. t' Wiese, 208 U. S. 234, 52 L. 'Ed. 466, 28 S Ct. 294, affirming judgment in Wiese v Union Pac. Ry. Co. (Neb. 1906\ 108 N W. 175; ^Missouri Valley Land Co. Wrich. 208 U. S. 250. 52 L. Ed. 473, 28 S. Ct. 299. affirming judgment in Wrich V. Union Pac. Ry Co. (Neb. 1906), 108 N. W. 178. 943-55. Mining claim in Philippine Islands. — The possession and working of a mining claim in the Philippine Islands for the time requisite, under the Act of July 1, 1902, § 45, in order to establish a right to patent, need not have been under a claim of title. Reavis v. Fianza, 215 U. S. 16, 54 L. Ed. 72, 30 S. Ct. 1. See post, MINES AND MINERALS; PUBLIC LANDS. 831 954-974 LIMITATION OP ACTIONS, ETC. Vol. VII. c. Color of Title — (1) Definition and Essentials — bb. Good Faith. — See note 80. dd. Must Be under Instrument, Proceeding or Law — (ee) Patent or Grant. — See ante, "Good Faith," VIII, A, 6, c, (1), bb. (2) Office and Effect of Color of Title, and E.rtent of Possession — (b) £.^-- tent of Adverse Possession — bb. Possession under Color of Title — (bb) Con- structive Possession. — See post, "Tide Lands of City," VIII, A, 6, c, (2), (b), cc, (cc). cc. Conflicting Titles and Possessions — (cc) Tide Lands of City. — A partial actual possession of alleged tide lands actually belonging to a city can not be ex- tended by construction to the boundaries of the occupant's claim, under the state possessory act (St. 1852. p. 158)."*^^ C. Effect of Adverse Possession — 1. Advkrse Possession as Giving Title — b. To Lands. — See ante, "As Affecting Remedy or Right," III, B. (3) Native Titles in Philippine Islands. — Every presumption should be in- dulged against the United States claiming title to land in the province of Ben- guet in the Philippine Islands, which, for more than fifty years prior to the treaty of peace with Spain of April 11, 1899 (30 Stat, at L. 1754), has been held by the present native Igorot holder and his ancestors under claim of private ownership.-^^^ 954-80. Unauthorized grant in Philip- pine Island. — In Tiglao z'. Insular Govern- ment. 215 U. S. 410, 54 L. Ed. 257, 30 S. Ct. 129, it was held that a wholly unau- thorized .g'rant of puldic land in the Philippine Islands by subordinate Spanish officials, showing its invalidity on its face, can not serve as the basis of a prescrip- tive title under the Spanish royal decree of June 25, 1880, under which a prescrip- tive right can be founded on possession for ten j'ears under just title and in good faith. He was chargeable with knowledge that he had acquired no legal rights. "We assume, for instance, that if a private person in possession of Crown lands, seeming to be the owner, executed a formally valid conveyance under which his grantee held, supposing his title good, possession for ten years might create a indisputable right. But if the public facts known by the grantees showed that the conveyance to him was void, we under- stand that it would not constitute a start- ing point for the running of time, and that the grantee's actual belief would not help his case. Indeed, in such a 'case he would not be regarded as holding in good faith, within the requirement of the de- cree, because a man is not allowed to take advantage of his ignorance of law. The subject is fully expounded in Hayes V. United States, 170 U. S. 637, 650. 42 L. Ed. 1174, 18 S. Ct. 735." Tiglao v. In- sular Government, 215 U. S. 410, 54 L. Ed. 257, 30 S. Ct. 129. 967-20a. United Land Ass'n v. Abra- hams, 208 U. S. 614, 52 L. Ed. 645, 28 S. Ct. 569, affirming 139 Col. 370, 69 Pac. 1064. 974-38a. Native titles in Philippine Islands. — Carino v. Insular Government, 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. A native title to land in the province of Benguet in the Philippine Islands, which, for more than fifty years prior to the treaty of peace with Spain of April 11, 1899, a native Igorot and his ancestors have held in accordance with Igorot cus- tom, as private property, should be recognized by the insular government, al- though no document of title has issued from the Spanish crown, where, even if tried by the law of Spain, without refer- ence to the efifect of the change of sov- ereignty and of the declaration of purpose and safeguards embodied in the Organic Act of July 1, 1902 (32 Stat, at L. 691, chap. 1369), it is not clear that he is not the owner. Carino v. Insular Govern- ment, 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. An adverse claim which will defeat the right to a patent under the Act of July 1, 1902, § 45, when natives and their an- cestors have held possession and worked mining claims in the Philippine Islands for the period required by that section, can not be based upon entry and staking of claim and filing notice of location, where such possession was continuous down to the bringing of suit to restrain the person relying upon such acts as amounting to an adverse claim from set- ting up title or interfering with the claims. Reavis v. Fianza, 215 U. S. 16, 54 L. Ed. 72, 30 S. Ct. 1. "It is not disputed that this section ap- plies to possession maintained for a suffi- cient time before and until the statute went into efifect. See Soper v. Lawrence Bros. Co., 201 U. S. 359, 50 L. Ed. 788, 26 S. Ct. 473. The period of prescription at that time was ten years. Code of Pro- cedure in Civil Actions. August 7, 1901. No. 190, § 40. 1 Pub. Laws of Philippine 832 Vol. VII. LIMITATIOX OF ACTIOXS, ETC. 984-1022 IX. To What Proceedings Applicable. B. In Equity — 2. Ix Cases Cognizable Exclusively ix Equity — b. Trusts — (1) Direct or Express Trusts. — See note 67. X. Postponement, Arrest or Suspension of Running of Statute. D. Suspension by Inability to Sue— 1>^. Ixjuxctiox agaixst Suit in Force. — The statute does not run during the time an injunction is in force, sued out by the adverse party and afterwards dissolved.^^^ E. Suspension by Commencement of Action — 6. Xew Proceedings Takex under Act SupErsedixg Old Actiox. — A proceeding for the reassess- ment of benefits upon lots benefited by the extension of Eleventh Street, in the District of Columbia, taken under the Act of June 6, 1900, superseding the Act of Alarch 3, 1899, can not be regarded as a new action, for the purpose of apply- ing the statute of limitations, but must be deemed a continuance of the old pro- ceeding.'*^^ XL Time from Which Statute Runs. C. Actions for Recovery of Title or Possession of Real Property — 2. Public Laxd Graxts before Patext Issue — a. JJ'herc Present Legal Title Has Passed. — See note 10. b. Uliere Legal Title Has Xot Passed. — Against Homesteader. — See riote 20. Commission 378, 384. Therefore, as the United States had not had the sovereignty of the Philippine Islands for ten years, the section, notwithstanding its siini- larity to Rev. Stat., § 2332, U. S. Comp. Stat. 1901, p. 1433, must be taken to refer to the conditions as they were before the United States had come into power. Es- pecially must it be supposed to have had in view the natives of the islands, and to have intended to do liberal justice to them. By § 16. their occupancy of public lands is respected and made to confer rights. In dealing with an Igorot of the province of Benguet, it would be absurd to expect technical niceties, and the courts below were quite justified in their liberal mode of dealing with the evidence of possession and the possibly rather gradual settling of the precise boundaries of the appellee's claim. See Carino z\ Insular Government. 212 U. S. 449, .53 L. Ed. 594. 29 S. Ct. 334." Reavis t: Fianza, 215 U. S. 16. 54 L. Ed. 72, 30 S. Ct. 1. See ante. "Claim of Exclusive Title or Ownership," VIII, A. 6, a, (2). 984-67. A mere change in the course of studies, contrary to the condition on which a Protestant Mission was trans- ferred by the American Board of Com- missioners for Foreign Missions to the Hawaiian government, viz., that the gov- ernment should continue the same as an institution for the cultivation of sound literature and solid science, and should teach no religious tenet or doctrine con- trary to those theretofore inculcated by the mission, as set forth in a confession of faith, the institution, in case of breach of such condition, to revert to the mission with an alternative, at the election of the 12 U S Enc— 53 833 government, to pay a stipulated sum, does not instantl}' operate to make the grantor of the property a claimant for money against whom the statute of limitations immediatel}' begins to run. Lowrey z'. Territory of Hawaii. 215 U. S. 554. 54 L. Ed. 325. 30 S. Ct. 209. 990-88a. Beadles r. Smyser. 209 U. S. 393, 52 L. Ed. 849, 854, 28 S. Ct. 522. 1010-76a. New proceedings taken under statute superseding old action. — Columbia Heights Realty Co. z: Rudolph. 217 U. S. 547, 54 L. Ed. ST7, 30 S. Ct. 581. 1018-10. Grant in aid of branch railroad. — The grant of lands within place limits, made by the Act of July 1, 1862. § 14, as amended by the Act of July 2, 1864, § 17. in aid of a branch railroad, to be con- structed on the same terms and conditions as the main line, is not taken out of the general rule that the grant is one in praesenti. and that, on filing the map of definite location, the title passes to the railway company so that it can be held adversely, even as against such company, because the road which might build the liranch was not, or may not have been, in existence at the time of the passage of the amendatory act. nor because of its provision that said company shall be ''en- titled to receive" alternate sections of the land for ten miles in width on each side of the way, along the whole length of the branch, nor because of the supposed limited character of the forfeiture pro- vided for failure to complete the branch. Missouri Vallev Land Co. z\ Wiese. 208 U. S. 234, 52 L'. Ed. 466, 28 S. Ct. 294. 1022-20. Against homestead laws. — A state statute of limitations for the recov- ery of real property does not begin to 1023-1052 LIS PENDENS. Vol. VII. 5. Rescissory Actions. — The sisters of a decedent, who, under Porto Rico Civ. Code, art. 811, are entitled to any part of their brother's estate which his widow may inherit through her daughter, who was his sole heir, had a sufficient interest, upon the death of the daughter intestate and without descendants, to enable them to bring an action to set aside a so-called partition of their brother's estate between the widow and the daughter, so as to start running the four years' limitation prescribed by articles 1076 and 1301 for rescissory actions and actions for nullity. ^^^ XIV, Evidence. B. Presumptions and Burden of Proof — 2. Burden of Proof. — See note 7. LIMITATION OF LIABILITY.— See ante. Carriers, p. 216; post, Ships AND Shipping: Telegraphs and Telephones. LIMITED LIABILITY ACT.— See post, Ships and Shipping. LIQUORS,f^See ante. Intoxicating Liquors, p. 803. LIS PENDENS. I. Doctrine of Lis Pendens, 834. A. Statement of Rule, 834. C. Requisites and Extent, 834. 5. Recordation, 834. IV. Property within the Rule of Lis Pendens, 835. B. Personal Property, 835. 2. Exceptions, 835. a. Negotiable Securities, 835. CROSS REFERENCES. See the title Lis Pendens, vol. 7, p. 1051, and references there given. I. Doctrine of Lis Pendens. A. Statement of Rule. — See note 1. C. Requisites and Extent — 5. Recordation. — Failure of Clerk to Index Properly. — The failure of the clerk properly to index amended declarations in ejectment covering additional property, which were duly filed in his office, does not excuse the failure of a searcher to examine the files, especially where there run in favor of a railway company as less satisfied by a preponderance of evi- against a settler, under the homestead dence that they had "clearly" proved it. laws of the United States, until patent The slight over-emphasis in the word has issued. Judgment, Slaght v. North- "clearly," if it was such, is not a suffi- ern Pac. Ry. Co. (1905), 81 P. 1062, 39 cient ground for disturbing the verdict. Wash. 576, afifirmed. Northern Pac. R. See Ward v. Cochran, 150 U. S. 597, 606, Co. V. Slaght, 205 U. S. 122. 51 L. Ed. 37 L. Ed. 1195, 14 S. Ct. 230; Spreckels v. 738, 27 S. Ct. 442; S. C, 205 U. S. 134, 51 Brown, 212 U. S. 208, 53 L. Ed. 476, 29 S. L. Ed. 742, 27 S. Ct. 446. Ct. 256. 1023-23a. Rescissory actions. — Maytin 1052-1. Statement of rule. — A purchaser V. Vela, 216 U. S. 598, 54 L. Ed. 632, 30 . of real property pendente lite stands in S. Ct. 439. no better position than its vendor, the 1047-7. The plaintiffs in error set up complainant in such suit. Lewers v. the defense of adverse possession. They Atcherly, 222 U. S. 285, 56 L. Ed. 202, 32 admit that the burden was upon them to S. Ct. 94. See post, VENDOR AND- prove it, but assign as error that the jury PURCHASER, was instructed to find against them im- 834 Vol. VII. LOST I X ST RUM EXT S AND RECORDS. 1052-1058 is no evidence that such person was misled by the failure of the clerk to index them properly. ^^ IV. Property within the Rule of Lis Pendens. B. Personal Property — 2. Exceptioxs — a. Negotiable Securities. — See ante. Bills, Notes and Checks, p. 204. As to corporate bonds, see post, Municipal, County, State and Federal Securities. Purchaser a Corporation Formed in Another State to Evade Jurisdic- tion of Court in Pending Suit. — The doctrine of lis pendens applies to a cor- poration to which the defendant, in a suit brought in a federal court sitting in ■another state, conveys his water rights within the state in an interstate stream, which are the subject of the litigation, with the intent to evade the jurisdiction of that court. ^''^ LIVE ANIMALS.— See ante, Animals, p. 27. LIVE STOCK.— See ante. Animals, p. 27; Carriers, p. 216. LOAN AND DISCOUNT.— See ante, Banks and Banking, p. 184. LOANS. — See the title Loans, vol. 7. p. 1056. and references there given. LOAN, TRUST AND SAFE DEPOSIT COMPANIES.— See the title Loan, Trust and Safe Deposit Companies, vol. 7, p. 1057, and references there given. LOCATE— LOCATION.— See note 1. LOCATOR. — See post, ]**Iines and Minerals; Public Lands. LODE MINING.— See post. Mines and Minerals. LOGS AND LOGGING.— See the title Logs and Logging, vol. 7, p. 1059, and references there given. In addition, see ante. Appeal and Error, p. 34; Courts, p. 398; post, Navigable Waters. As to whether or not construction of log boom in a navigable stream lying entirely within a state is authorized by a state statute, not being a federal question, see ante, Appeal and Error, p. 34. LOOKOUT.— See ante. Collision, p. 243. LOST INSTRUMENTS AND RECORDS.— See the title Lost Instru- ments AND Records, vol. 7. p. 1064, and references there given. 1052-8a. Failure to index properly. — vation at the instant when the Act of Feb- Decree (1903), 22 App. D. C. ."68, affirmed. . ruary 28. 1891, amending the General Al- Armstrong v. Ashley^ 204 U. S. 272. .51 L. lotment Act of February 8, 1887, was Ed. 482, 27 S. Ct. 270. passed, in order to avail himself of the 1054-17a. Conveyance to corporation benefit of the provision of the latter act formed to evade jurisdiction. — (1910) giving to each Indian located thereon ]4, Rickey Land. etc.. Co. v. Miller, 218 U. S. section of land. The word located of it- 258, .54 L. Ed. 10.32, 31 S. Ct. 11. affirming self it has no reference to lime. It has decrees (1907), 152 F. 11, 22, 81 C. C. A. reference entirely to place, and is used to 207, 218. designate upon what Indians the powers Quaere whether in such case the cor- given by the act, when exercised, should poration would not be bound by the lis operate — that is, "to each Indian located" pendens even if it were a purchaser with- on the reservation. The act was a part of out notice. Compare Whitside v. Hasel- a scheme of legislation to have existence ton, 110 U. S. 296, 28 L. Ed. 152, 4 S. Ct. and continuity of action until its purpose 1 ; Rickey Land, etc.. Co. v. Miller, 218 U. should be completely fulfilled. Fairbanks S. 258, 263, 54 L. Ed. 1032, 31 S. Ct. 11. V. United States, 223 U. S. 215. 56 L. Ed. 1058-1. Located on reservation.— An 409, 32 S. Ct. 292. See ante. INDIANS, p. Indian need not have l)cen on the reser- 641; post, PUBLIC LANDS. 835 1072 LOIF WATER. Vol. VII. LOTTERIES. III. Regulation and Prohibition, 836. C. "Gift Enterprises" in the District of Columbia, 836. CROSS REFERENCES. See the title Lotteries, vol. 7, p. 1070, and references there given. III. Regulation and Prohibition. C. "Gift Enterprises" in the District of Columbia. — Rev. St. (Dist. of Col.), §§ 1176, 1177, making it a criminal offense to engage in this District in the business of conducting a gift enterprise, as defined in the act of the late leg- islative assembly of this district, of August 23, 1871, is constitutional. ^^^ LOW WATER.— See ante. Boundaries, p. 206; post, Navigable Waters. 1072-lla. Constitutionality of statute — Gift enterprise laws. — District of Colum- bia f. Kraft, 35 App. D. C. 253, writ of certiorari denied Kraft v. District of Co- luinbia, 218 U. S. 673, 54 L. Ed. 1205, 31 S. Ct. 223. "Gift enterprise" defined. — A "gift en- terprise" has been defined to be "a scheme for the division of distribution of certain articles of property, to be de- termined by chance, amongst those who have taken shares in the scheme." Bouvier's Law Dictionary (Rawle's Rev.), p. 884; Black's Law* Dictionary, p. 539; Anderson's Law Dictionary, p. 488. See, also. Lohman v. State, 81 Indiana 15, 17; Winston v. Beeson, 135 N. C. 271, 279; Randle v. State, 42 Texas, 580; Matter of Gregory, 219 U. S. 210, 214, 55 L. Ed. 184, 31 S. Ct. 143. Construction of statute. — The definition of a gift enterprise as the business of selling merchandise, coupled with a promise to give any other article in con- sideration of the purchase, which is made by Laws D. C. 1871-72, pt. 2. pp. 96, 97, licensing various trades and businesses, was not imported into Rev. St. D. C, § 1177, making it a crime in any manner to engage in any gift enterprise business in the district, by the provisions of § 1176, disapproving and repealing the earlier legislation for the licensing of gift enter- prises, and declaring it thereafter to be unlawful for any person or persons to engage in said business in any luanner, as defined in the repealed act or otherwise. Matter of Gregory, 219 U. S. 210, 55 L. Ed. 184, 31 S. Ct. 143. A trading stamp company which sells its stamps to merchants, whose names it prints in its directory of merchants, for $3.50 for 1,000, which stamps the mer- chants deliver to their customers, who have the right to redeem, them of the company in articles of merchandise only when presented in books containing 990 stamps, and also to ledeem a single stamp for a pen, and ten or more for cash at the rate of $1 per 1,000, violates §§ 117G, 1177, Rev. St. (Dist. of Col.) making it a criminal oflfense to engage in the business of conducting a gift enterprise as defined in the act of the late legislative assembly of this district of August 23, 1871. District of Columbia v. Gregory, 35 App. D. C. 271, writ of certiorari denied Gregory v. District of Columbia. 218 U. S. 673, 54 L. Ed. 1205, 31 S. Ct. 223. An enterprise is not a bona fide co- operative association, but is a gift enter- prise, as defined by the act of the late legislative assembly of this District of August 23, 1871, and as prohibited by Rev. St. (Dist. of Col.), §§ 1176, 1177, where it consists of a corporation with a capital stock held exclusively by its officers and directors, but having so-called members, each of whom pays annually a fee of 25 cents for the right to receive trading stamps on his purchases from merchants, the names of whom the corporation pub- lishes, under contract, in its directory of merchants w'ho will deliver stamps with purchases, and to whom it sells stamps for $3.50 per 1,000 stamps, the stamps having a redemption value of $2 per 1,000, thus realizing to the corporation a profit of $1.50 per 1,000, no part of which profit is received by the members, who, how- ever, receive back each year the member- ship fees, less the cost of ol)taining new members, and have the privilege of re- deeming their stamps at the offices of the corporation in cash or goods at the rate of $2 per 1,000, in any quantity not less than five. District of Columbia v. Kraft, 35 App. D. C. 253. writ of certiorari de- nied Kraft z'. District of Columbia, 218 U. S. 673, 54 L. Ed. 1205. 31 S. Ct. 223. 836 Vol. VII MALICIOUS PROSECUTION. 1076-1084 MACHINE.— See note 5. MAGISTRATE. — The word magistrate is not confined to justices of the peace, and other persons, ejusdem generis, who exercise general judicial pow- ers, but includes others whose duties are strictly executive.*^ MAIL. — See post, Postai, Laws. MALICE. — See ante. Criminal Law, p. 434; Homicide, p. 619. MALICIOUS MISCHIEF.— See the title ^Iaucious .Mischief, vol. 7, p. 1079, and references there given. MALICIOUS PROSECUTION. III. Pleading and Practice, ^Z7. C. Province of Court and Jury, 837. 1. Probable Cause, ?:2)7. IV. Evidence, 837. A. Burden of Proof, 837. B. Proof of Malice and Want of Probable Cause, 837. 3. Sufficiency of Evidence, 837. CROSS REFERENCES. See the title Malicious Prosecution, vol. 7, p. 1080, and references there given. III. Pleading and Practice. C. Province of Court and Jury — 1. Probable Cause. — See note 25. IV. Evidence. A. Burden of Proof. — The burden of proving malice and want of probable cause rests upon the plaintiff in an action for malicious prosecution. ^s^ B. Proof of Malice and Want of Probable Cause — 3. Sufficiexcy of Evi- dence. — A prima facie showing of want of probable cause for swearing out a 1076-5. Machine. — Expanded Metal Co. a magistrate within the statute referred V. Bradford. 214 U. S. 366, 384. 53 L. Ed. to; 'for,' said he, 'I know of no other defini- 1034. 29 S. Ct. 652. See post, PATENTS. tion of the term magistrate than that he 1077-a. Magistrate. — 'Tn a general sense is a person clothed with power as a pub- a magistrate is a pubHc civil officer, pos- lie civil officer.' Citing 1 Black. Com. 146." sessing such power, legislative, executive Compton v. Alabama, 214 U. S. 1, 7, 53 L. or judicial, as the government appointing Ed. 885, 29 S. Ct. 605. him may ordain. In a narrow sense, a Notary public as a magistrate. — An af- magistrate is regarded — perhaps, com- fidavit made before a notary public who, monly regarded — as an inferior judicial imder Ga. Code 1895, vol. 2, p. 982; Id., officer, such as a justice of the peace. 2 vol. 3, p. 93, is ex officio a justice of the Bouvier Law Die. 92. But the appellation peace, satisfied the requirement of the of magistrate 'is not confined to justices provisions of United States Rev. Stats., of the peace, and other persons, ejusdem § 5270, governing interstate extradition, generis, who exercised general judicial if such affidavit be made before a magis- powers; but it includes others whose trate. Compton v. Alabama, 214 U. S 1, duties are strictly executive.' Anderson's 53 L. Ed. 885, 29 S. Ct. 605. Dictionary of Law, 643, 644. In Gordon 1083-25. In clear cases the question of V. Hobart, 2 Sumner 401, 405, the question want of probable cause for instituting a was whether an alderman of Philadelphia, criminal prosecution is one of law for the who was invested by law with all the court. Brown v. Selfridge, 224 U. S. 189, powers and authority of a justice of the 56 L. Ed. 727, 32 S. Ct. 444. peace, was not to be deemed in the strict- 1084-38a. Burden of proving malice and est sense a magistrate, within the mean- want of probable cause. — Brown z'. Self- ing of a statute relating to the acknowl- ridge, 224 U. S. 189, 56 L. Ed. 727, 32 S. edgment of deeds 'before a justice of the Ct. 444. See, also, post, PRESUMP- peace or magistrate.' Mr. Justice SLory TIOXS AXD BURDEN OF PROOF, said that the alderman was to be deemed 837 1085 MANDAMUS. Vol. VII I. search warrant charging that certain property stolen by persons unknown was concealed upon defendant's premises is not made by evidence as to the prosecu- tion and the circumstances under which the unsuccessful search was made and the dismissal of the proceedings, together with testimony tending to show de- fendant's good reputation for honesty and integrity, and the injury to her health and occupation. ■^s^ MANDAMUS. II. Nature, 839. C. Extraordinary Remedy, 839. F. AA'rit of Right, 839. VII. Jurisdiction, 839. F. Of United States Courts, 839. 5. Of Supreme Court, 839. 6. Of Circuit Court of Appeals, 840. VIII. Grounds for Mandamus, 840. D. As Dependent upon Nature of Rights to Be Enforced, 840. 1. In General, 840. 2. Doubtful Rights, 840. E. As Dependent upon Nature of Duty to Be Enforced, 840. 7. Ministerial Duties, 840. a. General Rule, 840. c. What Are Ministerial Duties, 840. 8. Discretional Duties, 840. a. To Control Discretion, 840. c. What Are Discretional Duties, 840. (1) In General, 840. G. As Dependent upon Existence of Other Remedy, 840. 1. General Rule, 840. 3. What Remedies Sufficient, 841. d. Appeal or Error, 841. K. Mandamus to Courts, 841. ' 5. Matters of Pleading and Practice, 841. . e. Dismissal and Nonsuit, 841. (2) For Want of Jurisdiction, 841. k. Judgment, 841. (5) A'acating, 841. (a) In General, 841. o. Review, 841. (1) Proceedings in Lower Court, 841. 6. In Particular Proceedings, 841. j. Removal of Causes, 841. (2) To Federal Court, 841. (b) To Remand Cause, 841. aa. In General, 841. L. Executive and Ministerial Officers of Government, 843. 6. Officers of United States, 843. c. Heads of Departments, 843. (3) Secretary of Treasury, 843. 1085-48a. Evidence not making out a cause. — Brown v. Selfridge, 224 U. S. 189, prima facie showing of want of probable 56 L- Ed. 727, 32 S. Ct. 444. 838 Vol. MIL MAX DAM US. 11-16 (7) Secretary of Interior, 8-t3. (a) In General, 843. d. Subordinate Officers, 843. (4) Land Officers, 843. (a) In General, 843. (c) Delivery of Patent, 844. ]\L Mandamus to Public Corporations. 844. 3. Enforcement of Alunicipal Obligations, 844. b. Contracts, 844. (4) Satisfied by Levy, 844. 4. Levy and Collection of Taxes, 844. r. Excessive Levies, 844. X. Mandamus to Private Corporations. 844. 4. To Railroads. 844. h. To Furnish Cars, 844. IX. Procedure, 844. D. Prerequisites, 844. L Demand. 844. 3. Exhausting Other Remedies. 845. E. Time of Instituting Proceedings. 845. 2. Limitations or Laches, 845. F. Parties, 845. 2. Respondents. 845. e. Public Corporations. 845. J. Alternative \\'rit. 845. 10. 'Hearing and Determination. 845. d. Extent of Inquiry. 845. (3) To Matters Determined by Judgment. 845. CROSS REFERENCES. See the title AIaxdamus, vol. 8, p. 1, and references there given. In addition, see ante. Appeal and Error, p. 34: Exceptioxs, Bill of, and Statement of Facts on Appeal, p. 559; Interstate and Foreign Commerce, p. 689. II. Nature. C. Extraordinary Remedy. — See note 9. F. Writ of Right.— See note 22. VII. Jurisdiction. F. Of United States Courts — 5. Of Supreme Court. — See note 54. 11-9. Extraordinary remedy. — '"The writ 16-54. Of supreme court. — "Authority of mandamus was introduced to supple- to issue writs of mandamus to any courts ment the existing jurisdiction of the appointed under the authority of the courts and to afford relief in extraordinary United States was given to this court by cases where the law presents no adequate a provision in the original judiciary act, remedy." In re Winn, 213 U. S. 458, 466, which now appears in § 688 of the Re- 53 L. Ed. 873, 29 S. Ct. 515. vised Statutes. A writ of mandamus is- 12-22. Writ of right. — Mandamus is not sued under this provision is for the pur- a writ of right. It issues to remedy a pose of revising and correcting proceed- wrong, not to promote one. and will not ings in a case already instituted in the be granted in aid of those who do not courts, and is deemed a part of the ap- come into court with clean hands. Turner pellate jurisdiction of this court, which is V. Fisher, 222 U. S. 204. 56 L. Ed. 165, 32 subject to such regulations as the con- S. Ct. 37. (Advance Sheet) 37. affirming gress shall make." In re Winn, 213 XT. S. judgment C1909), Same z'. Garfield, 33 458. 465, 53 L. Ed. 873. 29 S. Ct. 515. See, App. D. C. 195. also, ante. COURTS, p. 398. 839 18-33 MANDAMUS. Vol. VIIL 6. Of Circuit Court of x-\fpeals. — See note 72. VIII. Grounds for Mandamus. D. As Dependent upon Nature of Rights to Be Enforced — 1. In Gen- Fral. — See note 16. 2. Doubtful Rights. — See note 17. E. As Dependent upon Nature of Duty to Be Enforced — 7. Ministerial, Duties — a. General Rule. — See note i7 . c. What Are Ministerial Duties. — See post, "Secretary of Treasury," VIII, L, 6, c, (3). 8. Discretional Duties — a. To Control Discretion. — See note 40. c. What Are Discretional Deities — (1) In General.— See note 42. G. As Dependent upon Existence of Other Remedy— 1. General Rule. — See notes 49, 50. 18-72. Circuit courts of appeals. — A cir- cuit court of appeals to which is ad- dressed the mandate of the supreme court directing the remanding of the cause to the district court for further proceedings in conformity with the opinion upon which the mandate was based has no jurisdic- tion to compel the district court, by man- damus, to modify the decree entered in supposed compliance with such mandate, to conform to the view of the supreme court's opinion entertained by the cir- cuit court of appeals. Judgment, Ex parte Chicago Title & Trust Co. (1906), 146 F. 742, 77 C. C. A. 408, reversed. Ex parte First Nat. Bank, 207 U. S. 61, 52 L. Ed. 103. 28 S. Ct. 23. 26-16. Grounds for mandamus. — Proof that the enrollment of certain persons as Creek freedmen was procured by fraud defeats the right to compel the secretary of the interior by mandamus to restore their names to the rolls, even though such names have been arbitrarily stricken therefrom without the notice and oppor- tunity for hearing essential to due process of law. Turner v. Fisher, 222 U. S. 204, 56 L. Ed. 165, 32 S. Ct. 37, affirming judg- ment (1909), Same v. Garfield, 33 App. D. C. 195. Mandamus to compel the secretary of the interior to restore to the freedmen rolls of the Creek Nation the names of those who had been arbitrarily stricken therefrom without due process of law was properly refused where a general demur- rer to the answer, setting up that the original enrollment was procured by fraud, was overruled, and the relator, instead of replying, elected to stand on their demurrer. Turner z'. Fisher, 222 U. S. 204, 56 L. Ed. 165, 32 S. Ct. 37, affirm- ing judgment (1909), Same z'. Garfield, 33 App. D. C. 195. 26-17. Doubtful rights. — Any uncer- tainty or indefiniteness in an act of con- gress purporting to validate bonds issued by Santa Fe county, N. M., can not be urged to defeat mandamus to compel the levy of a tax to pay judgments upon such bonds, since whatever defense could have been set up to prevent the rendition of such judgments is not afterwards avail- able to prevent their enforcement. Judg- ment, Territory v. Board of Com'rs of Santa Fe County (N. M. 1907), 89 P. 252, affirmed. Commissioners v. Coler, 215 U. S. 296, 54 L. Ed. 202, 30 S. Ct. 111. 30-37. Ministerial duties. — Ballinger v. Frost, 216 U. S. 240, 54 L. Ed. 464, 30 S. Ct. 338. 31-40. To control discretion. — "Man- damus will not lie to control the judg- ment or judicial discretion of the court to which the writ is proposed to be di- rected. This is true where the judgment or judicial discretion is within the limits of jurisdiction, but not otherwise." In re Winn, 213 U. S. 458, 467, 53 L. Ed. 873, 29 S. Ct. 515. 32-42. What are discretional duties. — An adjudication of bankruptcy against a tunnel company on a petition alleging that such company was "engaged in the busi- ness of building and contracting"' calls for a decision of a question of fact, or of mixed law and fact, as to whether the principal business of such company was that of manufacturing, and contracting for such manufacturing, so as to be within the purview of Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423), as amended by Act Feb. 5, 1903, c. 487. § 3. 32 Stat. 797 (U. S. Comp. St. Supp. 1907, p. 1025), which de- cision can not be reviewed by mandamus. In re Riggs, 214 U. S. 9, 53 L. Ed. 887, 29 S. Ct. 598. "We rest our conclusion upon the proposition that the district court in ad- judicating the tunnel company a bank- rupt was called upon to decide, and did decide, a question of fact or of mixed law and fact, and that such adjudication can not be reviewed by proceedings in man- damus. In re Pollitz, 206 U. S. 323, 331, 51 L. Ed. 1081; In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515." In re Riggs, 214 U. S. 9, 14, 53 L. Ed. 887, 29 S. Ct. 598. 33-49. As dependent upon existence of 840 Vol. VIII. MANDAMUS. 33-54 3. What Remedies Sufficient — d. Appeal or Error. — See note 59. K. Mandamus to Courts — 5. Matters of Pleading and Practice — e. DisDiissal and Xoiisuit — (2) For IVaiit of Jurisdiction. — See note 6. k. Judgment — (5) J^acating — (a) In General. — Mandamus is the proper remedy where a federal circuit court has exceeded its power by vacating a judg- ment after the term.^"'' o. Revieiv — (1) Proceedings in Lower Court. — See ante, Appeal and Error, p. 34. 6. In Particular Proceedings — j. Removal of Causes — (2) To Federal Court — (b) To Remand Cause — aa. In General. — See note 10. other remedy. — Ex parte Harding, 219 U. S. 363, 55 L. Ed. 252, 31 S. Ct. 324; Ex parte Nebraska, 209 U. S. 436, 52 L. Ed. 876, 28 S. Ct. 581; Ex parte Oklahoma, 220 U. S. 191, 55 L. Ed. 431, 31 S. Ct. 426. 33-50. Remedy by appeal or writ of er- ror. — r^Iandamus is tlie proper remedy where a single federal judge, in violation of Act June 18, 1910, c. 309, § 17, 36 Stat. 557, vacates a temporary restraining or- der suspending on constitutional grounds the enforcement of a state statute by re- straining the action of a state officer there- under, and denies an application for an interlocutory injunction, since this sec- tion makes no provision for any appeal from an order of this character made by a single judge, and a right of appeal is not otherwise given by statute. Ex parte Metropolitan Water Co.. 220 U. S. 539, 55 L. Ed. 575, 31 S. Ct. 600. 34-59. What remedies sufficient. — It has frequently been held that mandamus from the federal supreme court would lie to compel a circuit court to remand a case to the state court where it is apparent from the record that the circuit court has no jurisdiction whatever of the case. In such a situation the remedy by man- damus is available, although the ag- grieved party may also be entitled to a writ of error or an appeal. Mandainus, it is true, never lies where the party pray- ing for it has another adequate remedy. In re Winn, 213 U. S. 458, 466, 53 L. Ed. 873. 29 S. Ct. 515. 41-6. Dismissal or nonsuit, and rein- statement. — Mandamus will not issue to compel a federal judge to dismiss, for lack of jurisdiction, a suit which he cer- tifies that he is satisfied involves a con- troversy within the jurisdiction of the court, brought by a nonresident trans- feree of shares in an insolvent corpora- tion, for the benefit of all the shareholders, to have a receiver appointed and the com- pany wound up. although the transfer, while absolute, was made when the cor- poration was insolvent, and for the pur- pose of bringing the suit. In re Cleland, 218 U. S. 120, 54 L. Ed. 962, 30 S. Ct. 647. 44-37a. Vacating. — In re Metropolitan Trust Co., 218 U. S. 312, 54 L. Ed. 1051, 31 S. Ct. 18. 54-10. Removal of causes. — A court which has general jurisdiction over the subject matter and the parties to a cause is competent to decide questions arising as to its jurisdiction, and therefore that such decisions are not open to collateral attack by mandamus. There is no sub- stantial foundation for the contention that this elementary doctrine has no applica- tion to decisions of courts of the United States refusing to remand causes to state courts, since there is nothing peculiar in an order refusing to remand which dif- ferentiates it from any other order or judgment of a court of the United States concerning its jurisdiction. Ex parte Harding, 219 U. S. 363, 369, 55 L. Ed. 252, 31 S. Ct. 324. The refusal of a federal circuit court to remand a civil cause to the state court whence it had been removed as present- ing a separable controversy between citi- zens of different states can not be re- viewed by mandamus, which may not be used to perform the office of an appeal or writ of error. Ex parte Harding, 219 U. S. 363. 55 L. Ed. 252, 31 S. Ct. 324. Conflicting decisions, — "Comprehen- sively considering the two lines of cases, one beginning with Ex parte Hoard. 105 U. S. 578, 26 L. Ed. 1176. and ending with Ex parte Gruetter, 217 U. S. 586, 54 L. Ed. 892, 30 S. Ct. 690, and the other begin- ning with Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667, and ending with In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515, it is to be conceded that they are apparently in conflict, both as to the as- sertion of power which one line upholds to view by mandamus the action of the United States circuit court in refusing to remand and the nonexistence of stich power which the other line of cases ex- pounds, and also as to much of the rea- soning in the opinions in some of the cases." Ex parte Harding, 219 U. S. 363, 376. 55 E. Ed. 252, 31 S. Ct. 324. Under these circumstances it becomes our plain duty, while not questioning the general doctrine announced in any of the cases, yet to disapprove and qualify Ex parte Wisner, 203 U. S. 449, 51 L. Ed. 264; In re Moore, 209 U. S. 490, 52 L. Ed. 904, 28 S. Ct. 585, 706, and In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515, to the extent that those cases applied the excep- 841 54 MANDAMUS. A'ol. VIII. tional rule of Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667, and thereby obscured the broad distinction between the gen- eral doctrine announced in Ex parte Hoard, 105 U. S. 578, 26 L. Ed. 1176, and the cases which have followed it and the exception established bv Virginia i'. Rives, 100 U. S. 313, 25 L Ed. 667, and the cases which have properly applied the doctrine of that case. Ex parte Harding, '219 U. S. 363, 379, 55 L. Ed. 252, 31 S. Ct. 324. "Where the removability of a case turned upon the question whether there was a separable controversy, to the trial of which certain of the defendants were not indispensable or necessary parties, it was held that the circuit court had juris- diction to determine the question of separa- bility; that its decision in that respect was the exercise of judicial discretion and could not be controlled by a writ of man- damus. In re PoUitz, 206 U. S. 323, 51 L. Ed. 1081. The same point was decided in Ex parte Nebraska, 209 U. S. 436, 52 L. Ed. 876, 28 S. Ct. 581. In each of these cases a distinction was made between it and a case where on the face of the record absolutely no jurisdiction has at- tached, and the right to a writ of man- damus in the latter case was affirmed." In re Winn. 213 U. S. 458, 468, 53 L. Ed. 873, 29 S. Ct. 515. Virginia v. Rives. — It is obvious from the opinion of the court and the concur- ring opinion in Virginia z'. Rives. 100 U. S. 313, 25 L. Ed. 667, that jurisdiction over the cause was taken because of the ex- traordinary abuse of discretion disclosed bj^ the power attempted to be exerted, the confusion and disregard of constitu- tional limitations which the asserted power implied, and because under the law as it then stood no power would other- wise have existed to correct the wrongful assumption of jurisdiction by the circuit court. Ex parte Harding, 219 U. S. 363, 373. 55 L. Ed. 252. 31 S. Ct. 324. In re Moore, 209 U. S. 490. 52 L. Ed. 904. 28 S. Ct. 585. 706, was also a case of removal, where there was diversity of citi- zenship biit neither of the parties resided in the particular district. The circuit court had refused to remand. Taking ju- risdiction to review such action, on ap- plication for a writ of mandamus, the federal supreme court held that as there was diversity of citizenship there was general jurisdiction in the circuit court, and that the objection that neither party resided within the district was a matter susceptible of being waived by the par- ties and that such waiver had taken place. The observations in Ex parte Wisner, 203 U. S. 449. 51 L. Ed. 264, to the contrary were expressly disapproved. The action of the circuit court in refusing to remand was consequently approved. No discus- sion was had or authority referred to upon the question of the right to review by mandamus the action of the circuit court, the right to exert such authority having in efifect been assumed as the re- sult of the decision in the Wisner case. Ex parte Harding, 219 U. S. 363, 375, 55 L. Ed. 252, 31 S. Ct. 324. In In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515, an action commenced in a state court had been removed into a circuit court of the United States, not upon diversity of citizenship, but upon the ground that the case stated v.'as one aris- ing under the laws of the United States. The circuit court denied a motion to re- mand. Upon application for mandamus this court took jurisdiction to review such action and directed that the case be re- manded, upon the ground that the cause of action when rightly construed did not arise under any provision of the constitu- tion or under any law of the United States. Referring to some of the previous cases, and manifestly noting an apparent conflict between them, it was said that this court had declmed to exert jurisdic- tion by mandamus in Ex parte Nebraska, 209 U. S. 436, 52 L. Ed. 876, 28 S. Ct. 581, and In re PoUitz, 206 U. S. 323, 51 L. Ed. 1081, because those cases but exemplified the exercise of judicial discretion by the circuit court as to a matter within its ju- risdiction, while the case in hand pre- sented a question of a want of jurisdiction in the circuit court, clearly apparent on the face of the record, and therefore that court when it decided that the cause of action alleged arose under a law of the United States, could not possibly have ex- ercised a discretion to decide a matter which was within its jurisdiction. Vir- ginia z: Rives, 100 U. S. 313, 25 L. Ed. 667 and Virginia v. Paul, 148 U. S. 107, 37 L. Ed. 386, were approvingly cited. Ex parte Harding, 219 U. S. 363, 375, 55 L. Ed. 252, 31 S. Ct. 324. Mandamus will lie to compel a federal circuit court to remand a cause to the state court whence it was removed, where it is apparent as a matter of law from the record itself that the federal court was without jurisdiction. In re Winn, 213 U. S. 458, 53 L. Ed. 873. 29 S. Ct. 515. "It is only in cases where the record makes it clear, as matter of law, that the circuit court was without jurisdiction to take any action whatever that the writ of mandamus lies.'" In re Winn, 213 U. S. 458. 468, 53 L. Ed. 873. 29 S. Ct. 515. "Where, without any right, a court of the United States has wrested from a state court the control of a suit pending in it an appeal or writ of error, at the end of long proceedings, which must go for naught, is not an adequate remedy." In re Winn, 213 U. S. 458, 467, 53 L. Ed. 873, 29 S. Ct. 515. In Ex parte Nebraska, 209 U. S. 436, 52 L. Ed. 876, 28 S. Ct. 581, the defendant 842 Vol. VIII. MANDAMUS. 59-63 L. Executive and Ministerial Officers of Government — 6. Officers of Unitfd States — c. Heads of Departments — (3) Secretary of Treasury. — See note 36. (7) Secretary of Interior — (a) In General. — Mandamus will lie, in the ab- sence of other controlling facts, to compel the secretary of the interior to restore to the freedman rolls of the Creek Nation the names of those who have been arbitrarily stricken from such rolls without the notice and opportunity to be heard essential to due process of law.^*^^ d. Subordinate Officers — (4) Land Officers — (a) In General. — See note 57. Mandamus may issue if the secretary of the interior has acted wholly without authority of law.-^"^ railwaj^ removed the cause to the United States court, upon the ground that the state was not a proper or necessary party to the suit, and that the controversy was wholly between citizens of different states. A motion to remand having been denied by the circuit court, this court issued a rule to show cause why a mandamus should not be allowed ordering the re- manding of the cause. Upon the hearing on the return to this rule the court de- clined to take jurisdiction and review the action of the trial court. It was said that the circuit court had jurisdiction to pass upon the questions raised by the motion to remand, and if error was committed in the exercise of its judicial discretion. Ex parte Harding, 219 U. S. 363, 371. 55 L. Ed. 252, 31 S. Ct. 324. Mandamus can not be used as a sul^sti- tute for an appeal or writ of error to cor- rect the error, if any, committed by a fed- eral circuit court in denying a inotion to remand, which presented for decision the question whether there w'as in the case a controversy wholly between citizens of different states, to the complete deterini- nation of which the state, though named as a party plaintiff, was not a neces&ary party. Ex parte Nebraska, 209 U. S. 436, 52 L. Ed. 876, 2S S. Ct. 581. In Ex parte Gruetter, 217 U. S. 586, 54 L. Ed. 892, 30 S. Ct. 690. the doctrine of In re Pollitz, 206 U. S. 323, 51 L. Ed. 1081 and Ex parte Nebraska. 209 U. S. 436, 52 L. Ed. 876. 28 S. Ct. 581, was reaffirmed. Ex parte Harding, 219 U. S. 363, 372, 55 L. Ed. 252, 31 S. Ct. 324. The denial by a federal circuit court of a inotion to remand a cause to a state court, because of the opinion that the grounds of the motion, viz., that the suit was to recover a penalty, and was not therefore one of a civil nature, that the petition and record did not show that the suit was sought to be removed to the cir- cuit court for the district in whicii either plaintiff or defendant resided, and that the defendant did not specifically pray for the removal of the cause, are not well founded, can not be reviewed by manda- mus. Ex parte Gruetter, 217 U. S. 586, 54 L. Ed. 892, 30 S. Ct. 690. 59-36. Secretary of treasury. — A duty enforceable by mandamus, and not one involving the exercise of judgment and discretion, was imposed upon the secre- tary of the treasury by Act Feb. 17, 1903, 32 Stat. 1612. c. 559, referring to him the Parish claim, under a contract to furnish ice to the government at a fixed price, to "determine and ascertain the full amount which should have been paid" to the con- tractor "if the said contract had been car- ried out in full, without change or default made by either of the parties," under the ruling of the measure of damages laid down by the federal supreme court, and in "accordance with the evidence in the case collected by the court of claims," and, after determining the full amount thus due, to deduct all payments, and pay over the balance to the claimant. Judgment (1907). United States v. Cortelyou, 30 App. D. C. 45. reversed. Parish v. Mac- Veagh, 214 U. S. 124, 53 L. Ed. 936. 29 S. v>t. 556. 61-46a. Secretary of interior. — Turner V. Fisher, 222 U. S. 204. 56 L. Ed. 165. 32 S. Ct. 37. affirming judgment State v. Gar- field. 33 App. D. C. 195. Garfield r. Goldsby. 211 U. S. 249. 53 L. Ed. 168. 29 S. Ct. 62. 63-57. A decision of the secretary of the interior, made in the discharge of a duty imposed bj' law and involving the ex- ercise of judgment and discretion, can not be reviewed by mandamus and he can not be compelled to retract it. and to give ef- fect to another not his own and not hav- ing his approval. Ness z: Fishef, 223 U. S. 683, 691, 56 L. Ed. 610, 32 S. Ct. 356. "We have no disposition to question those cases in which this court has held that the courts may not interfere with the land department in the administration of the public lands while the same are sub- ject to disposition under acts of congress entrusting such matters to that branch of the government." Garfield t'. Goldsby. 211 U. S. 249, 260, 53 L. Ed. 168, 29 S. Ct. 62. 63-57a. Acting without authority. — "But the question presented for adjudica- tion here does not involve the control of any matter committed to the laud depart- ment for investigation and determination. The contention of the relator is, that as the secretary had exercised the authority 843 65-79 MANDAMUS. Vol. VIII. (c) Delivery of Patent. — See note 66a. M. Mandamus to Public Corporations — 3. Enforcement of Municipal Obligations — b. Contracts — (4j Satisfied by Levy. — A tax levy can not be deemed sufficient to pay the judgments on county bonds, so as to defeat the right to mandamus to compel the levy of an additional tax for that purpose, where the original levy was with the purpose only, and was sufficient only, to pay the then amount of the judgments with accrued interest, and no provision was made for the interest to accrue, which amounted to a large sum when the mandamus issued. ^^* 4. Levy and Collection of Taxes — r. Excessive Levies. — The tax levy or- dered by mandamus to satisfy the accrued interest, amounting to more than $30,000, on judgments on county bonds, can not be said to be excessive when, upon the presumed assessed valuation of the property in the county, it would produce, if collected in full, an excess of little more than SlOO, and where, since the writ issued, additional interest to the amount of $10,000 has accrued.^-^ N. Mandamus to Private Corporations — 1^. To Railroads — h. To Fur- nish Cars. — See post, "Exhausting Other Remedies," IX, D, 3. IX. Procedure. D. Prerequisites — 1. Demand. — A demand is not necessary before bringing suit by mandamus to compel a board of county commissioners to levy a tax to satisfy judgments on county bonds, where it is averred that it is clearly the purpose of the board not to perform the duty imposed upon it by such judg- nients.4^^ conferred upon him and placed his name upon the rolls, and the same had been certified to the commission, and he had received an allotment certificate, and was in possession of the lands, the action of the secretary in striking him from the roll was wholly unwarranted, and not within the authority and control over public land titles given to the interior department."' Garfield v. Goldsby, 211 U. S. 249, 260, 53 L. Ed. 168, 29 S. Ct. 62. Mandamus is a proper remedy where the secretary of the interior, whclly with- out authority of law, has summarily erased from the approved rolls of citizenship in the Choctaw and Chickasaw Nations the name of one who has received an allot- ment certificate and is in possession of the land. Judgment (1907). 30 App. D. C. 177, affirmed. Garfield v. Goldsby, 211 U. S. 249, 53 L. Ed. 168, 29 S. Ct. 62; Garfield r. Allison, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. INIandamus to compel tlie secretary of the interior to undo his action in summa- rily striking from the approved rolls of citizenship in the Choctaw and Chickasaw Nations the name of one who has received an allotment certificate and is in posses- sion of the land will not be refused on the theory that his case comes within the provisions of Act July 1, 1902 (32 Stat. 641, c. 1362), establishing a citizenship court, as one of the claimants whose judgment in the court of the Indian Territory was annulled by the subsequent procedure in the citizenship court, leaving him the rem- edy of appealing to that court, and that, having failed to appeal, he lost all right to enrollment, where it does not appear whether or not his name was on the orig- inal or other tribal rolls. Judgment (1907) 30 App. D. C. 177, affirmed. Garfield v. Goldsby, 211 U. S. 249. 53 L. Ed. 168, 29 S. Ct. 62; Garfield z: Allison, 211 U. S. 264, 53 L. Ed. 176, 29 S. Ct. 67. 65-66a. Delivery of patent. — ]Mandamus will lie to compel the secretary of the in- terior to perform the purely ministerial duty to see that a patent is duly executed and delivered to an enrolled member of the Choctaw Nation, entitled to share in the allotment of tribal lands. Judgment, Garfield v. United States (1907), 30 App. D. C. 165, affirmed. Ballinger :•. Frost, 216 U. S. 240. 54 L. Ed. 464, 30 S. Ct. 338. 68-91a. Enforcement of municipal obli- gations. — Commissioners v. Coler, 215 U. S. 296. 54 L. Ed. 202, 30 S. Ct. 111. 77-32a. Levy and collection of taxes. — Commissioners v. Coler, 215 U. S. 296, 51 L. Ed. 202, 30 S. Ct. 111. 79-49a. Demand.— "By § 2764 of the Compiled Laws of New Mexico for the j^ear 1897 it is provided that 'when the right to require the performance of the act is clear, and it is apparent no valid ex- cuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance.' " Commissioners v. Coler, 215 U. S. 296, 303, 54 L. Ed. 202, 30 S. Ct. 111. 844 Vol. \'III. MAXDAMUS. 80-93 3. Exhausting Other Remedies. — Where grievances complained of were primarily within the administrative competency of the interstate commerce com- mission they are not subject to be judicially enforced by mandamus, at least until that body, clothed by the statute with authority on the subject, had been afforded by a complaint made to it the opportunity to exert its administrative functions. ^^^^ E. Time of Instituting Proceedings — 2. Limitations or Laches. — See note 53. F. Parties — 2. Respondents — e. Public Corporations. — Counties which have received a portion of the territory of Santa Fe county, X. ]\L, are not necessary parties to proceedings by mandamus to compel the levy of a tax to satisfy judg- ments on bonds issued by the latter county, where, under Laws X. 'M. 1903, p. 30, c. 20, as construed by the territorial supreme court, the county of Santa Fe can compel contribution from the other counties which have received a portion of its territory in proportion to the amount of taxable property received.-^'' J. Alternative Writ — 10. Hearing and Determination — d. Extent of In- quiry — (3) To Matters Determined by Judgment. — See notes 53, 54. 80-50a. Exhausting other remedies. — The g:rievances produced by regulations adopted by a railway company for the dis- tribution of coal cars in times of car shortage to the bituminous coal mines served by it. which are alleged to violate the provisions of the act to regulate com- merce (Act Feb. 4, 1887, c. 104, § 3. 24 Stat. 380 [U. S. Comp. St. 1907, p. 3155]), prohibiting unjust preferences or undue discriminations, can not be redressed, in advance of the action of the interstate commerce commission, by mandamus to prohibit the acts complained of and pre- scribe a rule or regulation for the future, since the provisions of Act March 2, 1889, c. 382, § 10, 25 Stat. 862 (U. S. Comp. St. 1901, p. 3172), authorizing mandamus to compel the furnishing of cars and other facilities for transportation, must be lim- ited either to the performance of duties v.'hich are so plain and so independent of previous administrative action of the com- mission as not to require a prerequisite exertion of power by that body, or to compelling the performance of duties which plainly arise from the obligatory force which the statute attaches to the orders of the commission, rendered within the lawful scope of its authority, until set aside by the commission or enjoined by the courts. Decree United States z\ Bal- timore & O. R. Co. (1908) 165 F. 113, 91 C. C. A. 147, reversed. Baltimore, etc., R. Co. t: Pitcairn Coal Co., 215 U. S. 481, 54 L. Ed. 292. 30 S. Ct. 164. 80-53. Three years. — A delay of more than three years after the court of claims decreed, with all the partieig before it, that the mandate of the federal supreme court modifying a prior decree of the court of claims, awarding the Cherokee Indians the amounts due from the United States under treatj' stipulations, required a dis- tribution per capita, is such laches as bars mandamus to require the court of claims to conform to such mandate, which, it is contended, directed a per stirpes distribu- tion, and such delay is not excused on the theory that the remedy by mandamus was only available when the roll of those In- dians entitled to share in the award, pre- pared in accordance with the order of the court of claims, was approved, because until that time there was uncertainty as to what the court might do. Matter of Eastern Cherokees. 220 U. S. S3, 55 L. Ed. 379, 31 S. Ct. 373. 85-81a. Parties — Public corporations. — Mandamus to compel the board of count}* commissioners of Santa Fe county, N. 'M., to levy a tax to satisfy' judgments on county bonds, will not be denied because portions of that county have since been annexed to two adjoining counties, where the territorial supreme court has con- strued Laws X. 'SI. 1903, p. 30, c. 20, as au- thorizing Santa Fe county to compel con- tribution from the two other counties which have received a portion of its ter- ritory, in proportion to the amount of tax- able property received. Judgment, Terri- torj' V. Board of Com'rs of Santa Fe County (X. M. 1907), 89 P. 252, affirmed. Commissioners z: Coler, 215 U. S. 296, 54 L. Ed. 202, 30 S. Ct. 111. 93-53. Alternative writ — Hearing and determination. — [Matters that could have been urged to prevent the rendition of the judgment sought to be enforced by mandamus, can not be set up to prevent the issuance of the writ. The defense that an act of congress validating the bonds of a territory is uncertain and indefinite can not be set up as a defense to mandamus. Commissioners v. Coler, 215 U. S. 296, 54 L. Ed. 202, 30 S. Ct. 111. 93-54, Commissioners v. Coler, 215 U. S. 296, 54 L. Ed. 202, 30 S. Ct. 111. 845 105 MANDATE AND PROCEEDIXGS THEREON. Vol. VIII. MANDATE AND PROCEEDINGS THEREOM. III. Remand and Directions Thereon, 846. P. In Admiralty Cases, 846. 1. Remand for Amendments, 846. T. For Further Proceedings, 846. 17. For Additional Findings, 846. a. In General, 846. b. Appeals from Court of Claims, 847. V. For New Trial, 847. 11. Inquiry before a Public Service Commission, 847. W. For Entry of Judgment, 847. 8^. For Entry of Particular Decree, 847. Z. For Dismissal of Proceedings, 848. 5. For Want of Jurisdiction, 848. a. In General, '848. 6. Without Prejudice to Other Action. 848. a. Dismissal for Want of Jurisdiction, 848. (1) In General, 848. IV. To What Courts Directed, 848. A. United States Courts, 848. 1. In General, &48. VII. Proceedings in Lower Court, 849. B. Powers and Duties on Remand, 849. 2. Conformity to Mandate, 849. a. In General, 849. e. Time of Compliance, 849. f. In Monopoly Cases, 849. CROSS REFERENCES. See the title Mandate and Proceedings Thereon, vol. 8, p. 97, and refer- ences there given. As to the enforcement of a mandate by mandamus, see ante, ^Mandamus, p. 838. III. Remand and Directions Thereon. P. In Admiralty Cases — 1. Remand for Amendments. — Where a cause in admiralty is reversed because of the insufficiency of the libel, the court may ac- company the decree of reversal with directions to allow an amendment of the libel so as to properly present the case.^*^*^ T. For Further Proceedings — 17. For Additional Findings — a. In Gen- eral. — The absence of specific findings of fact by the trial court, to which specific 105-30a. Admiralty cases — Amendments. the fact that the sponges may have been — The Abby Dodge, 223 U. S. 166, 56 L. taken from waters within the territorial Ed. 390, 32 S. Ct. 310. limits of a state, will be accompanied with A decree of the federal supreme court directions to permit the government, if it which, construing the Act of June 20, 1906, desires, to amend the libel so as to present regulating the landing of sponges, as ap- a case within the statute as so construed, plicable only to sponges taken outside of The Abby Dodge, 223 U. S. 166, 56 L. Ed. state territorial limits, reverses a decree 390, 32 S. Ct. 310. following The Mary below, fining a vessel for violating the Ann, 8 Wheat. 380, 390. 5 L. Ed. 641. statute, because the libel fails to negative 846 Vol. A'lII. MAX DATE AXD PROCEBDIXGS THEREOX. 115-119 objections could be made, require that a decree dismissing a bill be reversed with instructions to refer the case to some competent master to report fully his find- ings upon all of the questions raised by either party separately, with leave to both parties to take additional evidence within a time to be fixed by the court, which shall, upon such report, proceed as equity shall require. s^'' b. Appeals from Court of Claims. — Where on appeal from a court of claims the finding below on the matters in controversy is so incomplete and inconclusive as to render it impossible for the supreme court to correctly decide the cause, the record may be remanded to the court of claims for additional findings of fact.^^b V. For New Trial — 11. Inquiry before a Public Service Commission. — If an inquiry before a state commission for the regulation of rates of public service corporations has been founded upon the actual effect of rates higher than those in question, upon reversing the decree below the cause will not be dismissed, even without prejudice, but will be remanded for a new trial. ^'^ W. For Entry of Judgment — 8>^. For Entry oe Particular Decree. — Where the construction based upon an act by the supreme court is different from the construction which the government gave to the act in suits to enforce it, upon reversing and remanding a decree, the character of the decree which shall be 115-8fa. For additional findings in gen- eral. — Lincoln Gas, etc.. Co. v. Lincoln, 223 U. S. 349. 56 L. Ed. 466, 32 S. Ct. 271. The absence of specific findings of fact by the trial court to which specific objec- tion could be made requires that a decree dismissing the bill of a lighting company, which assails as confiscatory the rates for gas fixed by municipal ordinance, be re- versed, with instructions to refer the case to some competent master, to report fullj- his findings upon all of the questions raised by either party, separately, with leave to both parties to take additional evidence within a time to' be fixed by the court, which shall, upon such report, pro- ceed as equity shall require. Lincoln Gas, etc., Co. r. Lincoln, 223 U. S. 34'J, 56 L. Ed. 466, 32 S. Ct. 271. 115-85b. Appeals from court of claims. —Ripley z: United States, 220 U. S. 491, 55 L. Ed. 557, 31 S. Ct. 478. The record on cross appeals from an award by the court of claims under a con- tract for a public work will be remanded for correction, where the court failed to make an explicit finding as to the knowl- edge and good faith of the government in- spector whose action is alleged to have impeded greatly the progress of the work, to the claim.ant's injury, or to find as a fact whether or not complaint of the in- spector's action was made by the claim- ant to a superior officer, and, if made, as to the date of such complaint, and the ac- tion taken upon it. Ripley v. United States, 220 U. S. 491, 55 L. Ed. 557, 31 S. Ct. 478, following United States v. Adams, 6 Wall. 101, 18 L. Ed. 792. Additional findings made by the court of claims do not conform to the mandate of the federal supreme court, remanding the record on cross-appeals from an award under a contract for a public work, for an explicit finding as to the knowledge and good faith of the government in- spector whose action is alleged to have impeded greatly the progress of the work, to the claimant's injury, where the state- ment in such findings that the inspector was knowingly acting in bad faith is qual- ified by other language which shows that such knowledge and bad faith are inferred solely from lapse of time, with nothing to Indicpte that such an inference is a reces- sary conclusion. Riplev z\ Untred States, 222 U. vS. 144, 56 L. Ed. "]31. 32 S. Ct. 60. 119-8a. Inquiry before a public serv- ice commission. — Railroad Comm^. v. Cum- berland Tel., etc., Co., 212 U. S. 414, 53 L. Ed. 577, 29 S. Ct. 357, reversing CuniluM"- land Telephone & Telegraph Co. v. Rail- road Commission of Louisiana, 156 Fed. 823. See, also, post, NEW TRL\L. A bill seeking to enjoin, as confiscatory and unreasonable, the enforcement of tele- phone rates established by a state com- mission, will not be dismissed, even with- out prejudice, on reversing the decree below, granting an injunction, because of complainant's failure to show the disposi- tion of its so-called depreciation fund, but the cause will be remanded for a new trial where the inquiry has been founded upon the actual effect of rates higher than those in question, and hence it is not merely conjecture as to what will be the result of lower rates. Decree (C. C. 1907) Cumber- land Telephone & Telegraph Co. v. Rail- road Commission of Louisiana, 156 F. 823, reversed. Railroad Comm. v. Cumber- land Tel., etc., Co., 212 U. S. 414, 53 L. Ed. 577, 29 S. Ct. 357. 847 122-127 MANDATE AND PROCEEDINGS THEREON. Vol. VHI. entered will not be directed but the case will simply be reversed and remanded with directions to apply the statute under its proper construction. -^^ Z. For Dismissal of Proceedings — 5. For Want of Jurisdiction — a. In General. — See notes Z7, 38. 6. Without Prejudice to Other Action — a. Dismissal for IVaiit of Juris- diction — (1) In General. — See note 47. IV. To What Courts Directed. A. United States Courts — 1. In General. — As a general rule, under the provisions of the Judiciary Act of 1891, where a case comes to the supreme court on certiorari to the circuit court of appeals, it will be disposed of so that the mandate of the federal supreme court to avoid circuity will go directly to the lower court. '^-^ But to this rule there is an exception where certiorari is brought to review a decision made final in the circuit court of appeals ; in such a case the mandate of the supreme court will be directed to the circuit court of ap- peals.^-" 122-21a. For entry of particular decree. — Attorney General z'. Delaware, etc., Co., 21.3 U. S. 366, 53 L. Ed. 835, 29 S. Ct. 527. 125-37. For want of jurisdiction in gen- eral.— In McGilvra v. Ross, 215 U. S. 70. 54 L. Ed. 95, 30 S. Ct. 27, reversing 164 Fed. 604, 90 C. C. A. 398, it is held that li the lower court dismisses a cause on its merits when it has no jurisdiction, the case will be remanded for dismissal for want of jurisdiction. A decree of a federal circuit court of ap- peals which, after correctly deciding that the court below was without jurisdiction, inadvertently affirmed the decree, dis- missing the bill on the merits, will be re- versed by the federal supreme court, and the case remanded, with directions to set aside the decree on the merits and sustain the demurrer for want of jurisdiction, and, on that ground, dismiss the suit. Decree (1908) 164 F. 604, 90 C. C. A. 398, reversed. McGilvra v. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. A decree of a federal circuit court dis- missing, apparently on the merits, a bill which, on its face, shows that the court had no jurisdiction, will be reversed by the federal supreme court, and the case remanded to the circuit court with direc- tions to sustain the demurrer for want of jurisdiction, and on that ground dismiss the suit. Shawnee, etc.. Drainage Co. v. Stearns, 220 U. S. 462, 55 L. Ed. 462, 31 S. Ct. 452, citing McGilvra 7'. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. 125-38. Where the trial court properly dismisses a bill for want of jurisdiction, the federal supreme court, upon reversing a decree of the appellate court and affirm- ing that of the trial court, will direct that such affirmance be without prejudice to the right of complainant to proceed in the proper court. Crozier v. Krupp, 224 U. S. 290, 56 L. Ed. 771, 32 S. Ct. 488. The federal supreme court, upon revers- ing a decree of the court of appeals of the District of Columbia with directions to affirm a decree of the supreme court of the district, dismissing the bill in a suit to enjoin an army officer from making or causing to be made, guns or gun carriages embodying the patented inventions owned by complainant, will direct that such af- firmance be without prejudice to the right of complainant to proceed in the court of claims, under the Act of June 25, 1910, for the compensation for which that stat- ute provides. Crozier r. Krupp, 224 U. S. 290, 56 L. Ed. 771, 32 S. Ct. 488. 126-47. Without prejudice to other ac- tion — Dismissal for want of jurisdiction. — See ante, "For Want of Jurisdiction," III, Z, 5. 127-52a. To what courts directed — United States courts. — Lutcher, etc.. Lum- ber Co. z: Knight, 217 U. S. 257, 54 L. Ed. 757. 30 S. Ct. 505. 127-52b. Decisions made final in circuit court of appeals. — Lutcher, etc.. Lumber Co. z'. Knight, 217 U. S. 257, 54 L. Ed. 757, 30 S. Ct. 505, reversing 156 Fed. 1022, 84 C. C. A. 679. The circuit court of appeals, and not the circuit court, is the court to which the cause will be remanded by the federal su- preme court for hearing and decision upon reversing, on certiorari, a judgment of the circuit court of appeals which affirmed a judgment of the circuit court on the ground that the defenses relied upon be- low were of an equitable nature, not cog- nizable in a court of law, while the trial court, with the acquiescence of all parties, treated the defenses interposed by the answer as legal in their nature, and no such question was raised by either party or considered when the cause was sub- mitted to the circuit court of appeals. Judgment (1907) 156 F. 1022, 84 C. C. A. 679, reversed. Lutcher, etc., Lumber Co. V. Knight, 217 U. S. 257, 54 L. Ed. 757, 30 S. Ct. 505. 848 A'ol. VIII. MAXS LAUGHTER. 132-133 VII. Proceedings in Lower Court. B. Powers and Duties on Remand — 2. Conformity to IMaxdate — a. In General. — See note 81. e. Time of Compliance. — In a monopoly case, on account of the magnitude of the interests involved and their complexity six months may be given in which to execute a degree for the dissohition of a holding company.'^"^ And the Su- preme Court may, in its discretion, extend the period for complying with its mandate even beyond six months, if the necessities of the particular case re- quire it.^'^'' f. In Monopoly Cases. — In monopoly cases the court below may be directed to hear the parties, by evidence or otherwise as it may deem proper, for the purpose of ascertaining and determining upon some plan or method of dissolving the combination and of recreating, out of the elements composing it, a new con- dition which shall not be repugnant to the law.^"*^ MANSLAUGHTER.— See ante. Homicide, p. 619. 132-81. Conformity to mandate. — A de- cree of a federal district court for the transfer to certain adverse claimants of a part of the proceeds of a sale of property not in possession of the trustee in bank- ruptcy, without prejudice to the rights of such trustee, "if this court shall so author- ize,' to litigate in any proper court the question of his right to recover such funds as a part of the bankrupt's general estate, is a sufficient compliance with the man- date of the federal supreme court, which had directed the remanding of the case for further proceedings in conformitj' with its opinion, in which it was stated that the district court's original decree should have been "without prejudice to the right of respondents to litigate in a proper court." Ex parte First Nat. Bank, 207 U. S. 61, 52 L. Ed. 103, 28 S. Ct. 23. reversing Ex parte Chicago Title & Trust Co., 146 Fed. 742, 77 C. C. A. 408. Decrees for the absolute dismissal of suits by the federal government to enjoin railway carriers from interstate transpor- tation of commodities with which they are associated or in which they have an interest were in conformity with the man- date of the federal supreme court, which had reversed prior decrees of dismissal founded upon the alleged unconstitution- ality of the statute upon which the suits were based, and had remanded the causes for further proceedings, where leave to amend was not asked, and upon the facts appearing and admitted upon the record, no violation of the statute was shown. United States v. Erie R. Co., 220 U. S. 275, 55 L. Ed. 464. 31 S. Ct. 392. 133-87a. Exception to rule. — Standard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. See post, MONOPOLIES AND CORPORATE TRUSTS. The magnitude of the interests involved and their complexity require that six 12 U S Enc— 54 849 months be given in which to execute a decree for the dissolution of a holding company controlling the oil industry in violation of the Anti-Trust Act of July 2, 1890, and for the transfer back to the stockholders of the subsidiary corpora- tions of the stock which had been turned over to the holding company in exchange for its own stock. Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. 133-87b. Extending time beyond six months. — -United States z\ American To- bacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632. Six months, with a possible extension of sixty days, should be given in which to work out a plan for dissolving a combi- nation found to control the tol)acco in- dustry in violation of the Anti-Trust Act of July 2, 1890, and recreating out of the elements composing it a condition which will not be repugnant to the prohibitions of the act. United States v. American To- bacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632. 133-87C. In monopoly cases. — United States z\ American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632. To give effective force to a decree of the federal supreme court adjudging that a combination controlling the tobacco in- dustry offends against the Anti-Trust Act of July 2, 1890, the court below will be directed to hear the parties, by evidence or otherwise, as it may deem proper, for the purpose of ascertaining and determin- ing upon some plan or method of dis- solving the combination, and of recreat- ing, out of the elements composing it, a new condition which shall not be repug- nant to the law. United States :•. Ameri- can Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632. See post, MONOPO- LIES AND CORPORATE TRUSTS. 146 MANUFACTURE— MANUFACTURES. Vol. VIIL MANUFACTURE— MANUFACTURES.— See note 2. 146-2. "Manufacture implies a change, but every change is not manufacture, and yet every change in an article is th^i re- sult of treatment, labor and manipulation. But something more is necessar}^ as set forth and illustrated in Hartranft v. Wieg- mann, 121 U. S. 609, 30 L. Ed. 1012, 7 S. Ct. 1240. There must be transformation; a new and different article must emerge, 'having a distinctive name, character or use.'" Anheuser-Busch Brewing Ass'n v. United States, 207 U. S. 556, 562, 52 L. Ed. 336, 28 S. Ct. 204. Corks as articles of manufacture. — Im- ported corks used in bottling beer for ex- port are not articles of manufacture from imported materials within the meaning of the § 25 of the Act of Oct. 1, 1890, allow- ing a drawback of duties on such articles when exported although such corks were subjected to a special treatment after im- portation to make them fit for the purpose intended. A cork put through this special process is still the cork. Anheuser-Busch Brewing Ass'n v. United States, 207 U. S. 556, 52 L. Ed. 336, 28 S. Ct. 204. See post, REVENUE LAWS. Manufacturing as used in bankrupt laws. — "The word manufacturing, as used in the Bankrupt Act, has no definite legis- lative meaning by reason of adoption from other bankrupt acts, as is the case with the words 'trader' or 'trading,' and perhaps other words with well-understood common-law meanings. Though British bankrupt acts were in existence from the time of Henry VIII, they applied only to 'traders' until 1860, when they were ex- tended to other persons. Our own orig- inal act, that of 1800, applied only to traders, bankers, brokers and underwrit- ers. The Act of 1841 added 'merchants.' The Act of 1867 extended practically to all persons and corporations. That of 1898 limited the wide application of the. Act of 1867 to the class of business cor- porations enumerated. Thus it is that the words manufacture and manufacturing have no meaning derived from adjudica- tions of any former law." Friday v. Hall, etc., Co., 216 U. S. 449, 454, 54 L. Ed. 562, 30 S. Ct. 261. A corporation whose principal business is making and constructing arches, walls, and abutments, bridges, buildings, etc., out of concrete, in carrying on which busi- ness it buys and combines together raw materials, and supplies the necessary labor, machinery, and appliances, is a "corporation engaged principally in man- ufacturing," within the meaning of the Bankrupt Act of July 1, 1898 (30 Stat, at L. 544, chap. 541, U. S. Comp. Stat. 1901, p. 3418), § 4 as amended by the Act of Feb. 5, 1903 (32 Stat, at L. 797, chap. 487, U. S. Comp. Stat. Supp. 1909, p. 1309), defining the persons or corporations which may be adjudged involuntary bankrupts, although such company makes its product, and gives it form and shape, at the place where it is to remain. Friday v. Hall, etc., Co., 216 U. S. 449, 54 L. Ed. 562, 30 S. Ct. 261. See ante, BANKRUPTCY, p. 168. It is not denied that if concrete in a shape adapted to use and in finished form is supplied to others for the making of a house, bridge, pier, arch or abutment, that the corporation making such blocks or shapes would be in the most narrow sense one engaged in manufacture. But it is urged that this corporation made these blocks or shapes at the place where used, and that, as finished, they became a part of a principal structure and affixed to the realty; and that, therefore, they were not engaged in manufacturing, which, say counsel, is a business confined to those who make articles which may be "trans- ported and sold at some other place than that where made." The production of concrete arches, or piers, or abutments is the result of successive steps. The com- bination of raw material, the sand, the limestone, the cement and, the water pro- duced a product, which undoubtedly was manufactured. This concrete had then to he given shape. That required the manu- facture of moulds, which remain in place until hardening occurs. If the concrete is reinforced, as in the case where great strength is required, then the adjustment of the bars of steel within the moulds was another step. The operation which in the end is to produce an arch, or abut- ment, or pier, or house, is not necessarily a single operation, but one of successive repetitions of the process. The business is not identical with that of a mere builder or constructor who puts together the brick, or stone, or wood, or iron, as fin- ished by another. If the builder made his brick, shaped his timbers, and joined them all together, he would plainly be a manufacturer as well as a builder; and if the former was the principal part of the business, he would be within the defini- tion of the Bankrupt Act. To say that one who makes and then gives form and shape to the product made is not en- gaged in manufacturing because he makes his product and gives it form and shape in the place where it is to remain, is too narrow a construction. Friday v. Hall, etc., Co., 216 U. S. 449, 455, 54 L. Ed. 562, 30 S. Ct. 261. "Undoubtedly congress intended that that class of business corporations en- gaged in any class of manufacturing, as its principal business, and not as a mere minor incident to some larger work, should be subject to the law; and this in- tention should be regarded by giving to 850 Vol. VIII. MASTER AND SERVANT. 146 MANUSCRIPT.— See ante, Copyright, p. 377. MARINE INSURANCE.— See the title ^Iarine Insurance, vol. 8, p. 149, and references there given. MARINERS.— See post. Seamen. MARINE TORTS.— See ante, Admiralty, p. 10 ; Collision, p. 243. MARITAL RIGHTS.— See ante, Husband and Wiee, p. 620. MARITIME LIENS.— See the title Maritime LiEns, vol. 8, p. 218, and ref- erences there given. As to admiralty jurisdiction, see ante. Admiralty, p. 10. As to ship building contracts and liens arising out of the building thereof, see post, \\'0RKiNG Contracts. MARITIME TORTS.— See ante, Admiralty, p. 10: Collision, p. 243; post, Ships and Shipping. MARKET. — See the title Market, vol. 8, p. 245. and references there given. MARRIAGE.— See the title Marriage, vol. 8. p. 247, and references there given. MARRIAGE CONTRACTS AND SETTLEMENTS.— See the title Marriage Contracts and Skttlf.mI'Xts, vol. 8, p. 254, and references there given. MARRIED WOMEN.— See ante. Husband and Wiee, p. 620. MARSHALING ASSETS AND SECURITIES.— See the title Marshaling Assets and Securities, vol. 8, p. 261, and references there given. MARTIAL LAW.— See the title Martial Law, vol. 8, p. 272, and references there given. MASTER AND SERVANT. I. When Relation Exists, 852. A. In General. 852. II. Contract of Hiring, 852. B. Breach of Contract, 852. III. Liability of Master to Servant for Personal Injuries, 852. A. In General, 852. C. Duties Owed by Master and Servant, 852. .j 3. Duties Stated and Applied, 852. a. Duty to Provide Safe Place to A^'ork, 852. (1) Statement of Rule, 852. b. Duty to Provide Safe Machinery and Appliances, 853. (1) Statement of Rule, 853. (3) Application of Rule to Railroads, 853. (b) Cars, 853. aa. In General, 853. bb. Couplings, 854. f. Duty to Warn and Instruct Servant, 855. D. Assumption of Risks by Servant, 855. 1. Distinguished from Contributory Negligence, 855. doubtful words and terms a liberal rather States, 171 U. S. 210, 216, 43 L. Ed. 139, than a narrow meaning. Manufacturing Mr. Justice Rrown, referring to the ex- has no technical meaning. It is not pansion of the meaning of the word limited by the means used in making, nor 'manufacture,' said that 'the word is now by the kind of product produced. In ordinarily used to denote an article upon Kidd V. Pearson. 128 U. S. 1, 20, 32 L. Ed. the material of which labor has been ex- .'^46, Mr. Justice Field said that 'manu- pended to make the finished product.' " facture is transformation, the fashioning Friday v. Hall, etc., Co., 216 U. S. 449, of raw material into a change of form or 4,54, .54 L. Ed. 502, 30 S. Ct. 261. use.' In Tide Water Oil Co. v. United 851 279-281 MASTER AND SERVANT. Vol. VIII. 3. What Risks Are Assumed by Servant, 855. a. Risks Ordinarily Incident to Service, 855. (1) In General, 855. (2) Reason for Rule, 855. d. Open and Obvious Defects and Damages, 856. h. Under Federal Safety Appliance Act, 856. 4. Remaining in Service upon Promise to Remove Danger, 856. E. Contributory Negligence of Servant, 857. 2. What Constitutes Contributory Negligence, 857. ^a. In General, 857. a. Knowledge of Defects and Dangers, 857. f. Failure to Avail of Permission to Leave Place of Work, 857. F. Actions for Injuries, 857. 2. Instructions, 857. 3. Province of Court and Jury, 857. G. Federal Employer's Liability Act, 858. IV. Liability of Master to Third Persons for Acts of Servant, 859. B. For Tortious Acts, 859. CROSS REFERENCES. See the title Master and Servant, vol. 8, p. 275, and references there given. In addition, see ante. Interstate and Foreign Commerce, p. 689; Labor, p. 816. As to constitutionality of safety appliance act, see ante, Constitutional Law, p. 264; Due Process oe Law, p. 475; Interstate and Foreign Com- merce, p. 689. I. When Relation Exists. A. In General. — See post, "For Tortious Acts," IV, B. II. Contract of Hiring. B. Breach of Contract. — Discharge Because of Membership in La- bor Organization. — See ante, Constitutional Law, p. 264; Due Process of Law, p. 475 ; Interstate and Foreign Commerce, p. 689. Constitutionality of Statutes Punishing Breach of Labor Contracts. — See ante, Constitutional Law, p. 264; Due Process of Law, p. 475; Police Power. III. Liability of Master to Servant for Personal Injuries, A. In General.^See note 10. C. Duties Owed by Master and Servant — 3. Duties Stated and Applied — a. Duty to Provide Safe Place to Work — (1) Statement of Rule. — See notes 21, 23. 279-10, "Where workmen are engaged taw, etc., R. Co. v. McDade, 191 U. S. 64, in a business more or less dangerous, it 66, 48 L. Ed. 96, 24 S. Ct. 24, and cases is the duty of the master to exercise rea- there cited. sonable care for the safety of all his em- 281-21. McCabe, etc., Constr. Co. v. Wil- ployees, and not to expose them to the son, 209 U. S. 275, 52 L. Ed. 788, 28 S. danger of being hurt or injured by the use Ct. 558; Kreigh v. Westinghouse, etc., Co., of a dangerous appliance or unsafe place 214 U. S. 249, 53 L. Ed. 984, 29 S. Ct. 619, to work, where it is only a matter of us- following Grand Trunk R. Co. v. Cum- ing due skill and care to make the place mings, 106 U. S. 700, 27 L. Ed. 266, 1 S. and appliances safe. There is no reason Ct. 493, and Deserant v. Cerillos, etc., R. why an employee should be exposed to Co., 178 U. S. 409, 420, 44 L. Ed. 1127, 20 dangers unnecessary to the proper opera- S. Ct. 967. See ante, FELLOW SERV- tion of the business of his employer." ANTS, p. 579. Kreigh v. Westinghouse, etc., Co., 214 U. 281-23. "The duty of the master to use S. 249, 53 L. Ed. 984, 29 S. Ct. 619; Choc- reasonable diligence in providing a safe 852 Vol. VIII. MASTER AXD SERVANT. 281-283 Duty a Continuing One. — The duty of providing a reasonably safe place for the carrying on of the work is a continuing one, and is discharged only when the master furnishes and maintains a place of that character.--^^ Place Becoming Unsafe through Negligence of Workmen. — But while this duty is imposed upon the master, and he can not delegate it to another and escape liability on his part, nevertheless the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has dis- charged his primary duty of providing a reasonably safe appliance and place for his employees to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellow workmen. ^^^^ b. Duty to Proz'ide Safe Machinery and Appliances — (1) Statement of Rule. — It is the duty of the master not to expose workmen to the danger of being hurt or injured by the use of a dangerous appliance, when it is only a matter of using due skill and care to keep the appliances safe.-^'^^ The employee is not obliged to examine into the employer's methods of transacting his business, and he may assume, in the absence of notice to the contrary, that reasonable care will be used in furnishing appliances necessary to carrying on the business.-"'^*'' (3) Application of Rule to Railroads — (b) Cars — aa. In General. — A carrier using in moving interstate traffic cars whose condition does not satisfy the re- quirements of the Safety Appliance Acts (Act IMarch 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], Act April 1, 1896, c. 87, 29 Stat. 85 [U. S. Comp. St. 1901, p. 3175], and Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1909, p. 1143]), can not escape the penalty therein prescribed by showing that it exercised reasonable care in equipping its cars with the re- quired safety appliances, and used due diligence to keep them in repair by the usual inspection, for the statutes impose an absolute duty upon the carrier which place for the men in his employ to work 202 U. S. 438. 50 L. Ed. 1094, 26 S. Ct. in and to carry on the business of the 676, it was declared: 'The duty is a con- master for which they are engaged has tinning one and must be exercised when- been so frequently applied in this court, ever circumstances demand it.' " Kreigh and is now so thoroughly settled, as to v. Westinghouse, etc., Co., 214 U. S. 249, require but little reference to the cases 53 L. Ed. 984, 29 S. Ct. 619. in which the doctrine has been declared." 281-23b. Place becoming unsafe through Kreigh V. \\estnighouse etc^, Co., 214 U. negligence of workmen.— Kreigh i: West- S. 249, 53 L. Ed. 984, 29 S. Ct. 619; Balti- i„ghouse, etc., Co., 214 U. S. 249, 53 L. more, etc., R Co. v. Mackey, 157 U. S. 72, Ed. 984, 29 S. Ct. 619, citing Armour v. 87, 39 L. Ed. 624 15 S. Ct 49i; Union Hahn, 111 U. S. 313, 28 L. Ed. 440, 4 S. Pac R. Co. V. OBnen, 161 U. S. 451, 40 Ct. 433; Perry v. Rogers, 157 X. Y. 251, L. Ed. 766, 16 S. Ct. 618; Choctaw, etc., 51 N E lO''! R. Co. V. McDade, 191 U. S. 64, 48 L. Ed. osq Qn.^ tt • v, \\t ^- u Qfi •y± G. r^ o± 283-30a. Kreigh v. Westinghouse, etc., ,.;., r . ■ Co., 214 U. S. 249, 53 L. Ed. 984, 29 S. Ct. •Where workmen are engaged in a 619, approving Choctaw, etc., R. Co. v. business more or less dangerous, it is the McDade, 191 U. S. 64, 66, 48 L. Ed. 96, 24 duty of the master to exercise reasonable s. Ct. 24. See St. Louis, etc., R. Co. v. care for the safety of all his employees. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 and not to expose them to the danger of 5. Ct. 616 being hurt or injured by the use of a '"The employer had no duty, statutory dangerous apphance or unsafe place to or otherwise, to use a rail to guard against work, where it is only a matter of using so obvious a danger as that arising out due skill and^care to make the place and ^f two cylinders in contact with-each appliances safe. ' Kreigh v. Westing- other and seen to be revolving inwardly." house, etc., Co., 214 U. S. 249, 53 L. Ed. Butler v. Frazee, 211 U. S. 459, 53 L. Ed. 984, 29 S. Ct. 619; Choctaw, etc., R. Co. 281. 29 S. Ct. 136. V. McDade, 191 U. S. 64, 66, 48 L. Ed. 96, 283'-30b. Kreigh v. Westinghouse, etc., 24 S. Ct. 24, and cases there cited. Co., 214 U. S. 249, 53 L. Ed. 984, 29 S. Ct. 281-23a. Duty a continuing one. — "As 619; Choctaw, etc., R. Co. v. McDade, 191 late as Santa Fe Pac. R. Co. v. Holmes, U. S. 64, 68, 48 L. Ed. 96, 100, 24 S. Ct. 24. 853 285 MASTER AND SERVANT. Vol. VIII. is not discharged by the exercise of reasonable care or diligence.^^^ bb. Couplings. — Absolute Duty to Provide Automatic Couplers. — An ab- solute duty to provide every car used in moving interstate traffic with automatic couplers, and to maintain them in proper condition at all times and under all circumstances, is imposed upon interstate carriers by Safety Appliance Act (March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), which was not discharged by properly equipping the car with automatic couplers, and using due diligence to keep them in good working order. ^^^^ Cars Embraced by Statute. — The terms of the original Safety Appliance Act of March 2, 1893, were such that its application depended, first, upon the carrier being engaged in interstate commerce by railroad, and, second, upon the use of the car in moving interstate traffic. It did not embrace all cars used on the line of such a carrier, but only such as were used in interstate com- merce.^o" The act was amended March 2, 1903, 32 Stat, at L. 943, chap. 976, U. S. Comp. Stat. Supp. 1909, p. 1143, so as to include all cars used on any railroad engaged in interstate commerce. ^^'^ Drawbars. — Drawbars of unloaded freight cars are required by Safety Ap- pliance Act March 2. 1893, c. 196. § 5, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), to be of uniform and standard height; but those of loaded cars need not be of uniform height, provided that they do not vary more than the three inches prescribed as the maximum permitted variation from the standard.^^"^ Contributory negligence on the part of an employee was a defense to an action founded on the Safety Appliance Act (Act Alarch 2, 1893, c. 196, 27 285-39a. Under Safety Appliance Act. — Chicago, etc., R. Co. v. United States, 220 U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612, af- firming 170 Fed. 556, 95 C. C. A. 642. 285-40a. Delk v. St. Louis, etc., R. Co., 320 U. S. 580, 55 L. Ed. 590, 31 S. Ct. 617, reversing 158 Fed. 931, 86 C. C. A. 95, 14 A. & E. Cas. 233. 285-40b. Brinkmeier v. Missouri Pac. R. Co., 224 U. S. 268, 56 L. Ed. 758, 32 S. Ct. 412; Southern R. Co. v. United States, 222 U. S. 20, 25, 56 L. Ed. 72, 32 S. Ct. 2. A freight car loaded with interstate freight, and placed on a side track in the railway yard at destination, to await simple repairs to the automatic coupler, is used in moving interstate commerce within the meaning of the Safety Appli- ance Act of March 2, 1893 (27 Stat, at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), when a coupling with another car is thereafter attempted by the carrier's order, during the course of switchinsr opera- tions. Delk 7'. St. Louis, etc., R. Co., 220 U. S. 580, 55 L. Ed. 590, 31 S. Ct. 617. A shovel car in course of transporta- tion between points of different states, and therefore being used in interstate com- merce, is a car within contemplation of § 2 of the act of congress of March, 1893. Schlemmer v. BufiFalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561, ap- proving S. C, 205 U. S. 1, 13, 51 L. Ed. 681, 27 S. Ct. 407. The petition states no cause of action under the original Safety Appliance Act of March 2, 1893 (27 Stat, at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), mak- ing it unlawful for any railroad carrier engaged in iiUerstate commerce "to haul or permit to be hauled or used on its line any car used in moving interstate traffic, not equipped with couplers coupling au- tomatically by impact," where there is no allegation that either of the cars was, at the time of the accident, or at any time, used in moving interstate traffic. Brink- meier v. Missouri Pac. R. Co., 224 U. S. 268, 56 L. Ed. 758, 32 S. Ct. 412. 285-40C. Brinkmeier v. Missouri Pac. R. Co.. 224 U. S. 268. 56 L. Ed. 758, 32 S. Ct. 412. 285-40d. Drawbars. — St. Louis, etc., R. Co. V. Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616, reversing 83 Ark. 591, 98 S. W. 958. The statutory duty imposed upon car- riers in absolute terms by Safety Appli- ance Act March 2, 1893, c. 196, § 5, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), of using in interstate commerce only such freight cars as comply with the standard fixed as the height for drawbars, is not discharged by furnishing cars constructed with drawbars of the standard height, and by furnishing to competent inspectors and train men a sufficient number of metallic wedges or "shims," to use as oc- casion demands to raise to the legal standard drawbars lowered by the natural effect of proper use. Judgment, St. Louis, I. M. & S. Ry. Co. V. Neal (1906), 98 S. W. 958, 83 Ark. 591, reversed. St. Louis, etc., R. Co. V. Tavlor. 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 854 Vol. A'lII. MASTER AXD SERVANT. 285-289 Stat 531 [U. S. Comp. St. 1901. p. 3174]), although by § 8 of that act the defense of assumption of risk was expressly excluded.'* '^^ Exceptions and Burden of Proof. — The burden of proof is upon a carrier to bring itself within the exception in favor of four-wheeled cars which is made by the proviso in § 6, Automatic Coupler Act March 2, 1893, c. 196, 27 Stat. 532 [U. S. Comp. St. 1901, p. 3175]. ^of f. Duty to JJ'arn and lusfnicf Serz'ant. — See note 47. D. Assumption of Risks by Servant — 1. Distinguished from Contrib- utory Negligence. — See note 53. 3. What Risks Are Assumed by Servant — a. Risks Ordinarily Incident to Service — (1) In General. — See note H. (2) Reason for Rule. — See note 58. 285-40e. Contributory negligence. — Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561, affirm- ing judgment (1909), 71 A. 1053, 222 Pa. 470. The benefit of the provisions of the Safety Appliance Act (Act .March 2, 1893, c. 196, § 8, 27 Stat. 532 [U. S. Comp. St. 1901, p. 3176]), excluding the defense of assumption of risk, was not refused by holding that as a matter of law an ex- perienced railway brakeman who persisted in attempting to couple in a dangerous way a car having an automatic coupler to another car not so equipped, when a safer method was called to his attention, and who was killed because he raised his head while making the coupling, in spite of repeated cautions, was guilty of con- tributory negligence, defeating any re- covery. Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561, affirming judgment in 71 A. 1053, ^22 Pa. 470. "There is nothing in the statute absolv- ing the employee from the duty of using ordinary care to protect himself from in- jury in the use of the car with the appli- ances actually furnished. In other words, notwithstanding the company failed to comply with the statute, the employee was not, for that reason, absolved from the duty of using ordinary care for his own protection under the circumstances as they existed. This has been the hold- ing of the courts in construing statutes enacted to promote the safety of em- ployees. Krause v.- Morgan, 53 Ohio St. 26, 40 N. E. 886; Holum v. Chicago, M. & St. P. R. Co., 80 Wis. 299, 50 X. W. 99; Grand v. Michigan C. R. Co.. 83 Mich. 564, 11 L. R. A. 402, 47 N. W. 837; Taylor V. Carew Mfg. Co., 143 Mass. 470, 10 N. E. 308. And such was the holding of the court of appeals of the eighth circuit, where the statute now under considera- tion was before the court. Denver & R. G. R. Co. V. Arrighi, 63 C. C. A. 649, 129 Fed. 347." Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561. 285-40f. Exception and Burden of Proof. —Judgment (1903), 56 A. 417, 207 Pa. 198, reversed. Schlemmer :■. Buffalo, etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. Ct. 407. 287-47. A master does not discharge his duty to employees working in a dimly lighted stable, where he does not inform them of the dangers to them from the customary use of a hole in the ceiling to pass or drop hay or feed to the floor be- low. Standard Oil Co. v. Brown, 218 U. S. 78, 54 L. Ed. 939, 30 S. Ct. 669, affirm- ing judgment (1908), 31 App. D. C. 371. 288-53. "Where * * * assumption of risk sometimes shades into negligence as com- monly understood, there is, nevertheless, a practical and clear distinction between the two." Schlemmer z\ Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596. 31 S. Ct. 561, reaffirming S. C, 205 U. S. 1, 12, 51 L. Ed. 681, 27 S. Ct. 407, and Choctaw, etc.. R. Co. V. McDade, 191 U. S. 64, 67, 48 L. Ed. 9G. 24 S. Ct. 24. 288-55. Risks ordinarily incident to service. — "In the absence of statute taking away the defense, or such obvious dan- gers that no ordinarily prudent person would incur them, an employee is held to assume the risk of the ordinary dangers of the occupation into which he is about to enter, and also those risks and dan- gers which are known, or are so plainly observable that the employee may be pre- sumed to know of them, and if he con- tinues in the master's employ without ob- jection, he takes upon himself the risk of injury from such defects." Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561; Choctaw, etc., R. Co. V. McDade, 191 U. S. 64, 68, 48 L. Ed. 96. 24 S. Ct. 24, and former cases in the federal supreme court therein cited. 289-58. "The rule is too well settled to warrant an extensive discussion of it or an attempt to analyze the different rea- sons upon which it has been held to be justified. The rule of assumption of risk has been thought by many a hard one when applied to the complicated condi- tions of modern industry, so largely con- ducted by the aid of machinery propelled by irresistible and merciless mechanical power, and the criticism frequently has been made that the imperative need of 855 290-291 MASTER AND SERVANT. Vol. VIII. d. Open and Obvious Defects and Dangers. — See note 62. h. Under Federal Safety Appliance Act. — The provisions of the Safety Ap- pHance Act of March 2. 1893, c. 196, § 8, 27 Stat. 532, U. S. Comp. Stat. 1901, p. 3176, exclude the defense of assumptions of risk.*^^^ 4. Remaining in Se;rvice upon Promise to Remove Danger. — A promise to repair or replace throws the risk on the master until the time for perform- ance has gone by, and it does away with or leaves to the jury what otherwise would be negligence as matter of law. This is evidence of the great considera- tion with which workmen are treated here, but can not be deemed a necessary incident of all civilized codes. It can not be assumed without proof that the law of a foreign county in this respect is the same as that of the former.'"^'^ employment leaves to the workman no real freedom of choice, such as the rule assumes. That these considerations have had an influence is shown by the no- torious unwillingness of juries to apply the rule, and by the legislative modifica- tions of it which, from time to time, have been made, as, for instance, by congress in the safety appliance law." Butler v. Frazee, 211 U. S. 459, 53 L. Ed. 281, 29 S. Ct. 136. 290-62. One who understands and ap- preciates the permanent conditions of ma- chinery, premises, and the like, and the danger which arises therefrom, or, by the reasonable use of his senses, having in view his age, intelligence, and experience, ought to have understood and appreciated them, and voluntarily undertakes to work under those conditions and to expose him- self to those dangers, can not recover against his employer for the resulting in- juries. Upon that state of facts the law declares that he assumes the risks. Butler V. Frazee, 211 U. S. 459, 53 L. Ed. 281, 29 S. Ct. 136. "\Yhcre the elements and combination out of which the danger arises are visible it can not always be said that the danger itself is so apparent that the employee must be held, as matter of law, to under- stand, appreciate, and assume the risk of it. Texas, etc., R. Co. v. Swearingen, 196 U. S. 51, 49 L. Ed. 382, 25 S. Ct. 164; Fitzgerald v. Connecticut River Paper Co , 155 Mass. 155, 31 Am. St. Rep. 537, 29 N. E. 464. The visible conditions may have been of recent origin, and the danger aris- ing from them may have been obscure. In such cases, and perhaps others that could be stated, the question of the as- sumption of the risk is plainly for the jury. But where the conditions are con- stant and of long standing, and the dan- ger is one that is suggested by the com- mon knowledge which all possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelli- gence, and adequate experience, and all these elements of the problem appear without contradiction, from the plaintiff's own evidence, the question becomes one of law for the decision of the court. Upcn such a state of the evidence a verdict for the plaintiff can not be sustained, and it is the duty of the judge presiding at the trial to instruct the jury accordingly. Pat- ton V. Texas, etc., R. Co., 179 U. S. 658, 45 L. Ed. 361, 21 S. Ct. 275, and cases there cited. The case at bar falls within this class." Butler v. Frazee, 211 U. S. 459, 53 L. Ed. 281., 29 S. Ct. 136. An experienced operator of full age as a matter of law assumes the risk of in- jury from the excessive height above the feed board at which the guard rail of a laundry mangle is adjusted, where she has worked for some months at this ma- chine, during which time the guard rail has remained in the same position. Judg- ment (1905), 25 App. D. C. 392, affirmed. Butler V. Frazee, 211 U. S. 459, 53 L. Ed. 281, 29 S. Ct. 136. In such case the fact that, as the plain- tiff testified in substance that she did not know and appreciate the danger which she was encountering, with the other facts in the case, did not raise an issue for the jury, for, as a matter of law, the risk had been assumed. Butler 7'. Frazee, 211 U. S. 459, 53 L. Ed. 281, 29 S. Ct. 136, 138. District of Columbia. — "The common law in this regard has not been modified in the District of Columbia"' Butler v. Frazee, 211 U. S. 459, 53 L. Ed. 281, 29 S. Ct. 136. 291-64a. Under Safety Appliance Act. — The provisions of the Safety Appli- ance Act (Act March 2, 1893, c. 196, § 8, 27 Stat. 532 [U. S. Comp. St. 1901, p. 3176 1), excluding the defense of assump,- tion of risk, was not refused by holding that as a matter of law an experienced railway brakeman who persisted in at- tempting to couple in a dangerous way a car having an automatic coupler to an- other car not so equipped, when a safer method was called to his attention, and who was killed because he raised his head while making the coupling, in spite of le- peated cautions, was guilty of contribti- tory negligence, defeating any recovery. Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590. 55 L. Ed. 596, 31 S. Ct. 561. 291-65a. Cuba R. Co. v. Crosby, 222 U. S. 473, 56 L. Ed. 274, 32 S. Ct. 13.3. The federal courts can not assume with- 856 Vol. VIII. MASTER AND SERVANT. 291-295 E. Contributory Negligence of Servant — 2. What Constitutes Con- tributory Negligence — ^a. In General. — Contributory negligence is the omission of the employee to use those precautions for his own safety which ordinary prudence requires."^*^*^ a. Knozvledge of Defects and Dangers. — See note 67. f. Failure to Avail of Permission to Leave Place of Work. — A locomotive fireman is not guilty of contributory negligence precluding a recovery for an injury caused by the giving way of a bridge because he did not avail himself of the engineer's permission, given before the engine moved onto the bridge, to leave the engine and go back on the train, where both the engineer and him- self were advised by the construction force that the bridge was safe.'^-^^ F. Actions for Injuries — 2. Instructions. — See note 79. 3. Province oe Court and Jury. — See note 80. out proof that, under the law of Cuba, like that of the forum, a promise to re- pair or replace defective machinery, when notified by an employee of the defect, throws upon the master the risk of in- jury to such employee from such defect until the time for performance has ex- pired, or tiiat it does away with or leaves to the jury what otherwise would be neg- ligence as a matter of law. Cuba R. Co. V. Crosby, 222 U. S. 473, 56 L. Ed. 274, 32 S. Ct. 132. 291-66a. Schlemmer z: Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561. See, in this connection, Narra- more v. Cleveland, etc., R. Co., 48 L. R. A. 68, 37 C. C. 499, 509, 96 Fed. 298. "Since the plaintiff jumped from the train in obedience to a suggestion, if not an order, of his immediate superior, the section foreman, the jury might have found that the plaintiff reasonably thought he could rely upon the judgment of the section foreman, and that, under the cir- cumstances, the plaintiff's act was not so obviousl}'- reckless and dangerous as to constitute contributory negligence." Texas, etc., R. Co. v. Bourman, 212 U. S. 536, 53 L. Ed. 641, 29 S. Ct. 319; Northern Pac. R. Co. v. Egeland, 163 U. S. 93, 41 L. Ed. 82, 16 S. Ct. 975. Mounting a moving car by placing one foot on the journal box and catching a hand rail running through standards on the side of the car and within easy reach is not, as a matter of law, contributory negligence which will defeat a recovery by a brakeman for an injury from the giv- ing way of such rail.' El Paso, etc.,, R. Co. V. Vizard, 211 U. S. 608, 53 L. Ed. 348, 29 S. Ct. 210. "There was testimony that plaintiff followed a common way of getting onto such a water car. Indeed, on an open, moving car, a hand rail running through standards on the side, and within easy reach, would naturally suggest doing just what the plaintiff did." El Paso, etc., R. Co. 7.: Vizard, 211 U. S. 608, 53 L. Ed. 348, 29 S. Ct. 210. 292-67. El Paso, etc., R. Co. r. Vizard, 211 U. S. 608, 53 L. Ed. 348, 29 S. Ct. 210. 293-73a. McCabe. etc., Constr. Co. v. Wilson, 209 U. S. 275, 52 L. Ed. 788, 28 S. Ct. 558, affirming 17 Okl. 355, 87 Pac. 320. 295-79. Substituting the word "would" for "could" in a requested instruction to the effect that an employee assumed the ordinary risks not only actually known to him. but so far as they could have been known to him by the exercise of ordinary care on his part, and that if he knew, or by the exercise of care and prudence could have known, of the defect, he could not recover, is not reversible error. Stand- ard Oil Co. V. Brown, 218 U. S. 78, 54 L. Ed. 939, 30 S. Ct. 669. 295-80. Instances. — Evidence tending to show that a spur railroad track was not a safe and proper structure for the opera- tion of cars is sufficient to carry to the jury, on the question of the negligence of the railway company, an action to recover for the killing of a brakeman while riding on a car which plunged over the end of the spur track, although the evidence for the railway company tended to show that the accident was due to the negligence of a fellow servant in ordering the car to be detached from the train and engine. Judg- ment (Ariz. 1905), 80 P. 337, affirmed. Gila Valley, etc., R. Co. v. Lyon, 203 U. S. 465, 51 L. Ed. 276, 27 S. Ct. 145. Whether an employee injured in direct line of his duty by a swinging bucket of a derrick had reason to expect it might swing across where he was at work with- out notice or warning, or whether due regard for his own safety required a con- stant lookout for its approach, are ques- tions for the jury under proper instruc- tions. Judgment (1907), 152 F. 120, 81 C. C. A. 338, 11 L. R. A. (N. S.) 684, re- versed. Kreigh v. Westinghouse, etc., Co., 214 U. S. 249, 53 L. Ed. 984, 29 S. Ct. 619. Expert testimony that proper construc- tion of a derrick required its boom to be rigged with two ropes, or the mast to be 857 298 MASTER AND SERVANT. Vol. VIII. Questions of Law. — See ante, "Contributory Negligence of Servant," III, E. G. Federal Employer's Liability Act. — Among the departures from the common law made by the Act of April 22, 1908, ZS St. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1909, p. 1071, are these: (a) The rule that the negli- gence of one employee resulting in injury to another was not to be attributed to their common employer is displaced by a rule imposing upon the -employer responsibility for such an injury, as was done at common law when the injured person was not an employee; (b) the rule exonerating an employer from lia- bility for injury sustained by an employee through the concurring negligence of the employer and the employee is abrogated in all instances where the em- ployer's violation of a statute enacted for the safety of his employees contrib- utes to the injury, and in other instances is displaced by the rule of comparative negligence, whereby the exoneration is only from a proportional part of the damages corresponding to the amount of negligence attributed to the employee; (c) the rule that an employee was deemed to assume the risk of injury, even if due to the employer's negligence, where the employee voluntarily entered or remained in the service with an actual or presumed knowledge of the con- ditions out of which the risk arose, is abrogated in all instances where the em- ployer's violation of a statute enacted for the safety of his employees contrib- uted to the injury; and (d) the rule denying a right of action for the death of one person, caused by the wrongful act or neglect of another, is displaced by a rule vesting such a right of action in the personal representatives of the de- ceased, for the benefit of designated relatives. ^-^ Effect on Contracts against Liability. — Existing as well as future con- tracts of the prescribed character fall within the condemnation in the Em- ployers' Liability Act of April 22, 1908, § 5, of "any contract, rule, regulation, or devise whatsoever, the purpose or intent of which shall be to enable any com- mon carrier to exempt itself from any liability created by this act."^^'' Constitutionality as to States. — See ante, Constitutionai, Law, p. 264; Due Process of Law, p. 475 ; Interstate and Foreign Commerce, p. 689. Constitutionality as to District of Columbia and Territories. — See ante. Interstate and Foreign Commerce, p. 689. provided with a lever to control the swine 298-82a. Departures from common law. of the boom, is sufficient to carry to the ■ — Second Employers' Liability Cases, ?23 jury the question whether injury to a U. S. 1, 5G L. Ed. 327, 32 S. Ct. 169. workman struck by the swinging bucket 298-82b. Contracts against liability.- — of a derrick not so equipped was not at- Philadelphia, etc., R. Co. v. Schuijert, 224 tributable to faults of construction and U. S. 603, 56 L. Ed. 911, 32 S. Ct. 589. equipment as well as to negligent opera- Stipulation making acceptance of rail- lion by fellow servants. Judgment (1907), way relief fund benefit release com- 152 F. 120. 81 C. C. A._ 338, 11 L. R. A. pany's liability.— Stipulations making the (N. S.) 684, reversed. Kreigh v. Westing- acceptance of benefits on account of the house, etc., Co., 214 U. S. 249, 53 L. Ed. injury or death of an employee under a 984, 29 S. Ct. 619. contract of membership in a railway re- No reversible error is committed in lief department equivalent to a release of leaving to the jury an action for personal the company's liability must be deemed injuries sustained by an employee from to fall within the condemnation in the a falling timber, while he was digging a Employers' Liability Act of April 22, post hole under a coal chute and other 1908, § 5, of "any contract, rule, regula- employees were tearing up a floor above tion, or devise whatsoever, the purpose him, with instructions that if the injury or intent of which shall be to enable any was due to the negligence of the master common carrier to exempt itself from any in sending men to work above the em- liability created by this act," especially in ployee, as a contributory cause, the mas- view of the proviso of that section per- ler was liable, but not if the iniury was rnitting a set-ofif of any sum which the due only to the negligence of fellow serv- company may have contributed toward ants in their way of performing their any benefit paid to the emploj^ee or his work. Texas, etc.. R. Co. v. Howell, 224 legal representative. Philadelphia, etc., U. S. 577, 56 L. Ed. 892, 32 S. Ct. 601. R. Co. v. Schubert, 224 U. S. 603, 56 L. Ed. 911, 32 S; Ct. 589. Vol. VIII. MASTER AND SERVANT. 298 As Abrogating Fellow Servant Rules. — See ante, Fe;i.i,ow Servants, p. 579. Jurisdiction of State and Federal Courts. — See ante, Courts, p. 398. IV. Liability of Master to Third Persons for Acts of Servant. B. For Tortious Acts. — One who employs a servant to do his work is an- swerable to strangers for the negligent acts or omissions of the servant, com- mitted in the course of the service. ^^'^ The master's responsibility can not be extended beyond the limits of the master's work. If the servant is doing his own work or that of some other, the master is not answerable for his negli- gence in the performance of it.^^'' This rule of law, though of comparatively modern origin, has come to be elementary. But, however clear the rule may be, its application to the infinitely varied affairs of life is not always easy, be- cause the facts which place a given case within or without the rule can not al- ways be ascertained with precision. The servant himself is, of course, liable for the consequences of his own carelessness. But when, as is so frequently the case, an attempt is made to impose upon the master the liability for those con- sequences, it sometimes becomes necessary to inquire who was the master at the very tnne of the negligent act or omission. s^° "The master" is the person in whose business the servant is engaged at the time, and who has the right to control and direct his conduct.^^*^ One may be in 298-85a. Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. "The reason for the rule is not clari- fied much by the Latin phrase in which it is sometimes clothed. They are rather restatements than explanations of the rule. The accepted reason for it is that given by Chief Justice Shaw in the case of Farwell v. Boston & W. R. Corp., 4 Met. 49, 38 Am. Dec. 339. In substance, it is that the master is answerable for the wrongs of his servant, not because he has authorized them nor because the servant, in his negligent conduct, represents the master, but because he is conducting the master's affairs, and the inaster is bound to see that his affairs are so conducted that others are not injured. It is said in that case that this is a 'great prin- ciple of social duty,' adopted 'from gen- eral considerations of policy and secu- rity.' " Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. 298-85b. Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. "The liability of a master for the acts of his servant extends only to such acts of the servant as are done by him in the course of the master's service. The m.as- ter is not liable for acts done by the serv- ant out of the scope of his duty, even though the master may have entered into a bargain that his servant should be em- ployed by another, and is paid for such service, as was done here. * * * 'jf j lend my servant to a contractor, who is to have the sole control and superintend- ence of the work contracted for, the independent contractor is alone liable for any wrongful act done by the servant while so employed. The servant is do- ing, not my work, but the work of the in- dependent contractor.' " Standard Oil Co. z: x\nderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. 298-85C. Standard Oil Co. z'. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. 298-85d. "The master."— Standard Oil Co. ?'. Anderson, 212 U. S. 215, 53 L. Ed. 480. 29 S. Ct. 252. "It sometimes happens that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with an- other. If that other fm-nithes him with men to do the work, and places them un- der his exclusive control in the per- formance of it, those men become pro hac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another tliat that other, for a considei-ation, sinill himself perform the work through servants of his ov.'u selection, retaining the direction and C(.in- trol of them. In the first case, he to whom ti'C workmen are fuinished is re- sponsible for tlieir negligence in the con- duct of the work, because the work is his work, and they are. for the time, his workmen. ]n the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negli- gence in the conduct of it, because, though it is done for the ultimate benefit of tlie other, it is still, in its doing, his own work. To determine whether a given case falls within the one class or the other we must inquire vihose is the work 859 298 MASTER AXD SERVANT. \o\. VIII. the general service of another, and, nevertheless, with respect to particular work, may be transferred, with his own consent or acquiescence, to the service of a third person, so that he becomes the servant of that person, wnth all the legal consequences of the new relation. '^^^ But the mere fact that a servant is sent to do work pointed out to him by a person who has made a bargain with his master does not make him that person's servant ; more than that is necessary to take him out of the relation established by the only contract which he has made, and to make him a voluntary subject of a new sovereign — as the master sometimes was called in the old books. ^*^^ being performed — a question which is usually answered by ascertaining who has the power to control and direct the serv- ants in the performance of their work. Here we must carefully distinguish be- tween authoritative direction and control, and mere suggestion as to details or the necessary co-operation, where the work furnished is part of a larger undertaking." Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. "In many of the cases the power of sub- stitution or discharge, the payment of wages, and other circumstances bearing upon the relation, are dwelt upon. They, however, are not the ultimate facts, but only those more or less useful in de- termining whose is the work and whose is the power of control." Standard Oil Co. V. Anderson, 212 U. S. 215, 53 L. Ed. 480. 29 3. Ct. 252. "These principles are sustained by the great weight of authority, to which some reference will now be made. The simplest case, and that which was earliest decided, was where horses and a driver were fur- nished by a liveryman. In such cases the hirer, though he suggests the course of the journey, and, in a certain sense, di- rects it, still does not become the mas- ter of the driver, and responsible for his negligence, unless he specifically directs or brings about the negligent act. Quar- man v. Burnett, 6 Mees. & W. 499; Jones V. Liverpool, L. R. 14, Q. B. Div. 890; Little V. Hackett, 116 U. S. 366, 29 L. Ed. 652, 6 S. Ct. 391. Though even in such cases, if the exclusive control over the driver be in the hirer, he may be respon- sible as master. Jones v. ScuUard (1898), 2 Q. B. 565." Standard Oil Co. v. Ander- son, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. 2S8-85e. Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. 298-85f. Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. A winchman in the general employ of a shipper remains the latter's employee for the purpose of fixing responsibility for injuries through his negligence upon a longshoreman employed by a master stevedore whose contract with the shipper to load a vessel requires him to pay the latter an agreed compensation for the hoisting, and who has no control over the movements of the winchman except that the latter's hours of labor necessarily con- form to those of the longshoremen, and that, in timing the raising and lowering, he obeys the signals of a gangman repre- senting the master stevedore. Judgment (1907), 152 F. 166, 81 C. C. A. 399, affirmed Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. "The winchman was, undoubtedly, in the general employ of the defendant, who selected him, paid his wages, and had the right to discharge him for incompe- tency, misconduct, or any other reason. In order to relieve the defendant from the results of the legal relation of master and servant it must appear that that relation, for the time, had been suspended, and a new like relation between the winchman and the stevedore had been created. The evidence in this case does not warrant the conclusion that this changed relation had come into existence. For reasons satis- factory to it the defendant preferred to do the work of hoisting itself, and re- ceived an agreed compensation for it. The power, the winch, the drum, and the winchman were its own. It did not fur- nish them, but furnished the work they did to the stevedore." Standard Oil Co. V. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. "^luch stress is laid upon the fact that the winchman obeyed the signals of the gangman, who represented the master stevedore, in tiining the raising and lower- ing of the cases of oil. But when one large general work is undertaken by dif- ferent persons, doing distinct parts of the same undertaking, there must be co- operation and co-ordination, or there will be chaos. The giving of the signals un- der the circumstances of this case was not the giving of orders, but of infor- mation; and the obedience to those signals showed co-operation rather than subordination, and is not enough to show that there has been a change of masters." Standard Oil Co. v. Anderson, 212 U. S. 215, 53 L. Ed. 480, 29 S. Ct. 252. 860 A'ol. Mil. MERCHAXT—MERCAXTILE—MERCHAXDISE. 312-338 MASTERS IN CHANCERY.— See post, Reference. MASTERS OF VESSELS.— See the title :\1asters of Vessels, vol. 300. and references there ?iven. In addition, see ante, AliExs_, p. 18. MATURE.— See note 3l2-2a. 8, p. MAXIMS. II. Equitable Maxims, 861. A. Relating to Parties. 861. 1. He \\'ho Seeks Equity ^lust Do Equity. 861. CROSS REFERENCES. See the title ^vIaxims, vol. 8, p. 313, and references there given. II. Equitable Maxims. A. Relating to Parties — 1. He Who Seeks Equity Must Do Equity. — This maxim applies to him who affirmatively seeks equitable relief. It does not apply where the relief asked is merely defensive. ^•'^^ MEASURED IN PLACE.— See note 327-2a. MEASURE OF DAMAGES.— See ante, Damages, p. 455. The specific titles should be consulted in everv instance. MECHANICAL EQUIVALENTS.— See post. Patents. MECHANICS' LIENS.— See the title Mechanics' Liens, vol. 8. p. 328, and references there given. MERCHANT— MERCANTILE— MERCHANDISE.— See note 1. 312-2a. Order of state court stating that rehearing was deemed on mature consideration. — An order of the highest stale court, made in passing upon the pe- tition for rehearing which recites that, "on mature consideration."' the prayer of said petition is denied, does not show that the court passed itpon the federal questions first raised by such petition, so as to sustain a writ of error from the su- preme court of the United States. Forbes V. State Council, 216 U. S. 396, 54 L. Ed. 534, 30 S. Ct. 295. 315-13a. He who seeks equity must do equity. — Columbus v. Mercantile Trust, etc.. Co.. 218 U. S. 645, 54 L. Ed. 1193, 31 S. Ct. 105. Thus the maxim does not justify a court in denying to a municipality rescis- sion under its cross bill of a contract with a waterworks company which the latter has broken by failing to maintain a con- tinuous and adequate supply of whole- some water, and in affirmatively restrain- ing the municipalit}' from establishing its own system unless it shall do equity to the bondholders of the waterworks com- pany by purchasing the tisable parts of the waterworks system. Columbus v. Mercantile Trust, etc., Co., 218 U. S. 645, 54 L. Ed. 1193. 31 S. Ct. 105. 327-2a. Measured in place. — See Bow- ers, etc.. Dredging Co. :'. United States. 211 U. S. 176, 53 L. Ed. 136. 29 S. Ct. 77. See post, MINES AXD MINERALS. 338-1. Mercantile pursuit. — "A corpora- tion engaged principally in running hotels is not a corporation engaged principally in 'trading' or 'mercantile pursuits.' An innkeeper is one who maintains a house for the entertainment of strangers, for a reasonable compensation. To secure this compensation he is given a lien upon the property of his guests within the inn. For this property he is under liability much like that of a common carrier. So long as he has room, he must receive all who may apply and are fit persons. He may not discriminate. To say that he buj^s and sells articles of food and drink is only true in a limited sense. Such ar- ticles are not bought to be sold, nor are they sold again, as in ordinary commerce. They are bought to be served as food or drink, and the price includes rent, service, heat, light, etc. To say that such a busi- ness is that of a 'trader' or a 'mercantile purstiit.' is giving those words an elas- ticity of meaning not according to com- mon usage." The keeping of a bar, cigar and news stand are obviously but or- dinary incidents to the main business when conducted within the inn, and primarily for the convenience of guests. The maintenance of a livery and of small pleasure boats for the accommodation of guests may also be accepted as merely in- cidental to that class of hotels called re- sorts. Toxawaj- Hotel Co. v. Smathers & Co.. 216 U. S. 439, 446, 54 L. Ed. 558, 30 861 338 MILITARY LAW. Vol. VIII. MERGER. — See the title Merger, vol. 8, p. 339, and references there given. In addition, see post, Res Adjudicata. METES AND BOUNDS.— See ante, Boundaries, p. 206. MILITARY COURTS.— See post, Military Law. MILITARY LAW. V. Military Tribunals, 863. B. Courts-Martial, 863. 5. Jurisdiction, 863. d. Over Offenses, 863. (3) Jurisdiction Not Exclusive over Civil Offenses Com- mitted by Soldiers, 863. 6. Procedure, 863. d. Evidence, 863. 7. Judgment and Sentence. 863. a. Requisites for Validity, 863. e. Mitigation and Commutation of Sentence, 863. 8. Review, 863. D. Provisional Courts for Trial of Civil Cases, 863. 1. Establishment and Duration, 863. 2y2. Jurisdiction, 864. 4. Conclusiveness of Judgment on Collateral Attack, 864. CROSS REFERENCES. See the title Military Law, vol. 8, p. 342, and references there given. S. Ct. 263. See ante, BANKRUPTCY, p. 168. A corporation engaged in conducting hotels at various points is not engaged principally in trading or mercantile pur- suits, so as to be liable to an involuntary adjudication in bankruptcy under the Bankrupt Act of July 1, 1898 (30 Stat, at L. 544, chap. 541, U. S. Comp. Stat. 1901, p. 3418), § 4, as amended by the Act of February 5, 1903 (32 Stat, at L. 797, chap. 487, U. S. Comp. Stat. Supp. 1909, p. 1309), although it also maintains two country stores, largely as an incident to the location of its hotels in a thinly set- tled mountainous region. Toxaway Hotel Co. V. Smathers & Co., 216 U. S. 439, 54 L. Ed. 55S, 30 S. Ct. 263. "Congress having never by express leg- islation declared an innkeeper a 'trader,' it must be presumed to have used the word in its well-understood public and judicial meaning, and cases based upon a parliamentary meaning are not in point. See Hall v. Cooley, Fed. Case No. 5,928, and In re Cote, Fed. Case No. 3,267, where Judge Lowell, referring to the declaratory act giving a list of occupations which should constitute trading, said that con- gress 'had not defined a tradesman and the question was therefore addressed to the common usage of this country and to the judge's knowledge of his own lan- guage.' He defined a tradesman 'as sub- stantially the same as shopkeeper.' In the case styled In re Smith, Fed. Case No. 12,981, the same learned judge adopted the definition of Bouvier, who defines a tradesman as 'one who makes it his busi- ness to buy merchandise or goods or chattels to sell again for the purpose of making a profit.' If the occupation of innkeeping is not 'trading,' it is not a 'mercantile pursuit,' for little more than a broader significance can be given to that term than to 'trading.' It is, in fact, trading in the larger sense. Mercantile is defined 'as having to do with trade or commerce; of or pertaining to merchants, or the traffic carried on by merchants' (Century Dictionary). To be principally engaged in a mercantile pursuit one must be carrying on commerce in some of its branches. See In re Cameron Insurance Co., 96 Fed. Rep. 756; Loveland on Bank- ruptcy, § 48; In re New York & W. Water Co., 98 Fed. Rep. 711. The conclusion we reach accords with that announced by the sixth circuit court of appeals in In re United States Hotel Co., 134 Fed. Rep. 225, where the matter is considered and the cases bearing upon the subject re- viewed." Toxaway Hotel Co. v. Smath- ers & Co., 216 U. S. 439, 447, 54 L. Ed. 558, 30 S. Ct. 263. 862 Vol. VIII. MILITARY LAW. 350-356 V. Military Tribunals. B. Courts -Martial — 5. Jurisdiction — d. Over Offenses — (3) Jurisdiction Xot Bxchisirc over Civil Offenses Committed by Soldiers. — The sixty-second article of war does not vest, nor purport to vest, exclusive jurisdiction in courts- martial, and civil courts have concurrent jurisdiction over all offenses com- mitted by a military officer which may be punished by a court-martial under the provisions of that article.'*"'^ 6. PROCEDURE^d. Evidence. — Proceedings of Courts of Inquiry. — A court- martial convened at a naval officer's request to investigate charges against him is not without jurisdiction because he was required, as a condition precedent, to waive protection of Rev. St. U. S., § 1624, art. 60 (U. S. Comp. St. 1901, p. 1119), by consenting to admission in evidence of the record of testimony intro- duced before a prior court of inquiry, with right to call additional witnesses. ^"^^ 7. Judgment and Sentence — a. Requisites for J^'alidity. — AMiere the court is of the minimum number, the incompetency of one member renders the pro- ceedings void ab initio. ^^'^ e. Mitigation and Comuiiitation of Sentence. — Reducing sentence of a court- martial, dismissing a naval officer from service, to suspension of five years on half sea pay. with a reduction in rank to the foot of the list of his grade, is a mitigation of sentence, within the provision of Rev. St. U. S., § 1624, art. 54 (U. S. Comp. St. 1901, p. 1119), that every officer authorized to convene a general court-martial shall have power, on revision of its proceedings, to "remit or mitigate,"' but not to "commute," the sentence of any such court which he is authorized to approve and confirm.'^*^'' Quaere, whether such statute applies to the president of the United States.^^^ 8. Review. — In General. — See note 67. D. Provisional Courts for Trial of Civil Cases — 1. Establishment and Duration. — The authority of a military government during the period between the cession and the action of congress, like the authority of the same govern- ment before the cession, is of large, though it may not be of unlimited, extent, and includes the authority to establish courts of justice, which are so essential a part of any government. ^^^^ 350-44a. Jurisdiction of courts-martial Civil courts can not review proceedings not exclusive. — Franklin i\ United States, and sentences of courts-martial, where 216 U. S. 559, 568, 54 L. Ed. 615. 30 S. Ct. they are legally organized and have ju- 434. risdiction of the offense and of the person 351-50a. Proceedings of court of in- of accused, and liave complied with statu- quiry. — ^luUan ;'. United States. 212 U. tor}^ requirements governing their pro- S. 516, 519, 53 L. Ed. 632. 29 S. Ct. 330. ceedings. Judgment (1907), 42 Ct. CI. 157, 351-51a. Judgment — Validity. — (1906') affirmed. Mullan v. United States, 212 Brown r. United States. 41 Ct. CI. 275. U. S. 516, 53 L. Ed. 632. 29 S. Ct. 330. judgment affirmed United States v. Brown, 356-85a. Establishment and duration. — 206 U. S. 240. 51 L. Ed. 1046. 27 S. Ct, Santiago r. Xogueras, 214 U. S. 260, 266, 620. 53 L. Ed. 9S9, 29 S. Ct. 60S. 353-66a. Mitigation of sentence. — Judg- Provisional court for Porto Rico. — The ments (1907). 42 Ct. CI.. 157. affirmed. creation of the provisional court for Porto Mullan V. United States. 212 U. S. 516, 53 Rico between April 11, 1899, when rati- L. Ed. 632. 29 S. Ct. 330. fications of the treaty by which it was 363-66b. Quasry — Application to presi- ceded were exchanged, and May 1, 1900, dent. — ;Mullan v. United States. 212 U. S. when Act April 12, 1900, 31 Stat. 77, c. 516. 521. 53 L. Ed. 632. 29 S. Ct. 330. 191, establishing a civil government, took 353-67. Appellate jurisdiction of civil effect, was within scope of the military court. — The decision of a militarj- tribu- power, acting by authority of the presi- nal acting within the scope of its lawful dent as commander in chief, though peace powers can not be reviewed or set aside then prevailed, and courts established un- by the courts. Reaves v. Ainsworth, 219 der Spain were open. Santiago v. No- U. S. 296. 55 L. Ed. 225. 31 S. Ct. 230, af- gueras. 214 U. S. 260. 53 L. Ed. 989, 29 S. firming judgment (1906), 28 App. D. C. Ct. 608. 157. "B^^ ihe ratifications of the treaty of 863 357-363 MINERAL. Vol. VIII. 2y2. Jurisdiction. — A controversy between a Porto Rican and a Spaniard furnishes diversity of citizenship which the order estabHshing the provisional court for Porto Rico made jurisdictional. ^^^ 4. CoNCLUsivENKss OF JUDGMENT OK COLLATERAL ATTACK. — Where the United States provisional court for Porto Rico had jurisdiction of the case and the parties, its decree is not open to collateral attack on the theory that it lost its jurisdiction by disregarding certain provisions of the code of civil procedure which were binding upon it.*^^^ MILITARY OFFICERS.— See ante, Army and Navy, p. 150. MILITARY TRIBUNALS.— See ante, Military Law, p. 862. MILITIA. — See the title [Militia, vol. 8, p. 358, and references there given. MILLS AND MILLDAMS.— See the title Mills and Milldams, vol. 8, p. 362. and references there given. MINERAL.— See note 1. peace, Porto Rico ceased to be subject to the crown of Spain and became subject to the legislative power of congress. But the civil government of the United States can not extend immediately and of its own force over conquered and ceded ter- ritory. Theoretically, congress might pre- pare and enact a scheme of civil govern- ment to take effect immediately upon the cession, but, practicallj^ there always have been delays and always will be. Time is required for a study of the situation and for the maturing and enacting of an ade- quate scheme of civil government. In the meantime, pending the action of congress, there is no civil power under our system of government, not even that of the presi- dent as civil executive, which can take the place of the government which has ceased to exist by the cession. Is it possible that, under such circumstances, there must be an interregnum? We think clearly not. The authority to govern such ceded terri- tory is found ui the laws applicable to conquest and cession." Santiago v. Xogueras, 214 U. S. 260, 265, 53 L. Ed. 989, 29 S. Ct. 608. In the case of Cross v. Harrison, 16 How. 1'64, 14 L. Ed. 889, a situation of this kind was referred to in the opinion of the court, where it said: "It (the military authority) was the government when the territory vi^as ceded as a conquest, and it did not cease, as a matter of course, or as a necessary consequence of the restora- tion of peace. The president might have dissolved it by withdrawing the army and navy officers who administered it, but he did not do so. Congress could have put an end to it, but that was not done. The right inference from the inaction of both is. that it was meant to be continued un- til it had been legislatively changed. Xo presumption of a contrary intention can be made. Whatever may have been the causes of delay, it must be presumed that the delay was consistent with the true policy of the government." And see Leitensdorfer v. Webb, 20 How. 176, 15 L. Ed. 891, and opinion of Mr. Justice Gray in Downes v. Bidwell, 182 U. S. 244, 345, 45 L. Ed. 1088; Santiago v. Xogueras, 214 U. S. 260, 265. 53 L. Ed. 989, 29 S. Ct. ,608. 357-88a. Jurisdiction of provisional court for Porto Rico. — Santiago v. Xogueras, 214 U. S. 260, 53 L. Ed. 989, 29 S. Ct. 608. 357-91a. Collateral attack on jurisdic- tion. — Santiago v. X'ogueras, 214 U. S. 260, 53 L. Ed. 989, 29 S. Ct. 608. See ante, JUDGMEXTS AXD DECREES, p. 807. 363-1. Mineral lands. — The authority to cut timber from a public domain under the Act of June 3, 1878, upon "lands be- ing mineral, and not subject to entry un- der existing laws of the United States, except from mineral entry," does not ex- tend to land adjacent to lands valuable for mineral purposes, but only includes lands known to be themselves valuable for minerals, which are the only lands ex- cliiQed by the federal statutes from any but mineral entry. United States v. Plow- man, 216 U. S. 372, 54 L. Ed. 523, 30 S. Ct. 299. See post, PUBLIC LAXDS. "Mineral surveyors are appointed by the surveyor general under Rev. Stat., § 2334, and their field of action is con- fined to the survej'ing of mining claims and to matters incident thereto. They act only at the solicitation of owners of sucli claims, and are paid by the owners, not by the government; but their charges must be within the maximum fixed by the commissioner of the general land of- fice, and their work must be done in con- formit}'- to regulations prescribed by that oflicer. They are required to take, an oath, and to execute a bond to the United States, as are many public officers. Within the limits of their authority they act in the stead of the surveyor general and under his direction, and in that sense are his deputies. The work which they do is the work of the government, and the surveys which they make are its sur- 864 A'ol. MIL MIXES AXD MIXERALS. 363 MINERAL LANDS.— See post, Mines and Minerals. MINERALS. — See post, Mines and Minerals. MINES AND MINERALS. III. Discovery and Location of Mines and Mining Claims, 866. B. Discovery and Appropriation, 866. C. ^^'ho May Locate Claims, 866. 2^. Officer, etc., of General Land Office, 866. 3. Deputy Mineral Surveyor, 866. E. Proceedings Incident to Location, 866. 1. In General, 866. 2. Local Laws and Regulations, 866. 4. Description and Notice, 867. 5. Amount of Land Which ]\Iav Be Included, 867. F. \'alidity and Priority. 868. 4. Rights of Prior Appropriators, 868. G. Forfeiture and Abandonment. 868. H. Relocation, 869. I. Necessity for Adversing Claim, 870. K. Repayment of Purchase Price, 870. IV. Mining Claims as Property, 870. A. In General, 870. B. Sale and Transfer. 870. V. Rights as Affected by Surface Boundaries, 87L A. In General. 871. 1. At Common Law, 871. B. Right to Pursue \'ein, 871. 1. The General Rule, 871. 2. Limitations upon the Rule, 871. e. Priorities, 871. XI. Right to the Use of Timber on Mineral Lands, 871. XIV. Taxation, 871. XVI. Procedure, 872. C. Recovery of Mining Claims, 872. veys. The right performance of their du- The location of a placer mining claim ties is of real concern, not merely to by a United States mineral surveyor is tiiose at whose solicitation they act, but within the prohibition of U. S. Rev. Stat., also to the owners of adjacent and con- § 452, U. S. Comp. Stat. 1901, p. 2.57, against flicting claims and to the government. Of the direct or indirect purchase by officers, the representatives of the governm.ent clerks and employees in the general land who have to do with the proceedings inci- office of any of the public land. Tlie pro- dent to applications for patents to mining hibition in § 4.52 is addressed not merely claims, they alone come in contact with to the officers of the general land office, the land itself, and have an opportunity or to its officers and clerks, l)ut to its to observe its situation and character, "officers, clerks, and employees." These and the extent and nature of the work words, taken collectively, are very com- done and improvements made thereon; prehensive, and easily embrace all per- and it is upon their reports that the sur- sons holding positions under that office veyor general makes the certificate re- and participating in the work assigned to quired by Rev. Stat., § 2325, which is a it, as is the case with mineral surveyors, prerequisite to the issuance of a parent.'' Waskey v. Hammer, 223 U. S. 85, 56 L. Waskey v. Hammer, 223 U. S. 85, 56 L. Ed. 359, 32 S. Ct. 187. See post, PUB- Ed. 359, 32 S. Ct. 187. See post, MINES LIC LAXDS. AXD MIXERALS: PUBLIC LAXDS. 12 U S Enc — 55 865 372-373 MINES AND MINERALS. Vol. VIII. 1. In General, 872. D. Action to Quiet Title, 872. XVIII. Offenses in Connection with Disposal of Mineral Lands, S72. A. Conspiracy to Defraud the Government, 872. B. Making Fraudulent Papers in Connection with Entry, 872. CROSS REFERENCES. See the title Mines and Minerals, vol. 8, p. 364, and references there given. III. Discovery and Location of Mines and Mining Claims. B. Discovery and Appropriation. — See note 20. Discovery is the all- important fact upon which title to mines depends. ^^^ A discovery without the limits of the claim, no matter what its proximity, does not suffice. ^o" The ex- clusion of that part of a location which embraces the place of the only discovery defeats the location and leaves the lands therein "open to exploration and sub- ject to claim for new discoveries. "^'-^'^ Although a discovery subsequent to lo- cation is valid, where no adverse claims intervene, where at the time of such subsequent discovery, the locator has become disqualified by reason of his hav- ing become a United State? mineral surveyor, his claim is void.^*^"^ C. Who May Locate Claims — 2^. Officer, etc., of the General Land Office. — The location of a placer mining claim, contrary to U. S. Rev. Stat., § 452, U. S. Comp. Stat. 1901, p. 257, prohibiting officers, clerks, and employ- ees in the general land office, under penalty of dismissal, from directly or in- directly purchasing or becoming interested in the purchase of the public land, is void, and not merely voidable at the instance of the government.22a 3. Deputy Mineral Surveyor. — See note 23. E. Proceedings Incident to Location — 1. In General. — Claims in Phil- ippine Islands. — The possession and working of a mining claim in the Phil- ippine Islands for the time requisite, under the Act of July 1, 1902 (32 Stat. 703, c. 1369), § 45, in order to establish a right to patent, need not have been under a claim of title.^^'^ 2. Local Laws and Regulations. — See note 31. 372-20. Subsequent discovery.— Waskey 223 U. S. 85. 91. 56 L. Ed. 359, 32 S. Ct. V. Hammer. 223 U. S. 85, 90, 56 L. Ed. 359, 187. 32 S. Ct. 187. 372-22a. Employee of land office. — Was- 372-20a. Source of title. — Lawson v. key 7'. Hammer, 223 U. S. 85, 56 L. Ed. United States Min. Co., 207 U. S. 1, 13, 359, 32 S. Ct. 187. 52 L. Ed. 65. 28 S. Ct. 15. 372-23. Deputy surveyor. — The location 372-20b. Discovery to be within limits of a placer mining claim by a United of claim. — Waskey z\ Hammer, 223 U. S. States mineral surveyor is within the pro- 85, 90, 56 L. Ed. 359, 32 S. Ct. 187. hibition of U. S. Rev. Stat., § 452, U. S. 372-20C. Exclusion from claim of place of Comp. Stat. 1901, p. 257, against the di- discovery. — Waskey z\ Hammer, 223 U. rect or indirect purchase by officers, clerks, S. 85, 91, 56 L. Ed. 359, 32 S. Ct. 187. and employees in the general land office A placer mining claim which nninten- of any of the public land. Waskey v. Ham- tionally included a trifle more than the mer, 223 U. S. 85, 56 L. Ed. 359, 32 S. Ct. maximum permitted area is invalidated 187. under U. S. Rev. Stat., §§ 2320, 2329, U. S. 373-30a. Claims in Philippine Islands. Comp. Stat. 1901, pp. 1424, 1432, making — Reavis v. Fianza, 215 U. S. 16, 54 L. the discovery of mineral within the limits Ed. 72, 30 S. Ct. 1. of the claim a prerequisite to the location, 373-31. Local regulations. — The require- when, h}^ the readjustment of its lines so ment of Arizona Rev. Stat., Par. 3241, as to exclude the excess, the point or that tlie location notice of relocation of place of the only prior mineral discovery a mining claim forfeited for failure to do was left outside the area included by the the necessary assessment work shall state readjusted lines. Waskey 7'. Hammer, that the claim was located as forfeited or 223 U. S. 85, 56 L. Ed. 359, 32 S. Ct. 187. abandoned property, is not in conflict 372-20d. Subsequent discovery where with U. S. Rev. Stat., § 2324, U. S. Comp. locator disqualified. — Waskey v. Hammer, Stat. 1901, p. 1427. permitting miners to 866 Vol. Mil. MINES AND MINERALS. 373-376 Effect of Acceptance of Location Notices Given before Act of 1866. — Acceptance by the government of lode mining location notices given before the Act of July 26, 1866, c. 262, 14 Stat. 251, recognizing the rights of locators who have proceeded in conformity to local customs or rules, and the issue of patents thereon, is a recognition by the land department of the conformity of the proceedings to the local rules and customs of the district, and such ruling is not open to challenge by third parties claiming rights arising subsequently to the notices.2^'^ 4. Description and Notice. — The object of posting the preliminary notice of the claim is to make known the purpose of the discoverer to claim title to the extent described and to warn others of the prior appropriation.^^'^ Notice on Relocation of Abandoned Claims. — See post, "Relocation,"' III, H. 5. Amount of Land Which ]\Iay Be; Included. — Coal Lands. — See note 43. make regulations as to location notices not in conflict with the laws of the United States or of the state or territory in which the mining district is situated, subject to the requirement that not less than $100 worth of work shall be performed or improvements made each year, and that, upon a failure to comply with such con- ditions, the claim or mine on which such failure occur shall be "open to relocation in the same manner as if no location of the same had ever been made." Clason V. Matko, 223 U. S. 646, 56 L. Ed. 588, 32 S. Ct. 392; Yosemite Gold Min., etc., Co. V. Emerson, 208 U. S. 25, 29, 52 L. Ed. 374, 28 S. Ct. 196. 373-31a. Effect of acceptance of no- tice, etc. — -Judgment, United States ]\Iin. Co. v. Lawson (1904) 134 F. 769, 67 C. C. A. 587. affirmed. Lawson v. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. 375-39a. Object of preliminary notice. — Lindlev on Mines (2d Ed.), § 350. Yo- semite Gold Min., etc., Co. v. Emerson, 208 U. S. 25. 31. 53 L. Ed. 374, 28 S. Ct. 196. Effect of failure to comply with rule as to one having full knowledge of location. — One who attempts to relocate a mining claim on the theory that the required amount of annual assessment work has not been done, with full knowledge of the location and boundaries of the claim, can not assert a forfeiture of title for failure, on the part of the original locators, to comply with the mining rules respect- ing notices of location. Judgment. Emer- son V. Yosemite Gold Min. & Mill. Co. (1906) 85 P. 122, 149 Cal. 50, affirmed. Yosemite Gold Min., etc., Co. v. Emerson, 208 U. S. 25, 52 L. Ed. 374, 28 S. Ct. 196. 376-43. Entry for another's benefit. — An entry of coal lands, made avowedly for the sole use and benefit of the entryman, but which, on a contested hearing, was shown to have been made at the instance of a corporation, and with its mone}'' and for its benefit, can not, for this reason, be deemed to have been fraudulently pro- cured, in contravention of U. S. Rev. Stat., §§ 2347-2352, U. S. Comp. Stat. 1901, pp. 1440, 1441, which forbids the acquisition of such lands in excess of the quantities pre- scribed, where there is nothing to show any efifort through this or like entries to evade the restrictions in respect of quan- tity. United States v. Colorado Anthracite Co., 225 U. S. 219, 56 L-.Ed. 1063, 32 S. Ct. 617. Entry for disqualified principal. — The prohibition against more than one entry of coal lands by the same person, which is made by Rev. St. U. S., § 2350 (U. S. Comp. St. 1901, p. 1441), prohibits a qualified person from entering such lands apparently for himself, but in fact as the agent for a person who is himself dis- qualified because he has already purchased the full quantity permitted by law. Or- der (D. C. 1907), 157 F. 396. reversed. United States v. Keitel, 211 U. S. 370. 53 L. Ed. 230. 29 S. Ct. 123; United States V. Herr, 211 U. S. 404, 53 L. Ed. 251, 29 S. Ct. 134; S. C, 211 U. S. 406, 53 L. Ed. 252, 29 S. Ct. 135. Persons entitled, under Rev. St. U. S.. §§ 2348, 2349 (U. S. Comp. St. 1901, p. 1440), to a preferential right of entry of coal lands, are prevented by § 2350 (page 1441), prohibiting the making of more than one entry by the same person, from entering such lands apparently for them- selves, but in fact as agents for a person who is himself disqualified because he has already purchased the full quantity per- mitted by law. United States f. Forres- ter, 211 U. S. 399, 53 L. Ed. 245, 29 S. Ct. 132; United States v. Herr, 211 U. S. 404, 53 L. Ed. 251, 29 S. Ct. 134. The same rule applies as to entries by agents for corporations who are disquali- fied. United States v. Munday, 222 U. S. 175, 56 L. Ed. 149. 32 S. Ct. 53, revers- ing judgment (C. C), 186 F 375. "The statute imposes no limitations on the right of the purchaser who has ac- quired coal land from the United States to sell the same after he has become the owner of the land. The absence, how- ever, of the limitation on the power to 867 376-381 MINES AND MINERALS. Vol. VIII. Thie policy of the restriction in § 2347 of the Revised Statutes in refer- ence to entry in coal lands was to prevent a monopolization of such coal lands by securing to every citizen the right to obtain for himself one tract, not ex- ceeding one hundred and sixty acres, of such coal land.^-^^ Mineral Lands in the Philippines. — The limitation of § 22, of Philippine Act of July 1, 1902, as to size of mining claims, applies only to claims located after the passage of the act.-*-"" F. Validity and Priority — 4. Rights of Prior Appropriators. — See note 58. Philippine Mining Claims Held in Possession by Natives for Re- quired Term. — An adverse claim which will defeat the right to a patent under the Act of July 1, 1902 (32 Stat. 703, c. 1369), § 45, when natives and their an- cestors have held possession and worked mining claims in the Philippine Islands for the period required, can not be based upon entry and staking of claim and filing notice of location, where such possession was continuous down to the bringing of suit to restrain the person relying upon such acts as amounting to an adverse claim from setting up title or interfering with the claims. ^^'^ G. Forfeiture and Abandonment. — See note 62. Distinctions. — There may be a distinction between the abandonment of a claim and its forfeiture, but no distinction was intended under § 3241, Rev. Stat., Arizona, providing for "the relocation of forfeited or abandoned lode claims."*'-^ sell after acquisition affords no ground for saying that the express prohibition of the statute against more than one en- try by the same person should not be in- forced according to its plain meaning. This clearly follows, since the right to sell that which one has lawfully acquired neither directly or indirectly implies the authority to unlawfully acquire in viola- tion of an express prohibition." United States V. Keitel, 211 U. S. 370, 389, 53 L. Ed. 230, 29 S. Ct. 123. "It is a inisconception to assume that there is any real identity between a pui-- chase made by a qualified person in his own name and for himself with a pur- chase made by such person ostensibly for himself but really as the agent of a dis- qualified person. In the one case the per- son securing coal land from the United States for himself is free to dispose of the land after acquisition as he may deem best for his interest and for the develop- ment of the property acquired. In the other case the ostensible purchaser ac- quires with no dominion or control over the property, with no power to deal with it free from the control of the disqualified person for whose benefit the purchase was made." United States v. Keitel, 211 U. S. 370, 390, .53 L. Ed. 230, 29 S. Ct. 123. Applies to unsurveyed coal lands in Alaska. — The restriction to one entry by the same person, made by Rev. St., § 2350 (U. S. Comp. St. 1901, p. 1441), governing entries of coal lands under the three pre- ceding sections, which relate solely to surveyed lands, and which were expressly extended to Alaska by Act June 6, 1900, c. 796, 31 Stat. 658 (U. S. Comp. St. 1901, p. 1441), was made applicable to entries on unsurveyed coal lands in Alaska by Act April 28, 1904, c. 1772, 33 Stat. 525 (U. S. Comp. St. Supp. 1909, p. 556), enacted solely to provide for the sale of such lands, and continuing in force in Alaska all the coal land laws of the United States not in conflict with its provisions, the fact that such statute imposes no restric- tions upon alienation by one who has made a lawful location not warranting a different conclusion, and the words, "the three preceding sections," found in sec- tion 2350, having no material significance, but having been necessitated because the provisions of the original act of March 3, 1873 (chapter 279, 17 Stat. 607), when carried into the Revised Statutes, were made a part of the general land law em- bracing the sale of other public lands. United States v. Munday. 222 U. S. 175, 56 L. Ed. 149, 32 S. Ct. 53. 376-43a. Policy of restriction. — United States V. Trinidad Coal, etc., Co., 137 U. S. 160, 169, 34 L. Ed. 640; United States V. Keitel, 211 U. S. 370, 53 L. Ed. 230, 29 S. Ct. 123; United States v. Munday, 222 U. S. 175, 181, 56 L. Ed. 149. 32 S. Ct. 53. 376-43b. Mineral lands in the Philip- pines.— Reavis V. Fianza, 215 U. S. 16, 23, 54 L. Ed. 72, 30 S. Ct. 1. 380-58. Territory covered by prior loca- tion.— Swanson V. Sears, 224 U. S. 180, 181, 56 L. Ed. 721, 32 S. Ct. 455. 380-58a. Philippine mining claims. — Reavis v. Fianza, 215 U. S. 18. 54 L. Ed. 72, 30 S. Ct. 1. 381-62. Failure to perform conditions subsequent. — Brac'^'ord v. Morrison, 212 U. S. 389, 390, 53 L. Ed. 564, 29 S. Ct. 349. 381-62a. Distinctions. — Clason v. Matko, 223 U. S. 646, 56 L. Ed. 588, 32 S. Ct. 392. 868 Vol. VIII. MINES AND MINERALS. 381 Noncompliance with Rules as to Notice. — Quaere, whether a forfeiture will arise from a violation of requirements of a local rule as to notice, where such rule did not make non-compliance a cause of forfeiture.''-*' Acquiescence in Invalid Judicial Sale. — The acquiescence by the judg- ment debtor in an invalid judicial sale of his interest in a mining claim can not be regarded as an abandonment of the claim and an election to accept the sale as a disposition of his property.*^"' -'^ See ante. Estoppel, p. 553 ; Iudicial Sales, p. 812. Conflicting Locations. — Evidence is admissible on behalf of the third lo- cator of a lode mining claim which tends to establish the existence of a valid and subsisting location prior to the location which such third locator is adver- tising.*'-'^ H. Relocation. — See note 64. Location after Abandonment. — Ground embraced in a mining location may become a part of the public domain so as to be subject to another location be- fore the expiration of the statutory period for performing annual labor if, at the time when the second location is made, there has been an actual abandon- ment of the claim by the first locator. '''^'^ And where in such case the right of the first locator has been lost through failure to adverse the second location, the burden is on a subsequent locator to show that the second location is not a valid one.*'^'' Notice upon Location of Forfeited Claims in Arizona. — A notice of lo- cation of mining of property forfeited for failure to do the necessary assess- ment work must state that the property has been forfeited or abandoned, under Ariz. Rev. Stat., par. 3241, providing for the "relocation of forfeited or aban- doned lode claims" in one of two specified methods, and that in either case a new location monument shall be erected and the location notice shall state if the whole or any part of the new location is "located as abandoned property," or it will be void."'*'^ 381-62b. Noncompliance with rules as to notice. — Yosemite Gold Min., etc., Co. c'. Emerson, 208 U. S. 25, 30, 52 L. Ed. 374, 28 S. Ct. 196. 381-62C. Acquiescence in invalid judicial sale. — Judgment in Dj'e v. Crarv (N. M. 1906), 85 P. 1038, 9 L. R. A. (N.' S.) 1136, affirmed. Crarv v. Dye, 208 U. S. 515, 52 L. Ed. 595, 28 S. Ct. 360. 381-63a. Conflicting locations. — Judg- ment in Lockhart v. Farrell (1906), 86 P. 1077, 31 Utah 155, reversed. Farrell z'. Lockhart, 210 U. S. 142, 52 L. Ed. 994. 28 S. Ct. 681; Qualifying: Eavagnino v. Uhlig, 198 U. S. 443, 49 L. Ed. 1119. It is to be observed that this qualifica- tion but permits a third locator to offer proof tending to establish the existence of a valid and subsisting location anterior to that of the location which is being ad- versed. It does not, therefore, include the conception that the mere fact that a senior location had been made, and that the statutory period for performing the annual labor had not expired when the second location was made, would con- clusively establish that the location was a valid and subsisting location, preventing the initiation of rights in the ground by another claimant, if at the time of such second location there had been an actual abandonment of the original senior loca- tion. Judgment, Lockhart z<. Farrell (1906), 86 P. 1077, 31 Utah 155, reversed. Farrell t'. Lockhart, 210 U. S. 142, 52 L. Ed. 994, 28 S. Ct. 681. 381-64. Relocation. — An attempted lo- cation of a mining claim, based upon a discovery within a then valid and sub- sisting claim, is absolutely void for the purpose of founding an adverse claim, and does not attach upon the subsequent fail- ure of the first locator to do the required annual assessment work. Swanson v. Sears, 224 U. S. 180. 56 L. Ed. 721, 32 S. Ct. 455. 381-64a. Relocation of abandoned claim.— Farrell 7-. Lockhart, 210 U. S. 142, 147, 52 L. Ed. 994, 28 S. Ct. 681. 381-64b. Burden of proof. — Farrell r. Lockhart, 210 U. S. 142, 52 L. Ed. 994, 28 S. Ct. 681. 381-64C. Notice upon location of for- feited claims in Arizona. — Clason z'. Matko, 223 U. S. 646, 56 L. Ed. 588, 32 S. Ct. 392. Such statute is not in conliict with U. S. Rev. Stat., § 2324, U. S. Comp. Stat. 1901, p. 1427. Clason z'. Matko, 223 U. S. 646. 655, 56 L. Ed. 588, 3L S. Ct. 392. 869 382-383 MINES AND MINERALS. Vol. VIII. I. Necessity for Adversing Claim. — See note 65. Prospective underground conflicts are not the subject of adverse claims.^^^ K. Repayment of Purchase Price. — The Act of June 16, 1880, § 2, pro- vides that where an entry has been erroneously allowed and is duly canceled the purchase price shall be repaid to the person who made such entry, or his heirs or assigns. ^"^^ IV. Mining Claims as Property. A. In General. — See note 68. B. Sale and Transfer. — Conditions. — The deposit of the net proceeds from ores in a designated bank, to be credited on the purchase price, as stipu- lated in a contract for the sale of mines, under which the purchaser was given possession and the deed was placed in escrow, to be delivered upon perform- ance of his undertakings, is a condition concurrent with the obligation of the vendor to allow the purchaser to remain in possession, and precedent to the vendor's obligation to convey." ^^ The purchaser in possession can not claim damages for his dispossession by the vendor because of the failure to make deposits in accordance with such condition without showing a valid excuse 382-65. Necessity for adversing claim. — Farrell v. Lockhart. 210 U. S. 142, 148, 52 L. Ed. 994, 28 S. Ct. 681. 382-65a. Where surface rights do not conflict. — "If the surface ground included in an application does not conflict with that of an adjoining claimant, the latter is in no position to question the right of the former to a patent. Take the not in- frequent case of two claims adjoining each other, the boundary line between which is undisputed. If the owner of one applies for a patent, the owner of the other is clearly under no obligation to ad- verse that application, even if under any circumstances he might have a right to do so. Other necessary conditions being proved, the applicant is entitled to a pat- ent for the ground. Generally speaking, if the boundary between the two claims is undisputed the foundation for an ad- verse suit is lacking." Lawson v. United States Min. Co., 207 U. S. 1, 17, 52 L. Ed. 65. 28 S. Ct. 15. 382-67a. Repayment of purchase price. — United States v. Colorado Anthracite Co., 225 U. S. 219, 56 L. Ed. 1063, 32 S. Ct. 617. "Person who made such entry," — One who makes an entry of coal lands avowedly for his own use and benefit is "the person who made such entry," within the meaning of the Act of June 16, 1880 (21 Stat, at L. 287, chap. 244, U. S. Comp. Stat. 1901, p. 1416), § 2, providing for the repayiTient of the purchase price in case of subsequent cancellation, although he made the entry at the instance of a cor- poration, with its money and for its bene- fit. United States v. Colorado Anthracite Co., 225 U. S. 219, 56 L- Ed. 1063, 32 S. Ct. 617. Who are "assigns." — The corporate grantee in a quitclaim deed to public coal land, executed by a person who, having then no interest therein, afterwards made an entry avowedly for his sole use and benefit, but actually at the instance of the corporation, with its money and for its benefit, is his "assign"' within the meaning of the Act of June 16, 1880, § 2, providing for the repayment of the pur- chase price in case of subsequent cancel- lation of the entry "to the person who made such entry, or to his heirs or as- signs." United States v. Colorado An- thracite Co., 225 U. S. 219, 56 L. Ed. 1063, 32 S. Ct. 617. Where entry fraudulently procured. — The right to the payment of the purchase price of public coal lands, given by the Act of June 16, 1880, § 2, where the en- try is subsequently canceled because "erroneously allowed," does not extend to cases where the entry was fraudulently procured. United States v. Colorado An- thracite Co., 225 U. S. 219, 56 L. Ed. 1063, 32 S. Ct. 617. 383-68. Bradford v. Morrison, 212 U. S. 389, 395. 53 L. Ed. 564, 29 S. Ct. 349. See, also. Elder v. Wood. 208 U. S. 226, 232, 52 L. Ed. 464, 28 S. Ct. 263. Subject to lien of judgment. — Unpat- ented lode mining claims are "real prop- erty," and as such are subject to the lien of a judgment recovered against their owner when docketed pursuant to Ariz. Laws 1891, Act No. 50, § 4, making: :i docketed judgment a lien upon the judg- ment debtor's real property, the term be- ing defined by a territorial statute in force when the judgment in question was rendered and docketed as coextensive with lands, tenements, and hereditaments. Bradford r. Morrison, 212 U. S. 389, 53 L. Ed. 564, 29 S. Ct. 349. 383-70a. Conditions. — World's Fair Min. Co. V. Powers, 224 U. S. 173, 56 L. Ed. 717, 32 S. Ct. 453. 870 Vol. VIII. MINES AND MINERALS. 383-407 therefor.'^*^'' The breach of such condition is not excused by attachment pro- ceedings and other acts of the vendor, hindering, but not preventing, perform- ance.'^ ^'^ V. Rights as Affected by Surface Boundaries. A. In General — 1. At Common Law. — See note 71. B. Right to Pursue Vein — 1. The General Rulb. — A lode mining claim owner has the right to the ore beneath his claim in a vein not having its apex th.ere, subject only to the right of the owner of the claim where such vein apexes to follow it downward on its dip."^^ Burden of Proof of Ownership of Apex. — While proof of ownership of the apex may be proof of the ownership of the vein descending on its dip below the surface of property belonging to another, such ownership of the apex must first be established before any extraterritorial title."^" 2. Limitations upon the Rule — e. Priorities. — See note 95. Priority of entry and patent does not conclusively establish seniority of location, so as to give the holder of a lode mining claim under such patent the right to the entire width of the vein on its dip, where part of the apex of such vein is within such claim and part within an adjoining claim. ^^^ XI. Right to the Use of Timber on Mineral Lands. The rights conferred by the Act of June 3, 1878, does not extend to adjacent iand.^s^ XIV. Taxation. See note 63. 383-70b. Damages for dispossession be- cause of nonperformance. — World's Fair Min. Co. V. Powers, 2:24 U. S. 173, 56 L. Ed. 717. 32 S. Ct. 453. 383-70C. Excuses for failure to perform. — World's Fair Min. Co. v. Powers, 224 U. S. 173, 56 L. Ed. 717. 32 S. Ct. 453. 384-71. Title by patent from the United States to a tract of ground, theretofore public, prima facie carries ownership of all beneath the surface, and possession under such patent of the surface is pre- sumptively possession of all beneath the surface. This is the general law of real estate. Lawson v. United States Min. Co.. 207 U. S. 1, 8, 52 L. Ed. 65, 28 S. Ct. 15. In respect to mining property, this pre- sumption of title to mineral beneath the surface may be overthrown by proof that such mineral is a part of a vein apexing in a claim belonging to some other party. Lawson V. United States Min. Col, 207 U. S. 1, 53 L. Ed. 65, 28 S. Ct. 15. See post, "Right to Pursue Vein," V, B. 384-78a. Right to pursue vein. — IMam- moth Min. Co. v. Grand Cent. Min. Co., 213 U. S. 72, 53 L. Ed. 702, 29 S. Ct. 413. 384-78b. Burden of proof of ownership of apex. — Lawson i\ United States Min. Co., 207 U. S. 1, S, 52 L. Ed. 65, 28 S. Ct. 15. 389-95. The senior location takes the en- tire width of the vein on its dip, v.here the apex of such vein is partly within two or more adjacent lode mining claims. Judg- ment, United States Min. Co. v. Lawson (1904) 134 F. 769, 67 C. C. A. 587, affirmed. Lawson v. United States Min. Co., 207 U. S. 1, 52 L. Ed. (55, 28 S. Ct. 15. 389-96a. Priority of entry and patent. — Judgment, United States Min. Co. v. Law^- son (1904) 134 F. 769, 67 C. C. A. 587, af- firmed. Lawson V. L'nited States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. 405-58a. Adjacent land. — The authority to cut timber from the public domain un- der the Act of June 3, 1878 (20 Stat, at L. 88, chap. 150, U. S. Comp. Stat. 1901, p. 1528), upon "lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry," does not extend to land adjacent to lands valuable for mineral purposes, but onl}^ includes lands known to be them- selves valuable for minerals, which are the only lands excluded by the federal statutes from any but mineral entry. United States v. Plowman, 216 U. S. 372, 54 L. Ed. 523, 30 S. Ct. 299. 407-63. Taxation — Sale for taxes. — Lands of the United States are not taxed in violation of the Act of March 3. 1875, by the imposition of a tax upon the right of possession, for mining purposes, of a lode mining claim, and the enforce- ment of the collection of such t^x by a sale of such riarht of possession. Elder v. Wood. 208 U S. 226, 52 L. Ed. 464, 28 S. Ct. 263. An individual interest in a valid sub- sisting mining location has been held to be property, distinct from the land itself, vendible, inheritable and taxable. Forbes V. Gracey, 94 U. S. 762, 24 L. Ed. 313; 871 408-416 MIXES AND MIXERALS. Vol. VIII. XVI. Procedure. C. Recovery of Mining Claims — 1. In General. — Presumption as to Rights Determined. — In the absence of the record of an adverse suit, there is no presumption that subterranean rights under lode mining locations were therein considered and determined.'"^ D. Action to Quiet Title. — Holder of Patent in Possession. — The holder, through a patent from the United States, of the legal title to a lode mining claim, in possession, may maintain a suit in equity, in a federal circuit court sitting in Utah without a prior adjudication in an action at law of its legal title, to cjuiet title and to restrain defendants from further mining or removing ore from beneath the surface of such claim, in view of the provisions of Utah Rev. Stat., § 3511, that an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim. '^^^ XVIII. Offenses in Connection with Disposal of Mineral Lands. A. Conspiracy to. Defraud the Government.- — A conspiracy to obtain title to coal lands of the United States, in clear violation of the prohibition of the coal-land laws against making more than one entry, is embraced bv the provi- sion of U. S. Rev. Stat., § 5440, U. S. Comp. Stat. 1901, p. 3676, making crim- inal conspiracies "to defraud the United States in any manner or for any pur- pose. "^^^ B. Making Fraudulent Papers in Connection with Entry. — Making and presenting false, fictitious and fraudulent papers in connection with an entry of coal lands is not made criminal. ^'^'' Belk V. Meagher. 104 U. S. 279, 284, 26 L. Ed. 735; Manuel v. Wulff, 152 U. S. 505, 510, 38 L. Ed. 532; St. Louis Min., etc., Co. V. Montana Min. Co., 171 U. S. 650, 655, 43 L. Ed. 320. A state, therefore, has the power to tax such interest and enforce the collection of the tax by sale. The tax deed conveys merely the right of posses- sion and affects no interest of the United States. Elder v. Wood, 208 U. S. 226, 232, 52 L. Ed. 464, 28 S. Ct. 263. 408-70a. Presumption as to rights de- termined. — "A patent is issued for the land described and all thai is necessarily determined in an adverse suit is the prior- ity of right to the land. This is evident* from § 2325, Rev. Stat., which says: 'A patent for any land claimed and located for valuable deposit may be obtained in the following" manner.' In the section the only matters mentioned for examination and consideration relate to the surface of the ground. There is no suggestion or provision for any inquiry or determination of subterranean rights. Lindley, in his work on Mines, 2nd Ed., vol. 2. § 730, sav<;: 'An application for patent invites only such contests as affects the surface area. A possible union of veins underneath the surface can not be foreshadowed at the time the application is made. When such a condition arises, it is adjusted by refer- ence to surface apex ownership and pri- ority of location not involving any sur- face conllict. The rule is well settled that conflicting adverse rights set up to defeat an application for patent can not be recog- nized in the absence of an alleged surface conflict. Prospective underground con- flicts are not the subject of adverse claims.' '" Lawson f. United States ]\Iin. Co., 207 U. S. ], 16, 52 L. Ed. 65, 28 S. Ct. 15. 411-84a. Holder of patent in possession. — Lawson r. United States Min. Co., 207 U. S. 1, 19, 52 L. Ed. 65, 28 S. Ct. 15. 416-lOa. Conspiracy. — United States v. Keitel. 211 U. S. .'^70, 53 L. Ed. 230, 29 S. Ct. 123. Sec ante, CONSPIRACY, p. 256. 418-lOb. False, etc., papers — Entry of coal lands. — Making and presenting false, fictitious, and fraudulent papers in con- nection with an entry of coal lands is not made criminal by Rev. St. U. S., § 4746, as amended by Act July 7, 1808, c. 578, 30 Stat. 718 (U. S. Comp. St. 1901. p. 3279), because such amendatory statute, in re- peating the original words, "concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the commissioner of pensions," adds the words "or of the sec- retary of the interior," since such section as originally enacted related exclusively to pension or bounty land claims, and every enumeration or description of new acts or papers, in addition to those em- braced in the section prior to the amend- ment, alone concerns pension or bounty land claims. Order (D. C. 1907) 157 F. 396, reversed. United States v. Keitel, 211 U. S. 370. 53 L. Ed. 230. 29 S. Ct. 123; United States v. Herr, 211 U. S. 404. 53 L. Ed. 251, 29 S. Ct. 134; S. C, 211 U. S. 406, 53 L. Ed. 252, 29 S. Ct. 135. 872 \ol. VIII. MITIGATIOX OF SEXTEXCE. 416-429 MINISTERIAL. — See ante. Judicial, Legislative and Ministerial, p. 810. MINISTERIAL ACTION.— See post. Public Officers. MINISTERIAL DUTIES.— See ante, Mandamus, p. 838. MINORS. — See ante. Infants, p. 655. MINUTE ENTRIES.— See post. Records. MISAPPLICATION OF FUNDS.— See ante, Banks and Banking, p. 184. MISBRANDED.— See note 416-a. MISBRANDING GOODS.— See ante. Interstate and Foreign Commerce, p. 689. MISDEMEANOR.— See ante. Criminal Law, p. 434. MISJOINDER OF ACTIONS.— See ante. Actions, p. 7; post. Multifa- riousness. MISJOINDER OF PARTIES.— See post. Multifariousness; Parties. MISREPRESENTATION.— See ante. Fraud and Deceit, p. 597; Insur- ance, p. 674. MISTAKE AND ACCIDENT.— See the title IVIistake and Accident, vol. 8, p. 417, and references there given. MISUSER.— See post. Quo Warranto. MITIGATION OF SENTENCE.— See note 429-a. 416-a. Misbranded within meaning of Food and Drugs Act. — False and mis- leading statements in the labels on a pro- prietary medicine as to its curative or remedial effects, but which do not im- port any statement concerning identitj', are not misbranding, within the meaning of the Food and Drugs Act of June 30. 1906 (34 Stat, at L. 768, chap. 3915, U. S. Comp. Stat. Supp. 1908. p. 1187). § 8, which defines that term as applicable to all drugs or articles of food, the package or label of which shall bear any state- ment, design, or device regarding such article or the ingredients or substances contained therein which shall be false or misleading in any particular. United States r. Johnson, 221 U. S. 488, 55 L. Ed. 823, 31 S. Ct. 627. See ante, references under FOODS AXD DRUGS, p. 584. And see post. POLICE POWER. It will be observed that in its enumera- tion of the acts which constitute a viola- tion of the statute, congress has not in- cluded the failure to disclose the in- gredients of the article, save in specific instances where, for example, morphine, opium, cocaine, or other substances par- ticularly mentioned, are present. It is provided that the article "for the pur- po.-es of this act"' (the Food and Drugs Act) shall be deemed to be misbranded if the package or label bear any state- ment, design or device regarding it or the ingredients or substances it contains, which shall be false or misleading (§ 8"). But this does not cover the entire ground. It is one thing to make a false or mis- leading statement regarding the article or its ingredients, and it may be quite another to give no information as to what the ingredients are. As is well known, products may be sold, and in case of so- called proprietary articles frequently are sold, under trade names which do not reveal the ingredients of the composition and the proprietors refrain from reveal- ing tliem. r^Ioreover, in defining what shall be adulteration or misbranding for the purpose of the federal act, it is pro- vided that mixtures or compounds known as articles of food under their own dis- tinctive names, not taking or imitating the distinctive name of another article, which do not contain "any added poison- ous or deleterious ingredients'' shall not be deemed to be adulterated or mis- branded if the name be accompanied on the same label or brand with a statement of the place of manufacture (§ 8). Sav- age f. Jones. 225 U. S. 501, 531. 56 L. Ed. 1182. 32 S. Ct. 715. 429-a. Mitigation and commutation dis- tinguished. — It may be conceded th^t there is a technical difference between the commutation of a sentence and the miti- gation thereof. The first is a change of a punishment to which a person has been condemned into one less severe, substi- tuting a less for a greater punishment by authority of law. To mitigate a sentence is to reduce or lessen the amount of the penalty or punishment. The reduction of a sentence of a court-martial, which dis- misses a naval officer from the services, to suspension for five years on half sea- pay, with a reduction in rank to the foot of the list of officers of his rank, is a mitigation of the sentence within the meaning of United States Revised Stat- utes. § 1624, that every oflicer who is au- thorized to convene a court-martial shall have power, on reversion of its proceed- ing, to "remit or mitigate" but "not to commute"' the sentence of any such court which he is authorized to approve and confirm. Mullan z: United States, 212 U. S. 516. 53 L. Ed. 632, 29 S. Ct. 330. 873 429 MONOPOLIES AND CORPORATE TRUSTS. Vol. VIII. MIXED JURY.— See ante, Civil Rights, p. 236; Jury, p. 813. MONEY.— See note 3. MONOPOLIES AND CORPORATE TRUSTS. I. Definition and General Nature, 875. II. At Common Law, 875. III. Constitutional and Statutory Provisions, 877. B. State Constitutions and Statutes, 877. 2. Under the Acts of States, 877. a. In General, 877. b. Constitutionality of State Statutes, 877. c. Remedies under the Statutes, 878. (2) Remedies against Corporations. 878. d. Effect of Contracts, 878. C. Under the Act of Congress, 878. 1. The Act Stated, 878. 2. Constitutionality of Act, 878. 3. General Construction of Act, 878. a. In General, 878. c. Protects Only Interstate and International Trade or Com- merce, 880. d. Restraint Must Be Direct. 881. e. Embraces All Restraints. 881. 4. Pleading and Practice, 887. a. Criminal Prosecution, 887. b. Civil Remedies, 887. (2) Injunctions, 887. (3) Actions for Damages, 890. fa) In General, 890. 5. Effect on Contracts. 890. CROSS REFERENCES. See the title Monopolies and Corporate Trusts, vol. 8. p. 431, and refer- ences there given. In addition, see ante. Appeal and Error, p. 34; Constitutional Law, p. 264; Due Process oe Law, p. 475; Foreign Corporations, p. 584; post, Patents; Quo Warranto. As to allegations of facts prior to passage of antitrust act being harmless error, see ante, Appeal and Error, p. 34. As to exclusion by states of cor- porations that constitute monopolies or trusts, see ante. Constitlttional Law, 429-3. Fees and emoluments as money. United States, but as the amount allowed — The duty of a clerk of a federal district to him for his compensation and ofifice court to pay over to the United States expenses under the statutes defining his the surplus fees and emoluments of his rights and duties, and with respect to the ofifice which his half-yearly return or the amount payable when the return is made, audit thereof shown to exist over and the clerk is not a trustee, but a debtor, above the compensation and allowances The amount with which the clerk is authorized by law to be retained by him chargeable upon his accounting is not the is not governed by the federal statutes re- "public money" or "the money or prop- lating to the embezzlement of "public erty of the United States" within the money" or "money or property of the meaning of their provisions. United United States," but such fees and emolu- States v. Mason, 218 U. S. 517, 54 L. Ed. ments are received by the clerk, not as 1133, 31 S. Ct. 28. See ante, CLERKS moneys or property belonging to the OF COURT, p. 241. 874 Vol. VIII. MONOPOLIES AND CORPORATE TRUSTS. 432-433 p. 264; Due Process of Law, p. 475; Foreign Corporations, p. 584; Im- pairment OF Obligation of Contracts, p. 624. As to constitutionality of provisions as to trusts and monopolies, see ante, Constitutional Law, p. 264; Due Process of Law, p. 475 ; Impairment of Obligation of Contracts, p. 624. As to due process of law in matters relating to monopolies and trusts, see ante, Due Process of Law, p. 475. As to quo warranto proceedings, see post, Quo Warranto. As to presence of one of the defendants in the district conferring jurisdiction on court with power to serve notice on nonresident de- fendants, see post Venue. As to self-incrimination of witnesses, see ante, Constitutional Law, p. 264. I. Definition and General Nature. See note 1. Conspiracy in Restraint of Trade and Contract in Restraint of Trade Distinguished. — A conspiracy is a partnership in criminal purposes ; and a conspiracy in restraint of trade is different from and more than a contract in restraint of trade. ^^ n. At Common Law. See note 3. 432-1. Definition.— Standard Oil Co. r. United States, 221 U. S. 1, Jl. 5o L. Ed. 619, 31 S. Ct. 502. Engrossing was defined in the statute, 5 and 6 Edw. VI, chap. 14, as follows: "Whatsoever person or persons * * * shall engross or get into his or their hands b}- buying, contracting, or promise — taking, other than by demise, grant, or lease of land, or title, any corn growing in the fields, or any other corn or grain, butter, cheese, fish, or other dead victuals whatsoever, within the realm of England, to the intent to sell the same again, shall be accepted, reputed, and taken as unlaw- ful engrosser or engrossers.'' Standard Oil Co. z: United States, 221 U. S. 1. 53. 55 L. Ed. 619. 31 S. Ct. 502. Monopoly created by sovereign power. — "It is remarkable that nov.hcre at com- mon law can there be found a prohibition against the creation of monopoly bj' an in- dividual. This would seem to manifest, either consciously or intuitively, a pro- found conception as to the inevitable op- eration of economic forces and the equipoise or balance in favor of the pro- tection of the rights of individuals which resulted. That is to say, as it was deemed that monopoly in the concrete could only arise from an act of sovereign power, and, such sovereign power being restrained, prohibitions as to individuals were di- rected, not against the creation of monop- oly, but were onh' applied to such acts in relation to particular subjects as to which it was deemed, if not restrained, some of the consequences of monopoly might re- sult." Standard Oil Co. z\ United States, 221 U. S. 1. 52. 55 L. Ed. 619, 31 S. Ct. 502. Present meaning. — Both in this country and in England the acts from which it was deemed there resulted a part if not all of the injurious consequences ascribed to monopoly, came to be referred to as a monopoly itself. In other words, practi- cal common sense caused attention to be concentrated not upon the theoretically correct name to be given to the condition or acus which gave rise to a ha'-mful re- sult, but to the result itself and to the remedying of the evils which it produced. Standard Oil Co. 7\ United States, 22! U. S. 1, 56, 55 L. Ed. 619. 31 S. Ct. 502 432-la. Conspiracy in restraint of trade and contract in restraint of trade distin- guished. — A conspiracy to restrain or mo- nopolize trade by improperly excluding a competitor frim busin;«s contemplates that the conspirators will remain in busi- ness, and will continue their combined ef- f'lrrs to drive the competitor out until they succeed. If they do continue such efforts in pursuance of the plan, the conspiracy continues up to the time of abandonment or success. A conspiracy in restraint of trade is different from and more than a contract in restraint of trade. A conspir- acy is constituted by an agreement, it is true, but it is the result of the agreement, rather than the agreement itself, just as a partnership, although constituted by a contract, is not the contract, but is a re- sult of it. The contract is instantaneous, the partnership may endure as one and the same partnership for years. A con- spiracy is a partnership in criminal pur- poses. That as such it may have contin- uation in tiine is shown by the rule that an overt act of one partner may be theact of all without any new agreement specific- ally directed to that act. United States r. Kissel, 218 U. S. 601, 54 U. Ed. 1168, 31 S. Ct. 124. See ante, COXSPIRACY, p. 256. 433-3. Monopolies void • at common law. — The situation is this: monopolies were unlav.-ful by the common law be- 433 MONOPOLIES AND CORPORATE TRUSTS. Vol. Mil. cause of their restriction upon individual freedom of contract and their injury to the public. Standard Oil Co. v. United States, 221 U. S. 1, 54, 55 L. Ed. 619, 31 S. Ct. 502. Monopolies odious and against common right. — "The evils which led to the public outcry against monopolies and to the final denial of the power to make them may be thus summarily stated: 1. The power wnich the monopoly gave to the one who en- joyed it to fix the price and thereby in- jure the public. 2. The power which it en- gendered of enabling a limitation on pro- duction. 3. The danger of deterioration in quality of the monopolized article which it was deemed was the inevitable resultant of the monopolistic control over its production and sale." Standard Oil Co. V. United States. 221 U. S. 1, 52, 55 L. Ed. 619, 31 S. Ct. 502. Contracts in restraint of trade unrea- sonable and void. — At common law, to protect the freedom ot contract of the in- dividual not only in his own interest, but principally in the interest of the common weal, a contract of an individual by which he put an unreasonable restraint upon himself as to carry on his trade or busi- ness was void. Standard Oil Co. i'. United States, 221 U. S. 1, 54, 55 L. Ed. 619, 31 S. Ct. 502. The rule at common law was that as to necessaries of life, the freedom of the in- dividual to deal was restricted where the nature and character of the dealing was such as to engender the presumption of intent to bring about at least one of the injuries which it was deemed would result from monopoly, that is an undue enhance- ment of price. Standard Oil Co. v. United States, 221 U. S. 1, 54, 55 L. Ed. 619, 31 S. Ct. 502. "There is no doubt that (to quote from the well known work of Chief Justice Erie on Trade Unions) 'at common law, every person has individually, and the public also has collectively, a right to require that the course of trade should be kept free from unreasonable obstruction." " Loewe v. Lawlor, 208 U. S. 274, 294, 52 L. Ed. 488, 28 S. Ct. 301. Modification of doctrine. — It is certain that at a very remote period the words "contract in restraint of trade" in Eng- land came to refer to some voluntary re- straint put by contract by an individual on his right to carry on his trade or call- ing. Originally, all such contracts were considered to be illegal, because it was deemed they were injurious to the public as well as to the individuals who made them. In the interests of the freedom of individuals to contract the doctrine that all contracts in restraint of trade were il- legal, was modified so that it was only when a restraint by contract was so gen- eral as to be coterminous with the king- dom that it was treated as void. That is to say, if the restraint was partial in its operation and was otherwise reasonable the contract was held to be valid. Stand- ard Oil Co. V. United States, 221 U. S. 1, 51, 55 L. Ed. 619, 31 S. Ct. 502. Outside of the restrictions resulting from the want of power in an individual to voluntarily and unreasonably restrain his right to carry on his ^-rsde or business and outside of the want of right to lestrain the free course of trade by contracts or acts which implied a wrongful purpose, freedom to contract and to abstain fiom contracting and to exercise every reason- able right incident thereto became the rule in the Modern English law. The de- cision of the House of Lords in 1892 (Mongul Steamship Co. v. McGragor. A. C. 25T, announced shortly after the pas- sage of the Antitrust Act, serves re^^xly to show the exact state of the law in Eng- land at the time the antitrust statute of July 2, 1890, was enacted. Standard O'l Co. V. United States, 221 U. S. 1, 56, 55 L. Ed. 619, 31 S. Ct. 502. It will be seen that this country fol- lowed the line of development in Eng- land; that contracts or acts were at one time deemed to be of such a character as to justify the inference of wrongful intent which were at another period thought not to be of that character. It is also true that while tlie principles concerning contracts in restraint of trade, that is, voluntary re- straint put by a person on his right to pursue his calling, hence only operating subjectively, came generally to be recog- nized in accordance with the English rule, it came moreover to pass that contracts or acts which it was considered had a mo- nopolistic tendency, especially those which were thought to unduly diminish competi- tion and hence to enhance prices — in other words, to monopolize — came also in a generic sense to be spoken of and treated as they had been in England, as restricting the due course of trade, and therefore as being in restraint of trade. The dread of enhancement of prices and of other wrongs which it was thought would flow from the undue limitation on competitive conditions caused by con- tracts or other acts of individuals or cor- porations, led, as a matter of public policy, to the prohibition or treating as illegal all contracts or acts which were unrea- sonably restrictive of competitive condi- tions, either from the nature or character of the contract or act where the sur- rounding circumstances were such as to justify the conclusion that they had not been entered into or performed with the legitimate purpose of reasonably forward- ing personal interest and developing trade, but of the contrary were of such a char- acter as to give rise to the inference or presumption that they had been entered into or done with the intent to do wrong to the general public and to limit the right 876 Vol. VIII. MONOPOLIES AND CORPORATE TRUSTS. 434-435 III. Constitutional and Statutory Provisions. B. State Constitutions and Statutes — 2. Under the Acts of States- a. In General. — See note 10. b. Constitutionality of State Statutes. — See note 11. of individuals, thus restraining the free flow of commerce and tending to bring about the evils, such as enhancement of prices, which were considered to be against public policy. Standard Oil Co. c'. United States, 221 U. S. 1, 58, .55 L,. Ed. 619, 31 S. Ct. 502. "With respect to contracts in restraint of trade, the earlier doctrine of the com- mon law has been substantially modified in adaptation to modern conditions. But the public interest is still the first con- sideration. To sustain the restraint, it must be found to be reasonable both with respect to the pr.l)lic and to the parties and that it is limited to what is fairly necessary, in the circumstances of the particular case, for the protection of the covenantee. Otherwise, restraints of trade are void as against public policy." Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 400, 55 L. Ed. 502, 31 S. Ct._,376. 434-10. Domestic as well as foreign cor- porations embraced by Arkansas statute. — Domestic as well as foreign corpora- tions are embraced by Act Ark. Jan. 23, 1905 (Acts 1905, p. 2), § 1, imposing a penalty upon any corporation doing busi- ness within the state while a member of a combination to control prices. Judg- ment (1907), 100 S. W. 407, 81 Ark. 519, affirmed. Hammond Packing Co. v. Ar- kansas, 212 U. S. 322, 53 L. Ed. 530. 29 S. Ct. 370. 435-11. State statutes held constitu- tional. — "That state legislatures have the right to deal with the subject matter and to prevent unlawful combinations to pre- vent competition and in restraint of trade, and to prohiliit and punish monopolies, is not open to question. National Cotton Oil Co. V. Texas, 197 U. S. 115, 49 L. Ed. 689, 25 S. Ct. 379; Smiley v. Kansas, 196 U. S. 447, 49 L. Ed. 546, 25 S. Ct. 289." Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. State legislatures, in dealing with mo- nopolies and combinations in restraint of trade, may provide their own procedure and determine the means by which their legislation may be made effective, except that such procedure must not work a de- nial of fundamental rights, or conflict with the federal constitution. Judgment (Tex. Civ. App. 1908), 106 S. W. 918, af- firmed. Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. Corporations are not denied the equal protection of the laws because corporate violators of the Tennessee Antitrust Act of March 16, 1903, may be proceeded against by bill in equity on relation of the attorney general, while natural per- sons offending against its provisions can not be tried without a preliminary in- vestigation by a grand jury, and indict- ment or presentment, and a trial by jury, with the right to an acquittal unless their guilt is established beyond a reasonable doubt, and to the benefit of a statute of limitations of one year. Standard Oil Co. V. Tennessee, 217 U. S. 413, 54 L. Ed. 817, 30 S. Ct. 543. See, also, ante, CONSTI- TUTIONAL LAW. p. 264. Penalties imposed by the jury and con- firmed by the state courts at the rate of $1,500 and $50 per day for violating re- spectively, through a series of years, the Texas antitrust laws of May 25, 1899, and March 31, 1903, are not so excessive as to deprive the defendant corporation of its property without due process of law, where sttch property amounts to more than $40,000,000, and its dividends have been as high as 700 per cent annum. Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 418, 29 S. Ct. 220. A retroactive effect, in violation of U. S. Const., art. 1, § 10, is not given to the Texas antitrust laws of May 25, 1899, and March 31, 1903, by construing them to authorize a conviction of a foreign cor- poration for carrying out, after the pas- sage of those laws, an agreement for division of territory in suppression of com- petition, entered into before the enact- ment of those laws and before the crea- tion of the defendant corporation, and at a time' when such agreement was legal. Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. Due process of law is not denied a cor- poration convicted of violatiag the Texas antitrust laws of May 25, 1899, and March 31, 1903, because the legislation permits and the trial court charged that there may be a conviction not only for acts which ac- complish the prohibited result, but also for those which "tend" or are "reasonably calculated" to bring about such result. Waters-Pierce Oil Co. v. Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220. See ante, DUE PROCESS OE LAW, p. 475. Interstate commerce is not unlawfully regulated, at least, in the absence of con- gressional action, by the Tennessee Anti- trust Act of March 16. 1903. under which as construed by the state court, a foreign oil company may be excluded from doing domestic business in the state because it 87' 438-439 MONOPOLIES AND CORPORATE TRUSTS. Vol. VIII. c. Remedies under the Statutes — (2) Remedies against Corporations. — Pro- duction of Documents and Witnesses. — An honest, unavailing effort to produce books and paper and secure attendance of witnesses prevented the striking out of defendants' answer and entry of a default judgment. ^^^ d. Effect on Contracts. — See note 17. C. Under the Act of Congress — 1. Thk x\ct Statkd. — See note 19. 2. Constitutionality of Act. — See note 20. Certainty. — The Antitrust Act is not unenforcible because of generality.^f* 3. General Construction of Act — a. In GeueraL — See note 21. has induced merchants in that state, by a gift of oil, to revoke orders on a rival company for oil to be shipped into the state. Standard Oil Co. z'. Tennessee, 217 U. S. 413, 54 L. Ed. 817, 30 S. Ct. 543. 438-16a. Production of documents and witnesses. — An honest, unavailing effort to produce the books and papers, and secure the attendance as v^ntnesses before a com- mission of the officers, agents, directors, and employees called for by an order made conformably to Arkansas Antitrust Act (Act Ark. Jan. 23, 1905 [Acts 1905, p. 9], § 8), in a proceeding against a foreign corporation for violating that act, will prevent the striking out of defendant's ansvi^er, and the entering of a default judgment against it, authorized by § 9 when defendant fails to obey the order. Judgment (1907), 100 S. W. 407, 81 Ark. 519, affirmed. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. 438'-17. No recovery on illegal contract. — Where, in pursuance of a plan to assemble under one management or own- ership the compression business in the cot- ton-producing states, an Oklahoma com- press company, though financially em- barrassed, leases its entire property and good will to a foreign corporation, with a covenant to lend its assistance to dis- courage competition against its tenant, and to refrain from engaging in the busi- ness of compressing cotton within 50 miles of any plant operated by the tenant, the lease was invalid under the law of Oklahoma territory, which makes void every contract by which any one is re- strained from exercising a lawful profes- sion, trade, or business, except, however, that one who sells the good will of a busi- ness may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or part thereof. Wilson's Rev. & Anno. Stat., §§ 819, 820. Shawnee Compress Co. v. Anderson, 209 U. S. 423, 52 L. Ed. 865, 28 S. Ct. 572. 438-19. Under act of contract. — Loewe V. Lawlor, 208 U. S. 274, 52 L. Ed. 488, 28 S. Ct. 301; Continental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 486, 29 S. Ct. 280; Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. 438-20. Power to regulate based on power to control interstate and interna- tional commerce. — The prohibitions of Antitrust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), against restraints or monopolization of trade or commerce, do not exceed the au- thority of congress to regulate commerce, as applied to undue restraints of inter- state or foreign commerce in petroleum and its products, by contract, combina- tion, or conspiracy, or monopolization, or attempts to monopolize any part of such commerce. Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502, affirming judgment (C. C. 1909), United States v. Standard Oil Co. of New Jersey, 173 F. 177. The contention that the Antitrust Act of July 2, 1890, can not be constitutionally applied, because to do so would extend the power of congress to subjects dehors the reach of its authority to regulate com- merce, by enabling that body to deal with mere questions of production of commodi- ties within the states, is unsound. Stand- ard Oil Co. v. United States, 221 U. S. 1, 68, _ 55 L. Ed. 619, 31 S. Ct. 502. See United States v. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632. 438-20a. Certainty. — Arguments pro- ceeding upon the conception that in view of the generality of the Antitrust Act it is not susceptible of being enforced by the courts because it can not be carried out without a judicial exertion of legis- lative power, are clearly unsound. The statute certainly generally enumerates the character of acts which it prohibits and the wrong which it was intended to prevent. Standard Oil Co. v. United States, 221 U. S. 1, 69, 55 L. Ed. 619, 31 S. Ct. 502. 439-21. General consideration of act. — • United States v. American Tobacco Co., 221 U. S. 106, 17S, 55 L. Ed. 663, 31 S. Ct. 632; Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. Criminal provisions. — Words having universal scope, such as "every contract in restraint of trade," "every person who shall monopolize," etc., will be taken, as a matter or course, to mean only everyone subject to such legislation, not all that the legislator subsequently may be able to catch. In the case of the present statute, the improbability of the United States at- 878 Vol. YIII. MONOPOLIES AND CORPORATE TRUSTS. 439 Intention and Object. — The object and intention of the combination de- termines its legality. 21=^ Origin and Construction of Terms. — The terms "restraint of trade" in the first section of the Antitrust Act, and "attempt to monopolize" and "mo- nopolize" in the second section, in their rudimentary meaning took their origin in the common law.^^^ The second section of the Antitrust Act was intended to supplement the first section and render it certain that by no possible guise the public policy in the first section could be frustrated or evaded. 2i<= The words "restraint of trade" do not embrace all those normal and usual contracts essential to individual freedom and the right to make which were necessary in order that the course of trade might be free.-^'^ The terms "attempt to mo- nopolize" and "monopolize," as used in the second section of the act, reach every act bringing about the prohibited results. -^^ The words "any part" in the tempting to make acts done in Panama or Costa Rico criminal is obvious, yet the law begins by making criminal the acts for which it gives a right to sue. Acts done in those states by the defendant, a domestic corporation, are not within the scope of the statute so far as the present suit is concerned. American Banana Co. V. United Fruit Co., 213 U. S. 347, 53 L. Ed. 826, 29 S. Ct. 511. 439-21 a. Intention and object. — Loewe V. Lawlor, 208 U. S. 274, 297, 52 L. Ed. 488, 28 S. Ct. 301. 439-21b. Origin. — There can be no doubt that the sole subject with which the first section of the Antitrust Act of July 2, 1890, deals is "restraint of trade" as therein contemplated, and that the "at- tempt to monopolize"' and monopolization is the subject with which the second sec- tion is concerned. It is certain that those terms at least in their rudimentary mean- ing, took their origin in the common law, and were also familiar in the law of this country prior to and at the time of the adoption of the act in question. Standard Oil Co. V. United States, 221 U. S. 1, 50, 55 L. Ed. 619, 31 S. Ct. 502. 439-210. Sections supplemental. — In the second section of the Antitrust Act of July 2, 1890, providing that "every person who shall monopolize, or attempt to mo- nopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor." the consideration of the text serves to establish that it was intended to supple- ment the first section of that act, and to make sure that by no possible guise could the public policy embodied in the first section be frustrated or evaded. Standard Oil Co. V. United States, 221 U. S. 1. 55 L. Ed. 619, 31 S. Ct. 502. 439-21d. Restraint of trade. — The words "restraint of trade" in Antitrust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), condemning com- binations in restraint of interstate or for- eign trade or commerce, or the monopo- lization or attempts to monopolize any part thereof, should be given a meaning which will not destroy the individual right to contract, and render difficult, if not im- possible, any movement of trade in the channels of commerce, the free move- ment of which it was the purpose of the statute to protect. United States v. \A.merican Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, reversing decree (C. C. 1908), 164 F. 700; Standard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502 In the first section of the Antitrust Act of July 2, 1890, providing that "Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce * * * is hereby de- clared to be illegal," the context mani- fests that the statute was drawn in the light of the existing practical conception of the law of restraint of trade, because it groups as within that class, not onlj' contracts which were in restraint of trade in the subjective sense, but all contracts or acts which theoretically were attempts to monopolize, yet which in practice had come to be considered as in restraint of trade in a broad sense. Standard Oil Co. V. United States, 221 U. S. 1, 59, 55 L. Ed. 61t<, 31 S. Ct. 502. 439-21e. Monopolize. — In the second section of the Antitrust Act of July 2, 1890, providing that "Every person who shall monopolize, or attempt to monopo- lize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor," the words undoubtedly, as used in the section, reach every act bringing about the prohibited results. The ambiguity, if any, is involved in determining what is intended by monopolize. But this am- biguity is readily dispelled in the light of the previous history of the law of re- straint of trade and the indication v.-hich it gives of the practical evolutjon by which monopoly and the acts which pro- duce the same result as monopoly, that 879 439 MONOPOLIES AXD CORPORATE TRUSTS. Vol. MIL second section of the Antitrust Act has both a geographical and a distributive significance.-^^ The word person in the Antitrust Act embraces corporations.^^^ Distinction between Classes. — The Antitrust Act makes no distinction be- tween classes. -^'^ Debates as Aiding Construction. — It was permissible to resort to debates as a means of ascertaining the environment at the time of enactment of the Antitrust Act.^i' c. Protects Only Interstate and International Trade or Commerce. — See note 23. is, an undue restraint of the course of trade, all came to be spoken of as, and to be indeed synonymous with, restraint of trade. In other words, having by the first section forbidden all means of mo- nopolizing trade, that is, unduly restrain- ing it by means of every contract, com- bination, etc., the second section seeks, if possible, to make the prohibitions of the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the first section, that is, restraints of trade, by any attempt to monopolize, or monopolization thereof, ■ even although the acts by which such re- sults are attempted to be brought about or are brought about be .not embraced within the general enumeration of the first section. And, of course, when the second section is thus harmonized with and made as it was intended to be the complement of the first, it becomes ob- vious that the criteria to be resorted to in any given case for the purpose of as- certaining whether violations of the sec- tion have been committed, is the rule of reason guided by the established law and by the plain duty to enforce the prohibi- tions of the act and thus the public policy which its restrictions were obviously en- acted to subserve. Standard Oil Co. z\ United States. 221 U. S. 1, 61. 55 L. Ed. 619, 31 S. Ct. 502. 439-21f. Any part. — In the second sec- tion of the Antitrust Act of July 2, 1890, providing that "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other per- son or persons, to monopolize any part of the trade or commerce among the sev- eral states, or with foreign nations, shall be deemed guilty of a misdemeanor."' The commerce referred to by the words "any part" construed in the light of the mani- fest purpose of the statute has both a geographical and a distributive signifi- cance, that is it includes any portion of the United States and any one of the classes of things forming a part of inter- state or foreign commerce. Standard Oil Co. V. United States, 221 U. S. 1. 61, 55 L. Ed. 619. 31 S. Ct. 502. 439-21g. Person. — In the second section of the Antitrust Act of July 2, 1890, pro- viding that "Every person who shall mo- nopolize, or attempt tb inonopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a misdemeanor," by reference to the terms of § S, it is certain that the word person clearly implies a corporation as well as an individual. Standard Oil Co. r. United States, 221 U. S. 1, 61, 55 L. Ed. 619. 31 S. Ct. 502. 439-21h. No distinctions between classes. —The Antitrust Act of July 2, 1890. made no distinction between classes. It provided that "everj^" contract, combina- tion or (Conspiracy in restraint of trade was illegal. The records of congress show that several efforts were made to exempt, by legislation, organizations of farmers and laborers from the operation of the act and that all these efforts failed. Loewe z: Lawlor. 208 U. S. 274, 301. 52 L. Ed. 48S. 28 S. Ct. 301. 439-211. Debates. — "The debates show ihat doul>t as to whether there was a common law of the United States which governed the subject in the absence of legislation was among the influences lead- ing to the passage of the act. They con- clusively show, however, that the main cause which led to the legislation was the thought that it was required by the economic condition of the times, that is, the vast accumulation of wealth in the hands of corporations and individuals, the enormous development of corporate or- ganization, the facility for combination which such organizations afforded, the fact that tlie facility was being used, and that combinations known as trusts were being multiplied, and the v»'idesprean im- pression that their power had been and would be exerted to oppress individuals and injure the public generally. Al- though debates may not be used as a means for interpreting a statute (United States z\ Trans-Missouri Freight Ass'n, 166 U. S. 290, 318, 41 L. Ed. 1007, and cases cited) that rule in the nature of things is not violated by resorting to de- bates as a means of ascertaining the en- vironment at the time of the enactment of a particular law, that is. the hiitory cf the period when it was adopted." Stand- ard Oil Co. z: United States, 221 U. S. 1. ."0, 55 L. Ed. 619. 31 S. Ct. 502. See, also, post. STATUTES. 439-23. Trade or commerce protected. —The Antitrust Act of July 2. 1890, was 880 \'ol. Mil. MOXOPOLIES AXD CORPORATE TRUSTS. 440-444 Negligible Amount of Intrastate Commerce. — The statute is applicable although a negHgible amount of intrastate business may be affected in carrying out the combination and although the members of the combination are not them- selves engaged in interstate commerce. -^^ Conspiracy to Do Acts in Another Jurisdiction. — A conspiracy in this country to do acts in another jurisdiction does not draw to itself those acts and make them unlawful, if they are permitted by the local law.-'*'' d. Restraint Must Be Direct. — See note 25. e. Embraces All Restraints. — See note 27. intended to formulate a rule for the regu- lation of interstate and foreign commerce. Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. Contract of manufacturer with most cf jobbers and druggists of the country. — Contracts between a manufacturer and most of the jobbers and wholesale drug- gists and the majority of the retail drug- gists of the country having for their pur- pose the control of the entire trade, re- late directly to interstate as well as to intrastate trade, and operate to restrain trade and commerce among the several states. ]Miles Medical Co. v. Park & Sons Co.. 220 U. S. 373, 400, 55 L. Ed. 502, 31 S. Ct. 376. 440-24a. Combinations doing negligible amount of intrastate business. — Although some of the means whereby the interstate traffic is to be destroyed are acts within a state, and some of them are, in them- selves, as a part of their obvious purpose and effect, beyond the scope of federal authority, still the acts must be considered as a whole, and the plan is open to con- demnation, notwithstanding a negligible amount of intrastate business might be effected in carrying ii oat. If the purposes of the combination are to prevent anj- in- terstate transportation at all, the fact that the means operated at one end before physical transportation commenced, and at the other end after the physical trans- portation ended, was immaterial. Loewe V. Lawlor, 208 U. S. 274. 301, 52 L. Ed. 488, 28 S. Ct. 301. See Continental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 48i3, 29 S. Ct. 280. A combination by members of labor or- ganizations to destroy an existing inter- state traffic in hats by preventing the manufacturers, through the instrumen- tality of a boycott, from manufacturing hats intended for transportation beyond the state, and to prevent their vendees in other states from reselling the hats so transported, and from further negotiating with the manufacturers for the purchase and transportation of such hats from the place of manufacture to the various places of destinations, is a combination "in re- straint of trade or commerce among the several states," within the meaning of Antitrust Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], 12 U S Enc— 5G i the members of which are liable for the threefold damages which, under section 7 of that act, may be recovered by those injured in business or property by viola- tions of the act, although a negligible amount of intrastate business may be af- fected in carrying out the combination, and although the members of the combi- nation are not themselves engaged in in- terstate commerce. Judgment (C. C. 1906). 148 F. 924, reversed. Loewe v. Lawlor, 208 U. S. 274, 52 L. Ed. 488, 28 S. Ct. 301. 440-24b. Conspiracy to act in another jurisdiction. — American Banana Co. v. United Fruit Co., 213 U. S. 347, 53 L. Ed. 826, 833, 29 S. Ct. 511. Acts done by a domestic corporation outside the United States, which largely depend for their efficacy upon the co- operation, in a conspiracy to drive a rival out of business, of soldiers and officials in Costa Rica, acting under governmental sanction, in territory over which that state exercises a de facto sovereignty, can not be made the basis of the action to re- cover threefold damages authorized by the Sherman Antitrust Act (Act July 2. 1890, c. 647. § 7, 26 Stat. 210 [U. S. Comp. St. 1901, p. 3202]), on behalf of those injured in their business by reason of violations of that statute. Judgment (C. C. A. 1908). 166 F. 261, affirmed. American Banana Co. v. United Fruit Co., 213 U. S. 347, 53 L. Ed. 826, 29 S. Ct. 511. 441-25. Restraint must be direct.— Standard Oil Co. v. United States, 221 U. S. 1. 55 L. Ed. 619, 31 S. Ct. 502. 444-27. Includes all restraints. — Any combination whatever to secure action which essentially obstructs the free flow of commerce between the states, or re- stricts, in that regard, the liberty of a trader to engage in business, is within the inhibition of Antitrust Act July 2, 1800, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200], against combinations "in re- straint of trade or commerce among the several states." Judgment (C. C. 1906), 148 F. 924, reversed. Loewe v. Lawlor. 208 U. S. 274, 52 L. Ed. 488. 28 S. Ct. 301. "United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290. 41 L. Ed. 1007; United States v. Joint Traffic Ass'n, 171 U. S. 505, 43 L. Ed. 259; and Northern 444 MONOPOLIES AND CORPORATE TRUSTS. Vol. VIIL Rule of Reason. — The question as to whether or not any particular act or contract is within contemplation of the Antitrust Act must be determined by the light of reason. 2"^ Under this rule there must be an undue restraint of Securities Co. v. United States, 193 U. S. 197, 48 L. Ed. 679, hold in effect that the antitrust law has a broader application than the prohibition of restraints of trade unlawful at common law. Thus, in the United States z'. Trans-Missouri Freight Ass'n, 166 U. S. 290, 41 L. Ed. 1007, it was said that, 'assuming that agreements of this nature are not void at common law, and that the various cases cited by the learned courts below show it, the answer to the statement of their validity is to be found in the terms of the statute under consideration;' and in the Northern Securities Co. v. United States, 193 U. S. 197, 331, 48 L. Ed. 679, that, 'the act de- clares illegal every contract, combination or conspiracy, in whatever form, of what- ever nature, and whoever may be the par- ties to it, which directly or necessarily operates in restraint of trade or com- merce among the several states.' " Loewe V. Lawlor. 208 U. S. 274, 297, 52 L. Ed. 488, 28 S. Ct. 301. See Shawnee Compress Co. V. Anderson, 209 U. S. 423, 52 L. Ed. 865, 28 S. Ct. 572. Patents. — "The general rule is absolute freedom in the use or sale of rights under the patent laws of the United States. The verj^ object of these laws is monopoly, and the rule is, with few exceptions, that any conditions which are not in their very nature illegal with regard to this kind of property, imposed by the patentee and agreed to by the licensee for the right to manufacture or use or sell the article, will be upheld by the courts. The fact that the conditions in the contracts keep up the monopoly or fix prices does not render them illegal." Henry v. Dick Co., 224 U. S. 1, 29, 56 L. Ed. 645, 32 S. Ct. 364. Even though contracts relating to pat- ents include interstate commerce within their provisions and restrain interstate trade, the Antitrust Act of July 2, 1890, does not refer to that kind of a restraint of interstate commerce which may arise from reasonable and legal conditions im- posed upon the assignee or licensee of a patent by the owner thereof, restricting the terms upon which the article may be used and the price to be deinanded there- for. Henry v. Dick Co., 224 U. S. 1, 30, 56 L. Ed. 645, 32 S. Ct. 364. 444-27a. Rule of reason. — The standard of reason which had theretofore been ap- plied at the common law and in the United States in dealing with subjects of the character embraced by the prohibitions of Act July 2, 1890, c. 647, §§ 1. 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), against combinations in restraint of interstate or foreign trade or commerce, or monopo- lization or attempts to monopolize any part of such trade or commerce, was in- tended to be the measure used for the purpose of determining whether, in a given case, a particular act had or had not brought about the wrong against which the statute provided. Standard Oil Co. V. United States. 221 U. S. 1. 55 L. Ed. 619. 31 S. Ct. 502. affirming judgment in 34 L. R. A. (X. S.) 834 (C. C. 1900), United States v. Standard Oil Co., 173 Fed. 177; United States v. American To- bacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632: reversing decree (C. C. 1908), 164 Fed. 700. As the acts which may come under the classes stated in the first section of the .A.ntitrust Act and the restraint of trade to which that section applies are not spe- cifically enumerated or defined, it is obvi- ous that judgment must in every case be called into play in order to determine whether a particular act is embraced within the statutory classes, and whether if the act is within such classes its na- ture or effect causes it to be a restiainc of trade within the intendment of the act. Standard Oil Co. v. United States, 221 U. S. 1. 63, 55 L. Ed. 619, 31 S. Ct. 502. The merely generic enumeration which the statute makes of the acts to which it lefers and the absence of any definition of restraint of trade as used in the stature lerives room for but one conclusion, which is, that it was expressly designed not to unduly limit the application of the act by precise lefinilion, bi:t while clearly fixing a standa'-rl, that is. by defining the ulterior boundaries which could not be trans- gressed with impunity, to leave it to be determined by the light of reason, 'juided by the principles of law and the duty to applv and enforce the public policy em- bodied in the stalutc. in every given case whether any particular act or contract was within the contemplation of the stat- ute. Standard Oil Co. v. United States, 221 U. S. 1, 63. 55 L. Ed. 619, 31 S. Ct. 502. As the statute did not define the words restraint of trade, it becomes necessary to construe those words, a duty which can only be discharged by a resort to reason. United States v. American Tobacco Co., 221 U. S. 106, 178, 55 L. Ed. 663, 31 S. Ct. 632; Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. In the first section of the Antitrust Act of July 2, 1890, providing that "Every contract, combination in the form of trust or otherwise, or conspiracy in re- straint of trade or commerce * * * is hereby declared to be illegal," as the con- tracts or acts embraced in the provision 882 \'ol. MIL MOXOPOLIES AXD CORPORATE TRUSTS. 444 were not expressly defined, since the enumeration addressed itself simply to classes of acts, those classes being broad enough to embrace every conceivable contract or combination which could be made concerning trade or commerce or the subjects of such commerce, an"d thus caused any act done by any of the enu- merated methods anywhere in the whole field of human activity to be illegal if in restraint of trade, it inevitably follows that the provision necessarily called for the exercise of judgment which required that some standard should be resorted to for the purpose of determining whether the prohibitions contained in the statute had or had not in any given case been violated. Standard Oil Co. v. United vStates, 221 U. S. 1, 59, 55 L. Ed. 619, 31 S. Ct. 502. Prior cases distinguished. — In referring to statements in the United States v. Trans-IMissouri Freight Ass'n, 166 U. S. 290, 41 L. Ed. 1007, and United States v. Joint Traffic Ass'n, 171 U. S. 505, 43 L. Ed. 259, that all combinations and con- tracts in restraint of trade or commerce are prohibited in whatever form, the court said: "As the cases can not by any possible conception be treated as au- thoritative without the certitude that reason was resorted to for the purpose of deciding them, it follows as a matter of course that it must have been held by the light of reason, since the conclusion could not have been otherwise reached, that the assailed contracts or agreements , were within the general enumeration of the statute, and that the operation and effect brought about the restraint of trade which the statute prohibited. This being inevitable, the deduction can in reason be only this: That in the cases relied upon it having been found that the acts complained of were within the statute and operated to produce the injuries which the statute forbade, that resort to reason was not permissible in order to allow that to be done which the statute prohibited. This being true, the rulings in the cases relied upon when rightly ap- preciated were therefore this and nothing more: That as considering the contracts or agreements, their necessary effect and the character of the parties by whom they were made, thev were clearly restraints of trade within the purview of the statute, they could not be taken out of that cate- gory by indulging in general reasoning as to the expediency or nonexpediency of having made the contracts or the wisdom or want of wisdom or the statute which prohibited their being made. That is to say, the cases but decided that the na- ture and character of the contracts, creat- ing as they did a conclusive presumption which brought them within the stavute. such result was not to be disregarded by the substitution of a judicial apprecia- tion of what the law ought to be for the" plain judicial duty of enforcing the law as it was made." Standard Oil Co. v.- United States, 221 U. S. 1, 64, 55 L. Ed. 619, 31 S. Ct. 502. See United States v. American Tobacco Co., 221 U. S. 106, 178, 55 L. Ed. 663, 31 S. Ct. 632. "If the criterion by which it is to be determined in all cases whether every' contract, combination, etc.. is a restralftt of trade within the intendment of the law, is the direct or indirect effect of the acts involved, then of course the rule of rea- son becomes the guide, and the construc- tion which we have given the statute, in- stead of being refuted by the cases relied upon, is by those cases demonstrated to be correct. This is true, because as the construction which we have deduced from the history of the act and the analysis of its text is simply that in every case where it is claimed that an act or acts are in violation of the statute the rule of reason, in the light of the principles of law and the public policy which the act embodies, must be applied. From this it follows, since that rule and the result of the test as to direct or indirect, in their ultimate aspect, come to one and the same thing, that the difference between the two is therefore only that which obtains be- tween things which do not differ at all." Standard Oil Co. v. United States, 221 U. S. 1, 66, 55 L. Ed. 619, 31 S. Ct. 502. In reference to question as to how it was that much consideration was given to the subject of whether the agreement or combination which was involved in the Freight 'Association Case could be taken out of the prohibitions of the stat- ute upon the theory of its reasonableness, the court said: "The confusion which gives rise to the question results from failing to distinguish between the want of power .to take a case which by its terms or the circumstances which surroimd it, considering among such circumstances the character of the parties, is plainly within the statute, out of the operation of the statute by resort to reason in effect to establish that the contract ought not to be treated as within the statute, ?nd the duty in every case where it becomes necessary from the nature and character of the parties to decide whether it was within the statute to pass upon that ques- tion by the light of reason." Standard Oil Co. V. United States, 221 U. S. 1, 67, 55 L. Ed. 619, 31 S. Ct. 502. In Standard Oil Co. v. United States, 221 U. S. 1. 67. 55 L. Ed. 619, 31 _S. Ct. 502, the court said: "In order not in the slightest degree to be wanting in frank- ness, we say that in so far. however, as by separating the general language used in the opinions of the Freight Association and Joint Traffic Caf.es from the context and the subject and parties with which the cases were concerned, it may be con- 883 444 MONOPOLIES AND CORPORATE TRUSTS. Vol. VIII. trade to bring acts or contracts within the purview of the Antitrust Act.^''''' ceived that the language referred to con- flicts with the construction which we give the statute, they are necessarily now limited and qualified." 445-27b. Undue restraint prohibited. — Only undue restraints of interstate or for- eign trade or commerce are prohibited by the provisions of Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), declaring illegal every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of such trade or commerce, and making guilty of a misdemeanor every person who shall monopolize or attempt to monopolize, or combine or conspire with any other per- son or persons to monopolize, any part of such trade or commerce. Standard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. affirming judgment (C. C. 1909), United States v. Standard Oil Co. of New Jersey, 173 F. 177. Only acts, contracts, agreements, or combinations which operate to the preju- dice of the public interests by unduly re- stricting competition, or unduly obstruct- ing the due course of trade, or which, either because of their inherent nature or effect, or because of their evident purpose, injuriously restrain trade, fall within the condemnation of Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), of combinations in restraint of in- terstate or foreign trade or commerce, or monopolization or attempts to monopolize any part of such trade or commerce. United States ?■. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, reversing decree (C. C. 1908), 164 F. 700. See Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. In the first section of the An^^itrust Act of July 2, 1890, providing that "''Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce * * * is hereby de- clared to be illegal," its terms show that in view of the many new forms of con- tracts and combinations whicli were being evolved from existing economic con- ditions, it was deemed essential by an all-embracing enumeration to make sure that no form of contract or combination by which an undue restraint of interstate or foreign commerce was brought about could save such restraint from condemna- tion. The statute under this view evi- denced the intent not to restrain the right to make and enforce contracts, whether resulting from combination or otherwise, which did not unduly restrain interstate or foreign commerce, but to protect that commerce from being re- strained by methods, whether old or new, which would constitute an interference that is an undue restraint. Standard Oil Co. V. United States, 221 U. S. 1, 59, 55 L. Ed. 619, 31 S. Ct. 502. "It was therefore pointed out (in Stand- ard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 6L9, 31 S. Ct. 502) that the stat- ute did not forbid or restrain the power to make normal and usual contracts to further trade by resorting to all normal methods, whether by agreement or other- wise, to accomplish such purpose. In other words, it was held, not tliat acts which the statute prohibited could be removed from the control of its prohibi- tions by a finding that they were reason- able, but that the duty to interpret which inevitably arose from the general char- acter of the term restraint of trade re- quired that the words restraint of trade should be given a meaning which would not destroy the individual right to con- tract and render difficult if not impossible any movement of trade in the channels of interstate commerce, the free movement of which it was the purpose of the stat- ute to protect." United States v. Ameri- can Tobacco Co., 221 U. S. 103, 179, 55 L Ed. 663, 31 S. Ct. 632. The generic character of the prohibi- tions of Act July 2, 1890, c. 647. §§ ], 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), against combinations in restraint of interstate or foreign trade or com- merce, and monopolization or attempts to monopolize any part thereof, covers every conceivable act which can possibly come within the spirit or purpose of the condemnation of the law, without re- gard to the garb in which such acts are clothed. In view of the general language of the statute and the public policy which it manifests, there is no possibility of frustrating that policy by resorting to any disguise or subterfuge of form, since re- sort to reason renders it impossible to escape by any indirection the prohibitions of the statute. United States z'. Ameri- can Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, reversing decree (C. C. 1908), 164 Fed. 700; Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502; Waters-Pierce Oil Co. z: Texas, No. 1, 212 U. S. 86, 53 L. Ed. 417, 29 S. Ct. 220 Control of oil industry. — The unifica- tion of power and control over the oil in- dustry which results from combining in the hands of a holding company the capi- tal stock of the various corporations trad- ing in petroleum and its products raises a presumption of an intent to exclude others from the trade, and thus centralize in the combination a perpetual control of the movement of these commodities in the channels of interstate and foreign commerce, in violation of the prohibitions of Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. S84 Vol. VIII. MOXOPOLIES AXD CORPORATE TRUSTS. 444 Extent of Monopoly. — See note 28. 209 (U. S. Comp. St. 1901, p. ,3200), against combinations in restraint of interstate or foreign trade or commerce, or monopo- lization or attempt to monopolize any part of such trade or commerce. This prima facie presumption is made con- clusive by considering the conduct of the persons and corporations. Standard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502, affirming judgment (C. C. 1909), United States z: Standard Oil Co.. 173 Fed. 177. "The inference that no attempt to mo- nopolize could have been intended, and that no monopolization resulted from the acts complained of, since it is established that a very small percentage of the crude oil produced was controlled by the com- bination, is unwarranted. As substantial power over the crude product was the in- evitable result of the absolute control which existed over the refined product, the monopolization of the one carried with it the power to control the other, and if the inferences which this situation suggests were developed, which we deem it un- necessary to do, they might well serve to add additional cogency to the presump- tion of intent to monopolize which we have found arises from the unquestioned proof on other subjects." Standard Oil Co. r. United States, 221 U. S. 1, 77, 55 L. Ed. 619. 31 S. Ct. 502. 444-28. Unification of terminal facilities. — The combination and unification of the terminal facilities at St. Louis under the exclusive ownership and control of less than all the railway companies under com- pulsion to use them, the inherent condi- tions being such as to prohibit any other reasonable means of railway access to that city, violates the provisions of the Sherman Antitrust Act of July 2, 1890, §§ 1, 2, in that it constitutes a contract or combination in restraint of commerce among the states, and an attempt to mo- nopolize stich commerce which must pass through the gateway at St. Louis. United States z: Terminal R. Ass'n, 224 U. S. 383, 56 L. Ed. 810, 32 S. Ct. 507. The mere combining of several inde- pendent terminal systems into one may not operate as a restraint upon the inter- state commerce which must use them. In ordinary circumstances, a number of in- dependent companies might combine for the purpose of controlling or acquiring terminals for their common but exclusive use. In such cases other companies might be admitted upon terms or excluded alto- gether. If such terms were too onerous, there would ordinarilj^ remain the right and power to construct their own termi- nals. But the situation at St. Louis is most extraordinary; physical or topo- graphical condition peculiar to the lo- cality, which is advanced as a prime justi- fication for a unified system of terminals, constitutes a most obvious reason why such a unified system is an obstacle, a hindrance, and a restriction upon inter- state commerce, unless it is the impartial agent of all who, owing to conditions, are under such compulsion, as here ex- ists, to use its facilities. United States c'. Terminal R. Ass'n, 224 U. S. 383, 53 L. Ed. 810, 32 S. Ct. 507. "It is not contended that the unification of the terminal facilities of a great city where many railroad systems center is, under all circumstances and conditions, a combination in restraint of trade or com- merce. Whether it is a facility in aid of interstate commerce or an unreasonable restraint, forbidden by the act of con- gress, as construed and applied by this court in the cases of Standard Oil Co. z: United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502, and United States z: Ameri- can Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, will depend upon the intent to be inferred from the extent of the control thereby secured over instru- mentalities which such commerce is un- der compulsion to use, the method by which such control has been brought about, and the manner in which that con- trol has been e.xerted."' United States v. Terminal R. Ass'n, 224 U. S. 383, 56 L. Ed. 810. 32 S. Ct. 507. If the combination of two or more mere terminal companies into a single system does not violate the prohibition of the_ statute against contracts and combi- nations in restraint of interstate com- merce, it is because such combination may be of the greatest public utility. But when, as here, the inherent conditions are such as to prohibit any other reasonable means of entering the city, the combina- tion of every such facility under the ex- clusive ownership and control of less than all of the companies under com.pulsion to use them violates both the first and second sections of the act. in that it con- stitutes a contract or combination in re- straint of commerce among the states, and an attempt to monopolize commerce among the states which must pass through the gateway at St. Louis. That these facilities were not to be acquired for the benefit of any railroad company which might desire a joint use thereof was made plain by a provision in the con- tract referred to, which stipulated that other railroad companies not named therein as proprietary companies might only be admitted "to joint use of said terminal system on unanimous consent, but not otherwise, of the directors of the first party and on payment of such a con- sideration as they may determine, and on 885 445 MONOPOLIES AND CORPORATE TRUSTS. Vol. VIII. Form of Combination Immaterial. — See note 29. signing this agreement,'' etc. Inasmuch as the directors of the terminal company consisted of one representative of each of the proprietary companies, selected by itself, it is plain that each of said com- panies had and still has a veto upon any joint use or control of terminals by any nonproprietary companj-. The terminal properties in question are not so con- trolled and managed, in view of the inher- ent local conditions, as to escape condem- nation as a restraint upon commerce. They are not under a common control and ownership. Nor can this be brought about unless the prohibition against the admis- sion of other companies to such control is stricken out and provision made for the admission of any company to an equal control and inanagement upon an equal basis with the present proprietary com- panies. United States v. Terminal R. Ass'n, 224 U. S. 383, 56 L. Ed. 810, 32 S. Ct. 507. "Plainly the combination which has oc- curred would not be an illegal restraint under the terms of the statute if it were what is claimed for it, a proper terminal association acting as the impartial agent of every line which is tmder compulsion to use its instrumentalities. If, as we have pointed out, the violation of the statute, in view of the inherent physical condi- tions, grows out of administrative con- ditions which may be eliminated and the obvious advantages of unification pre- served, such a modification of the agree- ment between the terminal company and the proprietary companies as shall con- stitute the fonner the bona fide agent and servant of every railroad line which shall use its facilities, and an inhibition of cer- tain methods of administration to which we have referred, will amply vindicate the wise purpose of the statute, and will preserve to the public a system of great public advantage." United States v. Terminal R. Ass'n, 224 U. S. 383, 56 L. Ed. 810, 32 S. Ct. 507. Domination and control of tobacco trade. — The acts, contracts, agreements, combinations, etc., in this case were of such an unusual and wrongful character as to bring them within the prohibitions of the law. These conclusions are inevita- ble, not because of the vast amount of property aggregated by the combination, not because alone of the many corpora- tions which the proof shows were imited by resort to one device or another. Again, not alone because of the dominion and control over the tobacco trade which actually exists, but because the conclusion of wrongful purpose and illegal combina- tion appears to be overwhelmingly estab- lished by the following considerations: a. By the fact that the very first organ- ization or combination was impelled by a previously existing fierce trade war, evi- dently inspired by one or more of the minds which brought about and became parties to that combination, b. Because, immediately after that combination and the increase of capital which followed, the acts which ensued justify the inference that the intention existed to use the power of the combination as a vantage grotind to further monopolize the trade in tobacco by means of trade conflicts designed to injure others, either by driv- ing competitors out of the business or compelling them to become parties to a combination — a purpose whose execution was illustrated by the plug v>^ar which ensued and its results, by the snuf¥ war which followed and its results, and by the conflict which immediately followed the entry of the combination in England and the division of the world's business by the two foreign contracts which en- sued, c. By the ever present manifesta- tion which is exhibited of a conscious wrongdoing by the form in which the various transactions were em.bodied from the beginning, ever changing but ever in sul)stance the same. Now the organiza- tion of a new company, now the control exerted by the taking of stock in one or another or in several, so as to obscure the result actually attained, nevertheless uniform, in their manifestations of the purpose to restrain others and to monopo- lize and retain power in the hands of the few who, it would seem, from the be- ginning contemplated the masterj'- of the trade wliich practically followed, d. By tlie gradual absorption of control over all the elements essential to the successful manufacture of tobacco products, and placing such control in the hands of seemingly independent corporations serv- ing as perpetual barriers to the entry of others into the tobacco trade, e. By per- sistent expenditure of millions upon mil- lions of dollars in buving out plants, not for the purpose of utilizing them, but in order to close them up and render them u.'^eless for the purpose of trade, f. By the constantly recurring stipulations, whose legality, isolatedly viewed, we are not considering, by which numbers of persons, whether manufacturers, stock- holders or employees, were required to bind themselves, generally for long periods, not to compete in the future. United States f. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663. 31 S. Ct. 632 445-29. Manufacturer restricting sale of products. — Contracts between a manufac- turer and all dealers whom he permits to sell his products, comprising most of the dealers in similar articles throughout the countr}-, which fix the price for all sale.*^. 886 \"ol. MIL MOXOPOLIES AXD CORPORATE TRUSTS. 445-447 4. Pleading and Practice — a. Criminal Prosecution. — Limitations of Ac- tions. — A special plea of the statute of limitations is not good as against an indictment charging a conspiracy to restrain or monopolize trade, in violation of the Sherman Act of July 2, 1890, by improperly excluding a competitor from business, although the conspiracy is alleged to have been formed on a specified date, which was more than three years before the finding of the indictment, where such indictment, consistently with the other facts, alleges that the con- spiracy continued to the date of its presentment.^^^ b. Cii^il Reynedies — (2) Injunctions. — Relief to Be Afforded in General. ■ — The relief to be granted where a combination has been found to violate the prohibitions of the Act of July 2, 1890, c. 647, 26 Stat. 209 (U S. Comp. St. 1901, p. 3200), against combinations in restraint of interstate or foreign trade or commerce, and monopolization or attempts to monopolize any part thereof, should be dictated by the duty of giving complete and efficacious effect to such prohibitions, the accomplishment of this result with as little injury as possible to the interests of the general public, ^nd a proper regard for the vast interests of private property which may have become vested in many persons as the result of the acquisition of stock or securities of the combination without any t'uiltv knovvledge or intent.^°'' whether at wholesale or retail, operate as a restraint of trade, unlawful both at common law, and, as to interstate com- merce, under .\ntit-rust- Act July 2. 1S90. 26 Stat. 209 (U. S. Comp. St." 1901, p. 3200), even though such products may be proprietary medicines made under secret formulae. Nor were the contracts valid on the ground that they related to the products of his own manufacture. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, .5.5 L. Ed. 502, 31 S. Ct. 376. A restraint of trade which would be unlawful as to other manufactured ar- ticles can not be justified because the ar- ticle in question is a proprietary medicine made under a secret formula. ]\Iiles Med- ical Co. v. Park & Sons Co.. 220 U. S. 373, 55 L. Ed. 502, 31 S. Ct. 376. affirming judg- ment (1908), 164 F. 803. 90 C. C. A. 579. Agreements or combinations between dealers, having for their sole purpose the destruction of competition and the fixing of prices, are injurious to the public in- terest and void. They are not saved by the advantages which the participants ex- pect to derive from the enhanced price to the consumer. Where commodities have passed into the channels of trade and are owned by dealers, the validity of agree- ments to prevent competition and to main- tain prices is not to be determined by the circumstances whether thej^ were pro- duced by several manufacturers or by one, or whether they were previously owned by one or by many. The com- plainant having sold its product at prices satisfactory to itself, the public is en- titled to whatever advantage may be de- rived from competition in the subsequent traffic. I^Iiles Medical Co. v. Park & Sons Co., 220 U. S. 373, 408, 55 L. Ed. 502, 31 S. Ct. 376. The manufacturer bv rule and notice. in the absence of contract or statutory right, even though the restriction be known to purchasers, fix prices for future sales. It has been held by this court that no such privilege exists under the copy- right statutes, although the owner of the copyright has the sole right to vend copies of the copyrighted production. Bobbs-Merrill Co. v. Straus, 210 U. S. 339. 52 L. Ed. 1086, 28 S. Ct. 722. What- ever right the manufacturer may have to project his control beyond his 'own sales must depend, not upon an inherent power incident to production and original owner- ship, but upon agreement. Miles Medical Co. V. Park & Sons Co., 220 U. S. 373, 405. 55 L. Ed. 502. 31 S. Ct. 376. 445-31a. Limitation of actions. — United States r. Kissel. 218 U. S. 601, 54 L. Ed. 116S, 31 S. Ct. 124. Limitation of actions. — A conspiracy to restrain or monopolize trade, in violation of the Sherman Act of July 2, 1890 (26 Stat, at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200\ by obtaining control of a competitor through a pledge of the majority of its stock to secure a loan to a stockholder, and then voting to suspend business until further order of the board of directors, continues, so fa** as the stat- ute of limitation is concerned, so long as any further action is taken in furtherance of the conspiracy. United States v. Kis- sel, 218 U. S. 601. 54 L. Ed. 1168, 31 S. Ct. 124. 447-35b. Principles determining relief. — United States v. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632. See. also, ante. IN'JU.X'CTIOXS, p. 657. Where a combination has been formed to violate the prohibitions of the Anti- trust Act of July 2. 1890. in that it con- stitutes a restraint of trade within the first section, and an attempt to monopo- 447 MONOPOLIES AND CORPORATE TRUSTS. Vol. VIII. Proceedings to Effectuate Decree on Dissolution of a Combination. — An injunction will be awarded restraining extension or enlargement of power of combination. 2^*= The court below was directed to hear the parties, by evi- lize or a monopolization within the second section, the relief to be afiforded necessarily takes a two-fold aspect— the character of the permanent relief required and the nature of the temporary relief es- sential to be applied pending the work- ing out of permanent relief in the event that it be found that it is impossible un- der the situation to at once rectify such existing wrongful condition. United States V. American Tobacco Co., 221 U. S. 106, 185, 55 L. Ed. 663, 31 S. Ct. 632. "It may be conceded that ordinarily where it was found that acts had been done in violation of the statute, adequate measure of relief would result from re- straining the doing of such acts in the future. Swift & Co. v. United States, 196 U. S. 375, 49 L. Ed. 518. But iri a case like this, where the condition which has been brought about in violation of the statute, in and of itself, is not only a con- tinued attempt to monopolize, but also a monopolization, the duty to enforce the statute requires the application of broader and more controlling remedies. As penal- ties which are not authorized by law may not be inflicted by judicial authority, it follows that to meet the situation with which we are confronted the application of remedies two-fold in character be- comes essential: 1st. To forbid the do- ing in the future of acts like those which we have found to have been done in the past which would be violative of the stat- ute. 2. The exertion of such measure of relief as will efifectually dissolve the com- bination found to exist in violation of the statute, and thus neutralize the extension and continually operating force which the possession of the power unlawfully ob- tained has brought and will continue to bring about. In applying remedies for this purpose, however, the fact must not be overlooked that injury to the public by the prevention of an undue restraint on, or the monopolization of trade or commerce is the foundation upon which the prohibitions of the statute rests, and moreover that one of the fundamental purposes of the statute is to protect, not to destroy, rights of property." Standard Oil Co. V. United States, 221 U. S. 1, 77, 55 L. Ed. 619, 31 S. Ct. 502. See United States V. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632. Injunction or receiver, — In granting relief for a violation of §§ 1, 2 of the Anti- Trust Act of July 2, 1890, the court might at once resort to one or the other of two general remedies — a, the allowance of a permanent injunction restraining the com- bination as a universality and all the in- dividuals and corporations which form a part of or co-operate in it in any manner or form from continuing to engage in in- terstate commerce until the illegal situa- tion be cured, a ineasure of relief which would accord in substantial effect with that awarded below; to the extent that the court found illegal combinations to exist; or, b, to direct the appointment of a receiver to take charge of the assets and property in this country of the com- bination in all its amifications for the pur- pose of preventing a continued violation of the law, and thus working out by a sale of the property of the combination or otherwise, a condition of things which would not be repugnant to the prohibi- tions of the act. But. in view of the extent of the combination, the vast field Vv'hich it covers, the all-embracing char- acter of its activities concerning tobacco and its products, to at once stay the movement in interstate commerce of the products which the combination or its co-operating forces produce or control might inflict infinite injury upon the pub- lic by leading to a stoppage of supply and a great enhancement of prices; and be- cause the extensive power which would result from at once resorting to a receiver- ship might not only do grievous injury to the public, but also cause widespread and perhaps irreparable loss to many in- nocent people; the court did not direct the immediate application of either of these remedies. United States v. Ameri- can Tobacco Co., 221 U. S. 106, 186, 55 L. Ed. 663, 31 S. Ct. 632. Decree of reorganization adequate re- lief. — Adequate relief from a combination of terminal facilities which offends against the provisions of the Sherman Anti-Trust Act of July 2, 1890, §§ 1, 2, because it places such facilities under the exclusive ownership and control of less than all the railroad companies under compulsion, from the peculiar local topographical con- ditions, to use them, will be afforded by a decree requiring the reorganization of the combination so that it will act as the impartial agent of every railway line which must use the terminal instrumen- talities. United States v. Terminal R. Ass'n, 224 U. S. 383, 56 L. Ed. 810, 32 S. Ct. 507. 447-35C. Injunction. — Pending the work- ing out of a plan for dissolving a combi- nation found to control the tobacco in- - dustrv in violation oi Antitrust \ct July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), and for recreating out of the elements composing it a condition which will not be repugnant to the prohi- bitions of the act, each and all of such ele- ments should be restrained from doing any 888 Vol. VIII. MONOPOLIES AND CORPORATE TRUSTS. 447 dence or otherwise, for ascertainment of plan of dissolution and recreation.-^ ^"^ Time for Compliance with Decree. — The magnitude of interests involved in a combination required that six months be given to execute a decree of dis- solution.^'^*' Lawful Continuance of Business Pending- Dissolution. — A decree of dissolution which enjoined further violations of the Antitrust Act did not for- bid lawful contracts and agreements.-^^^ Possible serious injuries to the public forbade in the first instance the granting of a permanent injunction against engaging in interstate commerce, ^''^ and the same consideration forbade the act which might further extend or enlarge the pov/er of the combina'tion by any means or device whatsoever. United States V. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, re- versing decree (C. C), 164 F. 700 Upon failure of the parties to come to an agreem.ent in substantial accord with the opinion and decree requiring the re- organization of a combination of termi- nal facilities the court stated that it would, after hearing the parties upon a plan tor the dissolution of the combination, inake such order and decree for the complete disjoinder of the three systems, and their future operations as independent systems as might be necessary, enjoining the de- fendants, singly and collectively, from any exercise of control or dominion over ei- ther of the said terminal systems, or their related constituent companies, through lease, purchase, or stock control, and en- joining the defendants from voting any share in any of said coinpanies or receiv- ing dividends, directly or indirectly, or from any future combination of the said system, in evasion of such decree or any part thereof. United Staves v. Terminal R. Ass'n, 224 U. S. 383, 56 L. Ed. 810, 32 S. Ct. 507. 447-35d. Hearings. — To give effective force to a decree of the federal supreme court adjudging that a combination con- trolling the tobacco industry offends against Antitrust Act Julv 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), the court below will be directed to hear the parties, by evidence or otherwise, as it may deem proper, for the purpose of as- certaining and determining upon some plan or method of dissolving the combina- tion, and of recreating, out of the elements composing it, a new condition which shall not be repugnant to the law. United States V. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, revers- ing decree (C. C. 1908), 164 F. 700. 447-35e. Six months to execute decree. — The magnitude of the interests involved and their complexity require that six months be given in which to execute a de- cree for the dissolution of a holding com- pany controlling the oil industry in viola- tion of Antitrust Act Inly 2, 1890. c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), and for the transfer back to the stockholders of the subsidiary corporations of the stock which had been turned over to the holding company in exchange for its own stock. Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502, affirming iudgment. United States v. Standard Oil Co. of (N. J.), 34 L. R. A. (N. S.) 834, 173 F. 177. Six months, with a possible extension of sixty days, should be given in which to work out a plan for dissolving a combina- tion found to control the tobacco industry in violation of Antitrust Act July 2, 189u, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), and recreating out of the ele- ments composing it a condition which will not be repugnant to the prohibitions of the act. United States v. American To- bacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, reversing decree (C. C), 164 F. 700. 447-35f. Lawful continuance of busi- ness. — Power to make normal and lawful contracts or agreements is not taken from the stockholders of the subsidiary corpo- rations, or the corporations themselves, by a decree for the dissolution of a hold- ing company found to offend against Anti- trust Act July 2, 1890, c. 647, 26 Stat. 2U9 _(U. S. Comp. St. 1901, p. 3200), which en- joins such stockholders and corporations from in any way conspiring to violate the statute, or from monopolizing or attempt- ing to monopolize, in virtue of their stock ownership, and prohibits all agreements between them tending to produce or bring about further violations of the statute, but such decree merely restrains them from, by any device whatever, recreating, di- rectly or indirectly, the illegal combina- tion which the decree dissolves. Stand- ard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502, affirming judgment (C. C. 1909), United States v. Standard Oil Co. of New Jersey, 173 F. 177. 447-35g. Permanent injunctions. — The injury which miglit lie inflicted upon the public bj' staying interstate commerce in tobacco and its products by a combina- tion controlling the tobacco industry, in violation of Antitrust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), forbids the allowance, in the first instance, of a permanent injunction re- straining the combination as a whole, and 889 447-448 MONOPOLIES AND CORPORATE TRUSTS. Vol. VIII. appointment of a receiver.^^^ (3) Actions for Damages — (a) In General. — See note Z6. Allegations as to Damages. — It is not necessary to allege injury to an ex- isting business, though it is necessary to show intention and preparation as to prospective business. ^^^ 5. Effe:ct on Contracts. — See note 38. Defendants in an action for goods sold and delivered are entitled to judgment on a demurrer admitting the al- legations of a defense set up by the answer, which in substance disclose that plaintiff is the selling agent of a combination of wall paper manufacturers which all the individuals and corporations which form a part of, or co-operate in it any manner or form, from continuing to en- gage in interstate commerce until the il- legal situation is cured. United States v. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, reversing decree (C. C. 1908), 164 F. 700 The possible serious injury to the pub- lic from an absolute cessation of interstate commerce in petroleum and its products by the agencies embraced in a holding company controlling the oil industry, in violation of Anti-trust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), requires that, upon dissolving the holding company, the subsidiary corpora- tions should not be enjoined from carry- ing on interstate commerce until the dis- solution of the combination should be ef- fected, in accordance with the decree, bj* the transfer back to the stockholders of the subsidiary corporations of the stock which had been turned over to the hold- ing company in exchange for its own stock. Standard Oil Co. v. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502, af- firming judgment. United States v. Stand- ard Oil Co. of New Jersey, 34 L. R. A. (N. S.) 834, 173 F. 171. 447-35h, Appointment of receiver. — A receiver will not, in the first instance, be appointed to take charge of the assets and property of a combination controlling the tobacco industry, in violation of Anti- trust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), for the purpose of preventing a continued viola- tion of the law, and thus working out, by a sale of the property of the combination or otherwise, a condition which will not be repugnant to the prohibitions of the act, since the extensive power which would result from at once resorting to a receiv- ership might not only do grievous injury to the public, but also cause widespread and perhaps irreparable loss to many in- nocent persons. United States v. Ameri- can Tobacco Co., 221 U. S. 106, 55 L. Ed. 663, 31 S. Ct. 632, reversing decree (C. C), 104 F. 700. 447-36. Provision stated. — Loewe v. Lawlor, 208 U. S. 274, 52 L. Ed. 488, 28 S. Ct. 301; Continental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 486, 29 S. Ct. 280. 447-36a. Allegations of damages. — In order to state a cause of action for dam- ages for conspiracy in restraint of inter- state commerce under the federal Anti- trust Act, it is not necessary to jdloge in- jury to an existing business, though it is necessary to state facts showing an in- tention and preparedness to engage in business, it being as unlawful to prevent a person from engaging in business as it is to drive one out of business. Judgment (C. C. 1908), 160- F. 184, affirmed. (1908) American Banana Co. v. United Fruit Co., 166 F. 261, 92 C. C. A. 325, judgment af- firmed American Banana Co. v. United Fruit Co., 213 U. S. 347, 53 L. Ed. 826, 29 S. Ct. 511. Where a complaint for conspiracy in re- straint of foreign commerce in violation of the federal Anti-trust Act changed in- jury to plaintiff's plantation by Costa Ri- can officials resulting from an alleged con- spiracy with defendant, and also that de- fendant controlled the banana market in the West Indies and in Central and South America and prevented plaintiff from bu}-- ing and shipping bananas to the United States and selling them to its great- profit, which it would otherwise have done, such latter allegation would be treated as inci- dental to plaintiff's demand for damages for mjury to its plantation, in the absence of an allegation that plaintiff had invested any money in preparing to engage in buy- ing, shipping and selling bananas as a business independent of the operation of :ts own plantation. American Banana Co. V. United Fruit Co., 166 F. 201, 92 C. C. A. 32, judgment affirmed American Banana Co. V. United Fruit Co., 213 U. S. 347, 53 L. Ed. 826, 29 S. Ct. 511. 448-38. Illegality of contract as defense to suit. — A recovery upon an account for goods sold and delivered by a corporation created to effectuate a combination of wall paper manufacturers, intended and having the effect directly to restrain and monopolize trade and commerce, in vio- lation of Anti-trust Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901. p. 3200), can not be had where the account is made up, within the knowledge of both buyer and seller, with direct reference to, and in execution of, the agreements which constitute the illegal combination. Con- tinental Wall Paper Co. v. Voight & Sons Co., 212 U. S. 227, 53 L. Ed. 486. 29 S. Ct. 280. 890 Vol. VIII. MORTGAGES AND DEEDS OF TRUST. 448-451 offends against Antitrust Act July 2, 1890, c. 647,26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), that, in carrying out such combination defendants were virtually compelled to sign a jobber's agreement which, in effect, bound them to buy from the plaintiff' all the wall paper needed in their business at certain fixed prices, and not to sell at lower prices or upon better terms than those at which plain- tiff itself sells to dealers other than jobbers that the goods in question were ordered pursuant to such agreement and at the prices fixed ; that such prices were unreasonable ; and that all the transactions between the parties were in furtherance of the illegal combination.^^^ MONUMENTS.— See ante, Boundariijs, p. 206. MOOT QUESTIONS.— See note a. MORTGAGES AND DEEDS OF TRUST. II. Transactions Either Mortgages or Sales, 892. G. Evidence, 892. 2. Admissibility, 892. IV. Form, Requisites and Validity, 892. K. Validity, 892. 1^. Accrued Interest of Heir, 892. V. Operation and Effect, 892. B. Indebtedness Secured, 892. Zy.. Entire Debt Secured, 892. VII. Rights, Duties and Liabilities of Parties, 892. D. Of Trustees, 892. X. Transfer or Lease of Encumbered Property, 892. F. Purchasers' Rights, 892. XII. Foreclosure, 893. C. By Suit or Action, 893. 5. Limitation and Laches, 893. d. Bar of Obligation Secured, 893. CROSS REFERENCES. See the title Mortgages and Deeds oe Trust, vol. 8, p. 452, and references there given. In addition, see ante, Appeal and Error, p. 34; Bankruptcy, p. 168: Courts, p. 398; Dismissal, Discontinuance and Nonsuit, p. 466; Joint 448-38a. A court will not lend its aid, 451-a. Moot case. — A review of reta- in any way, to a party seeking to realize tions of the trial court in a criminal case the fruits of an aQ:reement that appears to by an appeal taken, under D. C. Code. be tainted with illegality, although the re- § 93.5, on behalf of the government after suit of applying that rule maj' sometimes acquittal, on which the court has no be to shield one has got something for power to set aside the verdict involving a which, as between man and man. he ought, determination of moot question only, perhaps, to pay, but for which he is un- which is not a judicial function, can not willing to pay. Judgment (1906) Conti- be required of the federal court by con- nental Wall Paper Co. :'. Lewis Voight & gress. United States v. Evans, 213 U. S. Sons Co., 148 F. 939, 78 C. C. A. 567, af- 297. 53 L. Ed. 803, 29 S. Ct. 507. See ante, firmed. Continental Wall Paper Co. z: APPEAL AND ERROR, p. 34. Voight & Sons Co.. 212 U. S. 227, 53 L. Ed. 486, 29 S. Ct. 280. 891 463-484 MORTGAGES AND DEEDS OF TRUST. Vol. VIII. Tenants and Tenants in Common, p. 806; Judgments and Decrees, p. 807; Laches, p. 818; post. Pledge and Collateral Security; Rescission, Cancellation and Reformation. As to federal courts following state court decisions in matters relating to mortgages and deeds of trust, see ante, Courts, p. 398. As to laches in fore- closure suit, see ante, Laches, p. 818. As to taxation of mortgaged land for full value, see ante, DuE Process oe Law, p. 475. II. Transactions Either Mortgages or Sales. G. Evidence — 2. Admissibility. — See note 34. IV. Form, Requisites and Validity. K. Validity — 1>4. Accrued Interest of Heir. — Accrued Interest of Heir. — An heir's right in Porto Rico to mortgage accrued undivided interest in an inheritance is unaffected by the mortgage law.^*^^ V. Operation and Effect. B. Indebtedness Secured — 3^^. Entire Debt Secured. — A mortgagor's liabilitv under a mortgage to secure a debt extends to the whole debt, whether executed by her as principal or surety. ^''^ VII. Rights, Duties .and Liabilities of Parties. D. Of Trustees. — Acts of Receiver. — A trustee was not liable for acts of receiver. "^^^ X. Transfer or Lease of Encumbered Property. F. Purchasers' Rights. — The purchaser of mortgaged property, under agreement to assume lien of mortgage and judgment of foreclosure, is not en- titled to have his title quieted against mortgage without paying mortgage debt.*'''^ 463-34. Evidence to additional security. — Evidence to show tliat a l)ill of sale which appears on its face to have been given in discharge of a debt was reallj' in- tended to give the creditor additional se- curity is admissible under the Porto Rico law of evidence, § 101, declaring that the rule which raises a conclusive presumption of the truth of the facts in a written in- strument does not apply to the recital of a consideration. Cabrera f. American Colonial Bank, 214 U. S. 224. 53 L. Ed. 974. 29 S. Ct. 623. 466-66a. Accrued interest of heir. — The accrued interest of an heir, though undi- vided, is not a property right to be ''owned in the future," within the provisions of Porto Rico ^lortgage Law. art. 108, defin- ing things not mortgageable. Cabrera 7". American Colonial Bank, 214 U. S. 224, 53 L. Ed. 974. 29 S. Ct. 623. An heir's right to mortgage his accrued undivided interest is not affected b}' pro- visions of Porto Rico Mortgage Laws, arts. 110, 111, which only define incidents of an estate to which mortgage of it ex- tends. Cabrera v. American Colonial Bank, 214 U. S. 224, 53 L. Ed. 974, 29 S. Ct. 623. 470-99a. Entire debt secured. — Cabrera r. American Colonial Bank. 214 U. S. 224, 53 L. Ed. 974, 29 S. Ct. 623. 477-48a. Acts of receiver. — The trustee in a mortgage of the property of a canal and irrigation company, who brings a suit for foreclosure and sale, and obtains the appointment of a receiver to take charge of and mariage the property pendente lite, does not, by reason of such action, be- come personally liable for money bor- rowed, expenses inciu-red, and certificates issued by the receiver under orders of the court, in keeping the corporation on its feet as a going concern, which the pro- ceeds of the sale proved insufficient to pay. Atlantic Trust Co. v. Chapman, 208 U. S. 360, 52 L. Ed. 528, 28 S. Ct. 406. 484-97a. Rights of purchaser against mortgagee. — I'he purchaser of mortgaged property, under an agreement to pay the lien of the mortgages and the judgments of foreclosure thereon, is not entitled to have his title quieted as against the mort- gagee, without paying the m.ortgage debt, although the mortgagee in bad faith evaded the purchaser's effort to make such payment, and with full knowledge of the facts, and with intent to defraud, procured from the mortgagor a convey- ance of a part of the premises, and a new mortgage on the residue, and satisfied of record the former mortgages and judg- ment liens. Stoffela z: Nugent, 217 U. S. 499, 54 L. Ed. 856, 30 S. Ct. 600. 892 Vol. MIL .1/ UL TIFARIO USNESS. 499-535 XII. Foreclosure. C. By Suit or Action— 5. Limitatiox axd Laches— d. Bar of Obligation Secured. — See note 2. MOTIONS AND SUMMARY PROCEEDINGS.— See the title Motions and Summary Proceedings, vol. 8, p. 528, and references there given. As to denial of motion for judgment on pleadings, not constituting reversible error, see ante, Appeal and Error, p. 34. MOVING PICTURES.— See ante, Copyright, p. Z77 . MULTIFARIOUSNESS. I. Definition and General Nature, 893. C. Rules for Determining ^Multifariousness, 893. II. Forms of Multifariousness, 893. A. ^Misjoinder of Causes of Action, 893. B. ^lisjoinder of Parties, 894. III. Time and Method of Raising Objections, 894. CROSS REFERENCES. See the title ^^Iultifariousness, vol. 8, p. 532, and references there given. I. Definition and General Nature. C. Rules for Determining Multifariousness. — See note 3. II. Forms of Multifariousness. A. Misjoinder of Causes of Action. — See note 9. 499-2. Bar of obligation secured. — "It is established law in Texas that, when a debt is barred, an action to foreclose a lien or mortgage given as security for it is barred also." Diipree v. Mansur, 214 U. S. 161, 53 L. Ed. 950, 29 S. Ct. 548. ■'By the law of Texas the security is in- cident to the note, and does not warrant a foreclosure when the note does not war- rant a jitdgment." Dupree v. Mansur, 214 U. S. 161, 53 L. Ed. 950, 29 S. Ct. 548. See. also, ante, LIMITATION OF AC- TIONS AND ADVERSE POSSESSION, p. 828. 533-3. Suit by one state against another. - — Objections as to multifariousness, laches, and the like, except so fai as they affect the merits, will not be considered by the federal supreme court in a suit by the commonwealth of Virginia against the state of West Virginia, to determine the am.ount due to the former by the lat- ter as the equitable proportion of the public debt of Virginia which was assumed l5y West Virginia at the time of its crea- tion as a state. Virginia v. \\'est Virginia. 1220 XT. S. 1, 55 L. Ed. 353, 31 S. Ct. 330. 535-9. Cancellation of separate convey- ances to Indians. — .\ bill filed by the United States to cancel conveyances by Indian allottees on the ground that they were in violation of existing restrictions upon the power of alienation is not open to the ob- jection of multifariousness or misjoinder because the suit involves a large number of separate conveyances by individual In- dian allottees to distinct grantees made parties defendant. Heckman v. United States, 224 U. S. 413, 56 L. Ed. 820, 32 S. Ct. 424; Mullen v. United States, 224 U. S. 448, 56 L. Ed. 834, 32 S. Ct. 494. Acts of each defendant of like character and defenses the same. — An objection of nmltifariousness based on misjoinder of parties and causes of action does not lie against a bill to enjoin ticket brokers from dealing in nontransferable reduced rate excursion tickets, where the acts com- plained of as to each defendant were of a like character, their operation and effect upon the rights of the complaining car- rier were identical, the relief sought against each defendant being the same, and the defenses which might be inter- posed being common to each defendant, and involving like legal questions. Judg- ment, Louisville & N. R. Co. v. Bitterman (1906), 144 F. 34, 75 C. C. A. 192, affirmed. Bitterman v. Louisville, etc., R. Co.. 207 U. S. 205, 52 L. Ed. 171, 28 S. Ct. 91. 893 536-540 MULTIPLICITY OF SUITS. Vol. VIIL B. Misjoinder of Parties. — Suit against a Prosecuting Attorney and Secretary of State. — See note 11. III. Time and Manner of Raising Objections. See notes 13, 16. MULTIPLICITY OF SUITS. I. General Rule, 894. CROSS REFERENCES. See the title ^^Iultiplicity of Suits, vol. 8, p. 539, and references there given.. I. General Rule. Repetition of Suits between Same Parties Involving Same Facts and Legal Principles. — A court of equity ought not to interfere upon the ground of danger of multiplicity of suits by the same person against the complainant for causes of action arising out of the same facts and legal principles, unless it is clearly necessary to protect the complainant against continued and vexatious litigation. ^^ Plaintiff Can Not Invoke Rule for Benefit of Defendant. — Equity juris- diction can not depend on the fact that defendant will be saved a multiplicity of suits by other parties, where defendant raises no objection to such suits, and urges no such ground for jurisdiction in equity of the suit in question.-^'' 536-11. Misjoinder of defendants. — Mul- tifariousness can not successfully be urged against a bill filed 1)y a foreign railway company in a federal circuit court to en- join a prosecuting attorney from enforc- ing a state statute requiring the stoppage of interstate passenger trains at junction points, and to restrain the secretary of state from proceeding under the authority of another state statute to revoke the company's license and right to do local business because of bringing suit in a fed- eral court. Herndon <:•. Chicago, etc., R. Co., 218 U. S. 1.35. .54 L. Ed. 9/"o, .30 S. Ct. 63.3; Roach z: Atchison, etc., R. Co, 218 U. S. 159. 54 L. Ed. 978, 30 S. Ct. 639. Af- firming decree Chicago, R. I. & P. Rv. Co. V. Swans^er ( C. C. 1908), 157 F. 783. See ante, "Misjoinder of Causes of Auc- tion." TT, A. 536-13. Objection taken by demurrer, plea or answer. — Wliere a bill is objected to because joinder defendants, the objec- tion must be promptly made. The proper way to raise such question is by special de- murrer, specifically directed to the objec- tion. It is true that a court may itself take the objection in extreme cases, when that course is essential to the necessary and proper administration of justice. But, if the court can get to a final decree without serious embarrassment, it will do so. "A fortiori, an appellate court would scarcely entertain the objection, if it was not forced upon it by a moral necessity." Herndon v. Chicago, etc, R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633; Roach v. Atchison, etc., R. Co., 218 U. S. 157, 54 L. Ed. 978, 30 S. Ct. 639. 537-16. Objection can not be made in appellate court. — The objection of multi- fariousness will not prevail on appeal, where the bill charges a conspiracy be- tween several trespassers, and trespasses extending over the greater part of contig- uous lots, treated as one — especially where defendants did not stand upon their de- murrers setting up such objection, and the case has been tried after long delay. De- cree. Ashburn v. Graves (1907). 149 F. 968, 79 C. C. A. 478, reversed. Graves v. Ash- burn, 215 U. S. 331, 54 L. Ed. 217, 30 S. Ct. 108. 540-5a. Repetition of suits between same parties. — Boise, etc.. Water Co. i'. Boise. 213 U. S. 276, 53 L. Ed. 796. 29 S. Ct. 426. See, also, ante, INJUNCTIONS, p. 657. "Something more is reqviired than the beginning of a single action with an hon- est purpose to settle the rights of the par- ties. 1 Pomeroy's Eq. Juris., 3d Ed., § 254. Perhaps it might be necessary to await the final decision of one action at law (see for analogies Sharon z". Tucker, 144 U. S. 533, 36 L. Ed. 532; Boston, etc., Min. Co. v. Montana Ore, etc., Co., 188 U. S. 632, 47 L. Ed. 626), but that we need not decide." Boise, etc., Water Co. v. Boise, 213 U. S. 276, 286, 53 L. Ed. 796, 29 S. Ct. 426. 540-5b. Who may invoke rule. — Decree (1907) Brown z'. Equitable Life Assur. Society of United States, 151 F. 1, 81 C. C. A. 1. reversed. Equitable Life Assur. Soc. V. Brown, 213 U. S. 25, 53 L. Ed. 682, 29» S. Ct. 404. 894 A'ol. VIII. MUNICIPAL CORPORATIONS. MUNICIPAL BONDS.— See post, Municipal, County, State and Fed- eral Securities. MUNICIPAL CORPORATIONS. I. Definition and General Consideration, 896. A. Definition. Nature and Purpose, 896. II. Incorporation, Creation and Organization, 897. A. In General, 897. III. Charters, 897. E. Effect as Contract. 897. IV. Territory and Subdivisions, 897. C. Alteration. 2\loclification, Consolidation and Dissolution, 897. 3. Annexation and Consolidation, 897. c. Eft'ect, 897. (6) Taxation, 897. 5. Dissolution and Change of Form, 897. b. \Miat Amounts to Dissolution, 897. c. Effect upon Powers, Property, Immunities, Debts and Lia- bilities. 897. (1) Change in Continuity of Political Organizations. 897. (d) Xew Xame or Xew Corporation Alade Out of Old. 897. V. Powers, Privileges and Obligations, 898. A. In General, 898. D. Classification of Powers, etc., as Public and Private, 898. H. Construction of Grants of Power and Privileges, 898. 2. Rule of Strict Construction, 898. a. In General. 898. L. Particular Powers and Privileges, 898. 17. Police Powers and Regulation of Alunicipal Aft'airs, 898. a. In General. 898. 29. Light or Illumination, 899. 31. Water Supplv. 899. y:'. As to Buildings, 899. VI. Municipal Contracts, 899. A. Power to Contracts, 899. 1. In General, 899. I. Particular Contracts, 899. 1. Grant of Franchise, 899. a. In General. 899. b. Power to Grant Exclusive Privilege or Franchise and Create ^Monopolies. 899. c. Construction of Grants. 900. 2. Contracts Concerning or Restricting Governmental Functions or Powers, 901. a. In General. 901. b. Contracts Abridging Power to Fix Rates. 901. 4. Contracts Creating Indebtedness. 902. c. Source of Payment, 902. 6. Contract with Judgment Creditor as to Order of Payment, 902. 895 554 MUNICIPAL CORPORATIONS. Vol. VIII. VII. Municipal Property, 902. A. Acquisition and Title, 902. - 1. In General, 902. 3. Property Acquirable and Purposes of Acquisition, 902. b. Private Property Not of a Governmental Nature, 902. D. Liability of Property for Debts, 903. 1. In General, 903. E. Legislative Control, 903. 1. In General, 903. VIII. Municipal Torts, 904. A. In General, 904. K. Mob Violence, 904. IX. Governing" Bodies, Administrative Boards and Officers and Agents, 904. C. Municipal Ofificers and Agents, 904. 8. Termination of Office — Holding Over, 904. X. Legislative Control, 904. A. In General, 904. E. Powers, 904. F. Officers and Agents, 904. I. Power of Taxation and Revenue, 904. 1. In General, 904. XIII. Ratification, Estoppel and Laches, 905. B. Estoppel, 905. CROSS REFERENCES. See the title Municipal Corporations, vol. 8, p. 546, and references there given. As to municipal legislation impairing obligations of contracts, see ante, Im- pairment OF Obligation op Contracts, p. 624. As to due process of law in assessments for due public improvements, see ante, Due: Process of Law, p. 475 ; post. Special Assessments. As to regulation of use of streets, see post. Police Power; Streets and Highways. See also, ante. Due Process oe Law, p. 475. As to telegraph and telephone franchises to use streets, see post, Streets .\ND Highways; Telegraphs and Telephones. As to regulating telegraph and telephone rates, service, etc., see post, Telegraphs and Telephones. As to gas rates, see ante. Gas, p. 607. As to water rates, see post. Water Com- panies AND Waterworks. As to municipal taxation, see post. Taxation. I. Definition and General Consideration. A. Definition, Nature and Purpose. — Municipal corporations are politi- cal subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them.^^a 554-12a. Division of state. — Hunter v. 21 L. Ed. 597; Commissioners v. Commis- Pittsburgh. 207 U. S. 161. 52 L. Ed. 151, sinners. 92 U. S. 307. 312. 23 L. Ed. 552; 28 S. Ct. 40. Tippecanoe County v. Lucas, 93 U. S 108, "This court has many times had occa- 23 L. Ed. 822; New Orleans v. Clai-k, 95 sion to consider and decide the nature of U. S. 644, 24 L. Ed. 521; Mount Pleasant municipal corporations, their rights and t'. Beckwith, 100 U. S. 514, 532, 25 L. Ed. duties, and the rights of their citizens and 699; Meriweather v. Garrett, 102 U. S. 472, creditors. Maryland v. Baltimore, etc., 511, 26 L. Ed. 197; Kelly v. Pittsburgh, R. Co., 3 How.' 534, 550, 11 L. Ed. 714; 104 U. S. 78, SO, 26 L. Ed. 658; Forsyth v. East Hartford v. Hartford Bridge Co., 10 Hammond, 166 U. S. 506, 518, 41 L. Ed. How. 511, 536, 13 L. Ed. 518; United 1095, 17 S. Ct. 665; Williams v. Eggleston, States V. Railroad Co., 17 Wall. 322. 329, 170 U. S. 304, 310, 42 L. Ed. 1047, 18 S. Ct. 896 Vol. VIII. MUXICIPAL CORPORATIOXS^ 555-563 II. Incorporation, Creation and Organization. A. In General. — The state is the creator of subordinate, municipal govern- ments. -^'^ III. Charters. E. Effect as Contract. — The charter of a municipal corporation is not a contract v.'ith the state. "♦"^ IV. Territory and Subdivisions. C. Alteration, Modification, Consolidation and Dissolution — 3. An- nexation AND CoNSOLiDATioNl^c. Effect — (6) Taxation. — Impairment of Obligation of Contract. — There is no contract between the citizens and taxpayers of a municipal corporation and the corporation itself, that the former shall be taxed only for the uses of that corporation, which is impaired by subjecting them to taxation for the uses of the enlarged municipality formed by annexation to an adjoining and larger municipality.^^^ Due Process of Law. — Citizens and taxpayers of a lesser municipality annexed to an adjoining and larger municipality are not deprived of their property without due process of law by reason of the burden of additional taxation resulting from the consolidation, although the method of voting pre- scribed by the statute has permitted the voters of the larger city to overpower the voters of the smaller one, and compel the union without their consent and against their protest.^^'' 5. Dissolution and Change of For:.i — b. ]]liat Aiiioitnls to Dissolution. — A municipal corporation is not totally dissolved as a mere consequence of military occupation or territorial cession.^"^*^ c. Effect upon Powers, Property, Immunities, Debts and Liabilities — (1) Change in Continuity of Political Organisations — (d) Nezv' Name or New Corporation Made Out of Old. — Where a municipal charter is replaced and the old charter organization abolished but the same or substantially the same in- habitants are erected into a new corporation, whether with extended or re- 617: Covington v. Kentucky, 173 U. S. 231, son for presuming their total dissolution 241, 43 L. Ed. 679, 19 S. Ct. 383; Worces- as a mere consequence of military occu- ter V. Worcester, etc., St. R. Co., 196 U. pation or territorial cession. The suspen- S. 539, 549. 49 L. Ed. 591, 25 S. Ct. 327; sion of such governmental functions are Attorney General v. Lowre5% 199 U. S. as obviously incompatible with the new 233, 50 L. Ed. 167, 26 S. Ct. 27." Hunter political relations thus brought about may V. Pittsburg, 207 U. S. 161, 52 L. Ed. 151, be presumed. But no such implication 28 S Ct 40 may be reasonably indulged beyond that 555-21a. Chicago v. Sturges, 222 U. S. result." Vilas v. Manila, 220 U. S. 345, 55 313, 56 L. Ed. 215, 32 S. Ct. 92. L- Ed. 491, 31 S. Ct. 410. 558-40a. Effect of contract.— Hunter v. In the case of the city of Manila the legal Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 entity survived both the m.li ary occupa- S C\ 40 " ^ cession which toUowea. inis ^' ' ' ^^ TT 1 o^,- TT o conclusion "finds support in the cases 562-58a. Hunter v. Pittsburg, 20< U b. ^j^j^j^ j^^l^ ^j^^^ ^j^^ Pueblos of San Fran- 161, 52 L. Ed. 151, 28 S. Ct. 40, so holding ^j^^^ ^^^ ^^^ Angeles, which existed as under Pa. Act of Pcb^T^ 1906 bee ante, ^^^nicipal organizations prior to the ces- IMPAIRMENT OF OBLIGATION OF ^-^^^ of California by Mexico, continued to COXTRACTS, p. 624. exist with their community and property 5e2-58b. Due process of law. — Hunter v. rights intact. Cohas v. Raisin, 3 Cal. 443; Pittsburg, 207 U. S. 161, 52 L. Ed. 151, 28 Hart v. Burnett, 15 Cal. 530; Townsend v. S. Ct. 40, so holding under Penn. Act Feb. Greeley, 5 Wall. 326, 18 L. Ed. 547; Mer- 7, 1906. ryman v. Bourne, 9 Wall. 592, 602, 19 L. 563-67a Dissolution — Military occu- Ed. 683; More v. Steinbach, 127 U. S. 70, pation or territorial cession.— Vilas v. Ma- 32 L. Ed. 51, 8 S. Ct. 1067; Los Angeles nila 220 U S 345, 55 L- Ed. 491, 31 S. Ct. Farming, etc., Co. v. Los Angeles, 217 U. 41(5 ' ■ S. 217, 54 L. Ed. 736, 30 S. Ct. 452." Vilas "in view of the dual character of munic- r-. Manila. 220 U. S. 345, 55 L. Ed. 491, 31 ipal corporations there is no public rea- S. Ct. 416. 12 U S Enc— 57 897 564-569 MUNICIPAL CORPORA TIONS. Vol. VIII. stricted territorial limits, such new corporation is treated as in law the successor of the old one, entitled to its property rights, and subject to its liabilities.''^'^ In the absence of express legislative declaration of a contrary purpose, no reason for supposing tliat the reincorporation of an old municipality is intended to permit an escape from the obligations of the old, to whose property and rights it has succeeded. The juristic identity of the corporation has been in no wise alTected, and, in law, the present city is, in every legal sense, the successor of the old. As such it is entitled to the property and property rights of the pred- ecessor corporation, and is, in law, subject to all of its liabilities."^" This is the rule where the reincorporated municipality is situated in territory recently acquired by cession." ^"^ V. Powers, Privileges and Obligations. A. In General. — See ante. "Definition, Nature and Purpose," I, A. D. Classification of Powers, etc., as Public and Private. — See note 84. H. Construction of Grants of Power and Privileges — 2. Rule of Strict Construction — a. In General. — Grants to municipal corporations, like grants to private corporations, are subject to the rule of strict construction."^^ L. Particular Powers and Privileges — 17. Polich Powers and Regu- lation oE ^Municipal Aeeairs — a. In General. — Preservation of Law and Order and Protection of Property.— The state vests in subordinate munici- 564-71a. Vilas v. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416. following Shapleigh v. San Angelo, 167 U. S. 646, 42 L. Ed. 310, 17 S. Ct. 957. In Shapleigh v. San Angelo, 167 U. S. 648, 43 L.'Ed. 310, 17 S. Ct. 957, "this court said in a similar case: 'The state's plenary power over its municipal corporations to change their organization, to modify their method of internal government, or to abolish them altogether, is not re- stricted by contracts entered into by the municipality with its creditors or with private parties. An absolute repeal of a municipal charter is therefor effectual so far as it abolishes the old corporate or- ganization." " Vilas V. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416. 564-71b. Vilas v. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416, following Broughton v. Pensacola, 93 U. S. 266, 23 L. Ed. 896; Mount Pleasant v. Beckwith, 100 U. S. 514, 520, 25 L. Ed. 699; Mobile v. Watson, 116 U. S. 289. 29 L. Ed. 620, 6 S. Ct. 398; Shapleigh v. San Angelo. 167 U. S. 646, 655. 42 E. Ed. 310, 17 S. Ct. 957. 564-71C. The present city of Manila, re- incorporated by the Philippine Commis- sion with substantially the same munici- pal powers, area, and inhabitants as the Spanish municipality of the same name, is liable upon municipal obligations incur- red prior to the cession of the Philippine Islands by the treaty of Paris of Decem- ber 10, 1898, to the United States. Vilas V. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416. 567-84. Classification of powers, etc., as public and private. — ^lunicipal corpo- rations "exercise powers which are gov- ernmental and powers which are of a pri- vate or business character. In the one character a municipal corporation is a governmental subdivision, and for that purpose exercises by delegation a part of the sovereignty of the state. In the other character it is a m.ere legal entity or ju- ristic person. In the latter character it stands for the community in the adminis- tration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred." Vilas V. Manila, 220 U. S. 345, 55 L. Ed. 491. 31 S. Ct. 416. "The distinction is observed in South Carolina v. United States, 199 U. S. 4-37, 461, 50 L. Ed. 261, 26 S. Ct. 110, where Lloyd V. Xew York, 5 N. Y. 369, 374, 55 Am. Dec. 347, and Western Sav. Fund Soc. V. Philadelphia, 31 Pa. 175, 72 Am. Dec. 730. are cited and approved. "In Lloyd v. New York, supra (5 N. Y. 369), it is said: 'The corporation of the city of New York possesses two kinds of powers: one governmental and public, and to the extent they are held and exor- cised, is clothed with sovereignty; the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for pub- lic purposes, the latter for private pur- poses. While in the exercise of the former, the corporation is a municipal government; and while in the exer- cise of the latter, is a corporate leeal individual.' See, also, Dill. Mun. Corp. 4th Ed. 66; Petersburg v. Applegarth, 28 Gratt. 321, 343, 26 Am. Rep. 357, and Oliver v. Worcester, 102 Mass. 489. 3 Am. Rep. 485." Vilas V. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416. 569-98a. Water, etc.. Co. v. Hutchinson,. 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. 898 \'ol. \"lil. MUXICIPAL CORPORA TIOXS. 576-586 pal governments the police powers essential to the preservation of law and order. It imposes upon them the duty of protecting property situated within their limits from the violence of such public breaches of the peace as are mobs and riots.-^-^'^ 29. Light or Illumixatiox. — Gas Rates. — See ante, Gas, p. 607. 31. Water Supply. — See post, A\'ater Compaxies axd Waterworks. 35. As TO BuiLDixGs. — Building Regulations. — See post, Police Power. VI. Municipal Contracts. A. Power to Contract — 1. Ix Gexeral. — A municipal contract is void where authority to make the contract was not vested in the municipality.'*'^'' I. Particular Contracts — 1. Graxt oe Fraxchise — a. In General. — See ante, Corporatioxs, p. 381. See, also, post, "Power to Grant Exclusive Priv- ilege or Franchise and Create Monopolies," \'l, I, 1. h. h. Pozvcr to Grant E.\'chisivc Prkilcgc or Franchise and Create Monopolies. — The power of a municipal corporation to grant exclusive privileges must be conferred by explicit terms. If inferred from other powers, it is not enough that the power is convenient to other powers; it must be indispensable to them.''^'^ 576-33a. Chicago v. Sturges, 222 U. S. 3i:;. .56 L. Ed. 21.j. 32 S. Ci - 579-47a. Home Tel., etc., Co. z: Los An- geles, 211 U. S. 265, 53 L. Ed. 176. 29 S. Ct. 50. 586-91a. Water, etc., Co. z: Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135, following Freeport Water Co z\ Free- port, 180 U. S. 587, 598, 45 L. Ed. 679, 21 S. Ct. 493; Rogers Park Water Co. v. ter- gus, 180 U. S. 624. 45 L. Ed. 702. 21 S. Ct. 490; Joplin z'. Southwest Missouri Light Co.. 191 U. S. 150, 48 L. Ed. 127. 24 S. Ct. 43. and Owensboro z\ Owensboro Water- works Co.. 191 U. S. 358, 48 L. Ed. 217. 24 <. Ct. 82. "There are privileges which may exist in their full entirety in more than one per- son, and the privilege or franchise or right to supply the inhabitants of a city with light or water is of this kind. A grant of power to confer such privilege is not necessarily a grant of power to make it exclusive. To hold otherwise would impugn the cited cases and their reasoning. It would destroy the rule of strict construction. The foundation of that rule requires the grant of such power to be explicit — explicit in the letter of the grant — or, if inferred from other powers or purposes, to be not only con- venient to them, but indispensable to them. And these conditions are imperative, too firm of authority to be disregarded upon the petition of equities, however strong." Water, etc.. Co. z: Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. The above rule which governs in such cases was expressed in Freeport Water Co. V. Freeport, 180 U. S. 587, 598. 45 L. Ed. 679, 21 S. Ct. 493, where a statute of Illinois was considered which gave power to cities and villages to provide for the supply of water at such rates as might be fixed by ordinance and for a period not exceeding thirty years. Water, etc., Co. V. Hutchinson. 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. "The doctrine was recognized as exist- ing in Walla Walla z: W'alla Walla Water Co., 172 U. S. 1, 43 L. Ed. 341, 19 S. Ct. 77, and in Vicksburg v. Vicksburg Water- works Co., 202 U. S. 453, 5a L. Ed. 1102, 26 S. Ct. 660. In the two latter cases tiie power of the respective cities to make a contract precluding them from building waterworks and operating their own water systems was declared. In the Vicksburg case it was pointed out that the power of the city to exclude itself from building waterworks of its own was recognized to exist by the supreme court of Mississippi."' W^ater, etc., Co. v. Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. "In Vicksburg z: Vicksburg Waterworks Co., 206 U. S. 496. 51 L. Ed. \l55, 27 S. Ct. 762, a contract of the cit3% fixing a maxi- mum rate, was sustained upon the author- ity of the decisions of the supreme court of the state, holding that, under a broad grant, of power conferring, without re- striction or limitation upon the city, the right to make a contract for a supply of the water, it was within the right of the city council, in the exercise of that power, to make a binding contract fixing the max- imum rate at which the water should be sujiplied to the inhabitants of the city for a limited term of years." Water, etc., Co. V. Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. "In Detroit, etc., St. R. Co. z'. Detroit Railway, 171 U. S. 48, 43 L. Ed. 67, 18 S. Ct. 732, following and applying the doc- trine of previous ca-^es. it was said 'hat the power to grant an exclusive privilege must be expressly given, or, if inferred from other powers, must be indispensable to them, and that this principle was firmly fixed by authority. See, also. Dill. Mun. Corp.. 4th Ed., § so. 'I'he case was con- 899 586 MUNICIPAL CORPORATIONS. Vol. VIII. c. Construction of Grants. — Ordinances granting franchises and special priv- ileges are not to be extended by implication, and all that is granted must be found in the plain terms of the act. • Recognizing this principle, it must also be remembered that grants of this character, when embodying the terms of a contract, are protected by the federal constitution from impairment by subse- quent state legislation, and notwithstanding the principle of strict construction, whatever is plainly granted can not be taken from the parties entitled thereto by such legislative enactments. Statutes and ordinances of this character are not to be extended by construction, nor should they be deprived of their mean- ing, if it is plainly and clearly expressed.^^^ cerned with a grant to a street railway, and, in the argument of the cases at bar, a distinction is asserted between an ex- clusive privilege to occupy the surface of streets and interfere with 'a matter of common right,' and a privilege to use the streets below the surface 'as incidental only and subsidiary to the performance of a contract pertaining to another matter;' and on this distinction, it is argued, the 'first must show an express grant of au- thority' to make the right exclusive, but that the second is not limited by such re- quirement. The distinction is only one of degree, and has not been considered as varying the application of the rule of con- struction announced."' Water, etc., Co. V. Hutchinson, 207 U. S. ."^SS. 52 L. Ed. 257, 28 S. Ct. 135. Municipal power to grant an exclusive franchise can not be deduced from provi- sions of the Kansas statutes conferring, inter alia, power to provide for the gen- eral welfare, and to enable the municipal- ity to construct water and lighting plants of its own, or to make contracts with any person or company for such purposes, and giving such person or company the priv- ilege of furnishing light for streets, lanes, or alleys for any length of time not ex- ceeding 21 years, especially where the sec- tion most relied upon as conferring this power had been so amended before its at- tempted exercise as to omit the words "the exclusive privilege." Judgment (C. C. 1906), 144 F. 256, affirmed. Water, etc., Co. V. Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. "It is, however, contended that the stat- utes of Kansas fulfill the rule by the con- struction put upon them by the supreme court of the state, and the case is there- fore brought, it is further contended, within the rule of Vicksburg v. Vicksburg Waterworks Co., 206 U. S. 496, 51 L. Ed. 1155, 27 S. Ct. 762. The Kansas cases re- lied on are Eureka Light & Ice Co. v. Eu- reka, 5 Kan. App. 669, 48 Pac. 935; State V. Topeka, 68 Kan. 177, 74 Pac. 647; Chcr- ryvale Water Co. v. Cherryvale, 65 Kan. 219, 69 Pac. 176. In those cases the court did say, in determining what duties were imposed or powers conferred upon the city, that the statute should be liberally construed to effectuate the general pur- pose of the legislature, but the powers under consideration were ditiferent from the powers herein involved, otherwise those cases would not be reconcilable with Paine v. Spratley, 5 Kan. 545, and Cofifey- ville Min. & Gas Co. v. Citizens' Natural Gas & Min. Co., 55 Kan. 178, 40 Pac. 326. In Plaine v. Spratley the general princi- ples respecting the power of municipal corporations were said to be those which we have expressed. In Coffeyville Min. & Gas Co. V. Citizens' Natural Gas & Min. Co., one of the companies, claiining an exclusive right, sought to test the validity of two city ordinances, granting the other the use of the streets, and to restrict it from using the privileges gt anted. For this purpose the court said the plaintifif company clearly had no standing in court, because the city authorities alone were charged with the duty of preventing en- croachment on the streets, and they, alone, could test the validity of the ordinance. The court said further: 'The city did not, in terms, attempt to give the plaintifif company a right to the exclusive use of the streets and alleys for the purpose of laying its pipes. If it had attempted to do so it could not, for want of power.' " Water, etc.. Co. v. Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. "The conclusion from these cases is re- inforced by a change in the statutes con- ferring power upon cities of the state. Section 65, supra, was § 30 of the statutes of 1868, and as such gave to a city the power to make the contracts therein ex- pressed, and give 'the exclusive privilege of furnishing gas to light the streets, lanes, and alleys of said city for any length of time, not exceeding twenty-one years.' This provision Was repeated in § 59 of the statutes of 1872. But in 1885 that section was amended, so as to omit the words 'the exclusive privilege.' Statutes 1885, p. 147, § 7. And as thus amended it was re-en- acted in 1901. Statutes 1901, § 1000." Water, etc., Co. v. Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135. 586-92a. Minneapolis v. Minneapolis St. R. Co., 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. See ante, CORPORATIONS, p. 381. 900 \'ol. \'III. MUNICIPAL CORPORATIONS. 587-588 2. Contracts Concerning or Restricting Governmental Functions or Powers — a. In General — The surrender by a municipality, by contract, of a power of government, though in certain well-defined cases it may be made by legislative authority, is a very grave act, and the surrender itself, as well as the authority to make it, must be closely scrutinized. No other body than the supreme legislature (the legislature of the state) has the authority to make such a surrender, unless the authority is clearly delegated to it by the supreme legislature. The general powers of a municipality or of any other political subdivision of the state are not sufficient. Specific authority for that purpose is required. This proposition is sustained by all the decisions of the supreme court of the United States. ^^a b. Contracts Abridging Pozcer to Fix Rates. — A state may authorize one of its municipal corporations to establish, by an inviolable contract, the rates to be charged by a public service corporation (or natural person) for a definite term, not grossly unreasonable in point of time, and the effect of such a contract is to suspend, during the life of the contract, the governmental power of fixing and regulating the rates. ^'^'' 587-95a. Home Tel., etc., Co. v. Los An- geles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. 588-96a. Home Tel., etc., Co. v. Los An- geles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50, following Detroit v. Detroit, etc., St. R. Co., 184 U. S. 368, 382, 46 L. Ed. 592, 22 S. Ct. 410, and Vicksburg v. Vicksburg Waterworks Co., 206 U. S. 496, 508, 51 L. Ed. 1155, 27 S. Ct. 762. "But for the very reason that such a contract has the effect of extinguishing pro tanto an undoubted power of govern- ment, both its existence and the author- ity to make it must clearly and unmistak- ably appear, and all doubts must be re- solved in favor of the continuance of the power. Providence Bank v. Billings, 4 Pet. 514, 561, 7 L. Ed. 939; Railroad Com- mission Cases, 116 U. S. 307, 325, 29 L. Ed. 636, 6 S. Ct. 334, 388, 3191; Vicksburg, etc., R. Co. V. Dennis, 116 U. S. 665, 29 L. Ed. 770, 6 S. Ct. 625; Freeport Water Co. v. Freeport, 180 U. S. 587, 611, 45 L. Ed. 679, 21 S. Ct. 493; Stanislaus County v. San Joaquin, etc., Irrig. Co., 192 U. S. 201, 211, 48 L. Ed. 406, 24 S. Ct. 241; Metropolitan St. R. Co. V. New York State Board, 199 U. S. 1, 50 L. Ed. 65, 25 S. Ct. 705. And see Water, etc., Co. z'. Hutchinson, 207 U. S. 385, 52 L. Ed. 257, 28 S. Ct. 135." Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176. 29 S. Ct. 50. "It is obvious that no case, unless it is identical in its facts, can serve as a con- trolling precedent for another, for differ- ences, slight in themselves, may, through their relation with other facts, turn the balance one wav or the other. Illustra- tions of the truth of this may be found in the cases of Freeport Water Co. v. Freeport, 180 U. S. 587, 45 L. Ed. 679, 21 S. Ct. 493; Rogers Park Water Co. v. Fer- gus, 180 U. S. 624, 45 L. Ed. 702, 21 S. Ct. 490, and Knoxville Water Co. i\ Knox- ville, 189 U. S. 434, 47 L. Ed. 887, 23 S. Ct. 531, where no authorized contract was found, as contrasted with Detroit v. De- troit, etc., St. R. Co., 184 U. S. 368. 46 L. Ed. 592, 22 S. Ct. 410, and Cleveland v. Cleveland, etc., R. Co., 194 U. S. 517, 48 L. Ed. 1102, 24 S. Ct. 756, where a con- trary conclusion was reached." Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. "The decisions of this court * * * where a contract of this kind was found and en- forced, all show immistakably legislative authority to enter into the contract. In Los Angeles v. Los Angeles, etc., Water Co., 177 U. S. 568, 44 L. Ed. 886, 20 S. Ct. 736, the contract was in specific terms ratified and confirmed by the legislature. In Detroit v. Detroit, etc., St. R. Co., 184 U. S. 368, 46 L. Ed. 592, 22 S. Ct. 410, the contract was made in obedience to an act of the legislature that the rates should be "estalilished liy agreement between said company and the corporate authorities.' The opinion of the court, after saying (p. 382), 'it may be conceded that clear au- thority from the legislature is needed to enable the city to make a contract or agreement like the ordinances in ques- tion, including rates of fare," pointed out (p. 386) that 'it was made matter of agreement by the express command of the legislature.'" Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. "In Cleveland ;■. Cleveland, etc.. R. Co.. 194 U. S. 517, 48 L. Ed. 1102, 24 S. Ct. 756, the legislative authority conferred upon the municipality was described in the opinion of the court (p. 534) as 'com.- prehensive power to contract with street railway companies in respect to the terms and conditions upon which such roads might be constructed, operated, extended, and consolidjjted.' In Cleveland v. Cleve- land Elect. R. Co., 201 U. S. 529, 50 L. Ed. 854, 26 S. Ct. 513, precisely the same au- 901 595-597 MUXICIPAL CORPORATIOXS. Vol. VIII. 4. CoxTRACTs Creating Indebtedness — c. Source of Payment. — Debt of City or Charg-e on Particular Fund. — A claim under a contract to supply coal to a municipality for use in operating its waterworks system, apparently' entered into upon tlie general credit of the city, does not constitute a charge upon the property and funds held in trust by the city to be devoted to the establishment and maintenance of such system. ^^^ A debt incurred for coal to be used in a municipal waterworks system is a municipal obligation, although, the municipality holds property and funds in trust to be devoted to the establish- ment and maintenance of such system. ^'^'^ 6. Contract zvith Judgment Creditor as to Order of Payment. — A munici- pality authorized to levy an annual tax to create a judgment fund, may make a valid agreement with its judgment creditors to pay the judgments against it out of such fund, in the order of their rendition. ^^^ VII. Municipal Property. A. Acquisition and Title — 1. In General. — See note 38. 3. Property Acol-iraulE and Purposes oe Acquisition — b. Private Prop- erty Xot of a Governmental Nature.^ — Alunicipal corporations are sometimes au- thorized to hold and do hold property for the same purposes that property is held by private corporations or individuals. The distinction between property owned by municipal corporations in their public and governmental capacities and that" owned by them in their private capacities, though difificult to define, has been approved by many of the state courts. As to such property a munici- pality may be entitled to constitutional protection.'*"'' ihority appeared. In Vicksburg z\ Vicks- burg Waterworks Co., 206 U. S. 496, 51 L. Ed. 1155. 27 S. Ct. 762, the court said (p. 508) : The grant of legislative power upon its face is unrestricted, and au- thorizes the city "to provide for the erec- tion and maintenances of a sj^stem of waterworks to supply said city with water, and to that end to contract with a party or parties who shall build and operate waterworks."" ' Moreover, in this case the construction of the . supreme court of ]Mississippi of its own statutes was followed.'" Home Tel., etc.. Co. z'. Los Angeles. 211 U. S. 265. 53 L. Ed. 176. 29 S. Ct. 50. "On the other hand, it was held in Freeport Water Co. r. Freeport. 180 U. S. 587, 45 L. Ed. 679. 21 S. Ct. 493. that two acts of the legislature, passed on suc- cessive days, authorizing municipalities to 'contract for a supply of water for pub- lic use for a period not exceeding thirty years," and to authorize private persons to construct waterworks 'and maintain the same at such rates as may be fixed by ordinance, and for a period not exceeding thirty years,' did not confer an authority upon the municipality to contract that the water company should be exempt from the exercise of the governmental power to regulate rates. In this case, too. the construction of the highest court of the state was followed. See Rogers Park Water Co. v. Fergus. 180 U. S. 624. 45 L. Ed. 702, 21 S. Ct. 490. All these cases agree that the legislative authority to the municipality to make the contract must clearly and unmistakably appear."' Home Tel., etc.. Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176. 29 S. Ct. 50. 595-28a. Vilas r. Manila, 220 U. S. 345. 55 L. Ed. 491. 31 S. Ct. 416. 595-28b. Vilas z: Manila. 220 U. S. 345. 55 L. Ed. 491. 31 S. Ct. 416. "The designation of the city in the pe- tition as trustee may be regarded as de- scriptive. The debt having been incurred by the city, it must be regarded as a city liability. Taylor z'.. Davis, 110 U. S. 330, 336. 28 L. Ed. 163. 4 S. Ct. 147.'" Vilas v. Manila. 220 U. S. 345. 55 L. Ed. 491, 31 S. Ct. 416. 596-35a. Beadles v. Smyser, 209 U. S. 393. 52 L. Ed. 849. 28 S. Ct. 522. so holding under 1 Wilson's Okla. Stat. 1903, § 466. 596-38. Power to acquire, hold and manage. — For the purpose of properly and efficiently executing the governmen- tal power entrusted to them, municipal corporations usually are given the power lo acquire, hold, and manage personal and real propertv. Hunter z\ Pittsburgh, 207 U. S. 161. 52' L. Ed. 151. 28 S. Ct. 40. 597-46a. Hunter v. Pittsburgh. 207 U. S. 161. 52 L. Ed. 151, 28 S. Ct. 40. See post. "Legislative Control." VH. E. A recital of facts in an exception to show how the taxes of the citizens of Allegheny would be increased by annexa- tion to Pittsburg, in connection with which it is alleged that while Pittsburg intends to spend large sums of money in the purchase of the water plant of a 902 Vol. VIII. MUXICIPAL CORPORA TIONS. 600-601 D. Liability of Property for Debts— 1. Ix Gexer.\l.— See note 70. E. Legislative Control— 1. Ix Gexeral.— The absolute power of the state over the property of municipal corporations does not extend beyond the prop- erty held and used for governmental purposes. Such corporations are some- times authorized to hold and do hold property for the same purposes that property is held by private corporations or individuals. The distinction be- tween property owned by municipal corporations in their public and govern- mental capacity and that owned by them in their private capacity, though diffi- cult to define, has been approved by many of the states. As to the latter class of property, the legislature is not omnipotent. ■''^*^ private company and for the constriiction of an electric light plant, Allegheny '"has improved its streets, established its own system of electric lighting, and estab- lished a satisfactory water supply," falls far short of a statement that the city of Allegheny holds any property in its priv- ate and proprietary capacity. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. An allegation that the taxpayers were deprived of their property without due process of law because of the increased taxation which would result from the annexation of Allegheny to Pittsburg is not an allegation that Allegheny had been deprived of its property without due process of law. Nor is the situation varied by the fact that, in the superior court, Allegheny was permitted to inter- vene. The city made no new allegations and raised no new questions, but was content to rest upon the record as it was made up. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. 600-70. "There is some difference of view in the opinion of the courts upon the subject of executions against mu- nicipalities, and in some of them it is held that property of a municipality may be reached on execution which is held for profit, and not charged with any pub- lic trust or use. It was held in this court that the public property of a municipal corporation can not be seized upon ex- ecution. Klein v. New Orleans, 99 U. S. 149, 25 L. Ed. 430." Beadles v. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522. "Judge Dillon, in his work on Mu- nicioal Corporations, 4th Ed., vol. 2, § 576. notices the differences of ruling on the subject, and states as his own conclusion: 'On principle, in the absence of statuable provision, or legislative policy in the par- ticular state, it would seem to be a sound view to hold that the right to contract and the power to be sued give to the creditor a right to recover judgment; that judgment should be enforceable by execution against the strictly private property of the corporation, Init not against any property owned or used by the corporation for public purposes, such as public buildings, hospitals, and ceme- teries, fire engines and apparatus, water- works, and the like; and that judgments should not be deemed liens upon real property except when it may be taken in execution.' " Beadles v. Smyser, 209 U. S. 393. 52 L. Ed. 849. 28 S. Ct. 522. 601-80a. Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. "If the distinction is recognized it sug- gests the question whether property of a municipal corporation owned in its priv- ate and proprietary capacity may be taken from it against its will and without coin- pensation. Mr. Dillon says truly that the question has never arisen directly for ad- judication in this court. But it and the distinction upon which it is based have several times been noticed. Tippecanoe County v. Lucas, 93 U. S. 108, 115, 23 L. Ed. 822; Meriweather z\ Garrett, 102 U. S. 472, 530, 26 L. Ed. 197; Essex, etc.. Road Board v. Skinkle, 140 U. S. 334, 342, 35 L. Ed. 446, 11 S. Ct. 790; New Orleans T'. Xew Orleans Waterworks Co., 142 U. S. 79, 91, 35 L. Ed. 943, 12 S. Ct. 142; Cov- ington V. Kentuckv, 173 U. S. 231, 240, 43 L. Ed. 679, 19 S. Ct. 383; Worcester v. Worcester, etc.. St. R. Co., 196 U. S. 539. 551. 49 L. Ed. 591, 25 S. Ct. 327; Graham r. Folsom. 200 U. S. 248, 50 L. Ed. 464, 26 S. Ct. 245." Hunter r. Pittsburg, 207 U. S. ir;i. 52 L. Ed. 151, 28 S. Ct. 40. Effect of cession of territory. — Public property belonging to the city of Manila as a inunicipal corporation can not be regarded as having passed to the United States under the cession by Spain of the Philippine Islands for a cash considera- tion, under the treatj^ of Paris of Decem- l>er 10, 1898, of all "buildings, wharves, barracks, forts, structures, public high- ways, and other immovable property which, in conformitj' with law, belong to the public domain, and as such belong to the crown of Spain," especiallj^ in view of the further stipulation protecting and safeguarding the property and property rights of municipal corporations precisely 3S were those of individuals. Vilas v. Manila, 220 U. S. 345, 55 L. Ed. 491, 31 S. Ct. 416. 903 602-612 MUNICIPAL CORPORATIONS. Vol. VIII. VIII. Municipal Torts. A. In General. — See note 88. K. Mob Violence. — See ante, Constitutional Law, p. 264; Due Proc- ess Of Law, p. 475. And see ante, "In General," V, L, 17, a. IX. Governing Bodies, Administrative Boards and Officers and Agents. 0. Municipal Officers and Agents — 8. Termination of Oeeice — Hold- ing Over. — Extension of Term. — The legislature may extend the terms of the members of a city council. *5*^^ X. Legislative Control. A. In General. — Speaking generally, the' regulation of municipal corpora- tions is a matter peculiarly within the domain of state control.^^'^ E. Powers.— See ante, "Legislative Control," VII, E. F. Officers and Agents. — See ante, "Termination of Office — Holding Over," IX, C, 8. 1. Power of Taxation and Revenue — 1. In General. — See note 70. 602-88. Municipal torts. — "The policy of imposing liability (for torts) upon a civil subdivision of government exercis- ing delegated police power is familiar to every student of the common law^. We find it recognized in the beginning of the police system of Anglo-Saxon people." Chicago V. Sturges, 222 U. S. 313, 56 L. Ed. 215, 32 S. Ct. 92. 611-60a. In re City of Pittsburg, 217 Pa. 222, 66 Atl. 34S, judgment affirmed in Hunter v. Pittsburg, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. Act February 7, 1906 (P. L. 12, § 10), extending the term of councilmen in the city of Allegheny on its consolidation with the city of Pittsburg, is not in viola- tion of Const., art. 3, § 13, as extending the term of a public officer. In re City of Pittsburg, 66 A. 348. 217 Pa. 227; Ap- peal of Hunter, Id. Judgment affirmed in Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. 611-65a. Braxton County Court v. State Tax Comm'rs. 208 U. S. 192. .52 L. Ed. 450, 28 S. Ct. 275. "The number, nature, and duration of the powers conferred upon these corpora- tions and the territory over which they shall be exercised rests in the absolute discretion of the state. Neither their charters, nor any law conferring govern- mental powers, or vesting in them prop- erty to be used for governmental pur- poses, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the state within the mean- ing of the federal constitution. The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, imite the whole or a part of it with an- other municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citi- zens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the constitution of the United States. Al- though the inhabitants and property own- ers may, by such changes, suffer incon- venience, and their property may be les- sened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the federal constitu- tion which protects them froin these in- jurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it." Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40. 612-70. The taxing body, the taxing dis- trict, and the limits of taxation are de- terminable by the legislature of the state. Kelly V. Pittsburgh, 104 U. S. 78, 26 L. Ed. 658; Forsyth v. Hammond, 166 U. S. 506, 41 L. Ed. 1095, 17 S. Ct. 665, and cases cited in the opinion; Williams v. Eggleston, 170 U. S. 304, 310, 42 L. Ed. 1047, 18 S. Ct. 617; 1 Dill. Mun. Corp. 4th Ed., p. 52, and following. True, the legis- lature may sometimes, by restrictive legis- lation in respect to taxes, seek to pre- vent the payment by a municipality of its contract obligations, and in such a case the courts will enforce the protective clauses of the federal constitution against any state legislation impairing the obli- gation of a contract. Braxton County Court V. State Tax Comm'rs. 208 U. S. 192, 52 L. Ed. 450, 28 S. Ct. 275. See ante, "Taxation," IV, C, 3, c, (6). 904 Vol. VIII. MUNICIPAL, ETC., AID. 615 XIII. Ratification, Estoppel and Laches. B. Estoppel. — The principles of right and justice, upon which the doc- trine of estoppel in pais rests, are applicable to municipal corporations. Any positive acts (infra vires) by municipal officers which may have induced the action of the adverse party, and where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had done, will work an estoppel. ^^^ MUNICIPAL, COUNTY, STATE AND FEDERAL AID.— See the title MuNiciPAi., County, State and Federal Aid, vol. 8, p. 618, and references there given. In addition, see ante. Impairment of Obligation of Contracts, p. 624. As to municipal aid bonds in hands of subsequent holder, see post, Municipal, County, State and Federal Securities. 615-91a. Beadles v. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522, quoting from Dillon on Municipal Corporations, 4th Ed., Note E, § 417. Dormancy of judgment. — A municipality can not assert the dormancy, under 2 Wilson's Okla. Stat. 1903, § 4635, of cer- tain judgments against it for failure to issue execution thereon within five years, where, during most of that period, the municipality was carrying out its con- tract arrangement with its judgment creditors to pay such judgments in the order of their rendition, out of the judg- ment fvmd, the effect of which was to prevent the judgment creditors from tak- ing such steps as the law permitted to collect their judgments by execution or mandamus. Beadles v. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522. "We fail to 'see any valid reason why the municipality might not enter into this arrangement. It was permitted by law to make an annual levy of 5 mills on the dollar. 1 Wilson's Rev. & Anno. Stat. 1903, § 466. If the judgment creditors and the mtmicipality saw fit to make an arrangement by which the amount of this annual levy might be disturljed by the consent of the creditors among them in accordance with the priority of their judgments, we perceive no reason why this may not be legally done. The effect of this arrangement was to prevent the judgment creditor from taking such steps as the law permitted to collect his judg- ment, and, upon principles of common right and justice, it would not do to per- mit the city to carry out such an arrange- ment during nearly all the five years' period, and then meet its obligation by a plea of the statute of limitations upon the ground that the judgments had be- come dormant, while both parties were recognizing their binding obligation and doing all that the law permitted to effect their satisfaction, and had entered into a contract which prevented the judgment creditors from taking steps to avail them- selves of their right to collect their judg- ments by execution or by writ of mandamus." Beadles v. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522. "The principles of natural justice and fair dealing are alike applicable to mu- nicipal corporations as to individuals, and to permit the city to escape the payment of judgments whose validity is not other- wise questioned, for failure to issue ex- ecution or sue out a writ of mandamus during the time when the action of the city officers was such as to prevent the exercise of the right, would be to per- mit the action of the representatives of the city, who have had the benefit of the contract during the time both parties were observing its obligations, to work a gross injustice upon the creditors hold- ing valid judgments against the nm- nicipality." Beadles v. Smyser, 209 U. S. 393, 52 L. Ed. 849, 28 S. Ct. 522. 905 669 MUNICIPAL, ETC., SECURITIES. Vol. VIII. MUNICIPAL, COUNTY, STATE AND FEDERAL SECURITIES. IV. Municipal, State and Territorial Bonds, S)06. F. Conditions Precedent to Issuance, 906. N. Payment, Redemption and Discharge, 907. 7. Funding and Refunding, 907. p. Negotiation and Transfer, 907. 2. Bona Fide Holders, 907. a. Who Are Bona Fide Holders, 907. (3) Notice, 907. (c) Constructive or Implied Notice. 907. aa. Authority to Issue, 907. (bb) Limitation of Indebtedness, 907. bb. Pending Suit, 907. cc. Matters of Record, 907. dd. Matters Apparent on Face of Bonds, 907. (bb) Recitals, 907. (5) Presumption That Holders Are Bona Fide Purchas- ers, 907. b. Rights of Bona Fide Holders, 908. (24) Bonds Issued without Authority, 908. (a) In General, 908. (26) Presumptions and Burden of Proof, 908. (a) Authority to Issue. bb. Performance of Conditions Precedent and Requisites to Validity, 908. (bb) Performance of Conditions Imposed by A'ote of Electors, 908. V. Operation and Effect of Recitals, 908. 5. Recitals as to Compliance with Conditions Precedent, 908. b; Compliance with Statute under Which Issued, 908. (1) Doctrine Generally, 908. CROSS REFERENCES. See the title Municipal, County, State; and Fe^otiral Securities, vol. 8, p. 650, and references there given. As to mandamus to enforce judgment on municipal, county, state and federal bonds, see ante. Mandamus, p. 838. IV. Municipal, State and Territorial Bonds. F. Conditions Precedent to Issuance. — The provisions of a vote au- thorizing an issue of county bonds may explicitly impose conditions precedent to the lawful issue of the bonds.'^-'' But it is not conclusive that the obligation imposed is called a condition. It frequently has been the case that the word 669-72a. Green County z'. Quinlan, :m a prior subscription to another railway U. S. 582, 53 L. Ed. 335, 29 S. Ct. 102. company, is a condition precedent to the Exoneration from prior subscriotion to lawful issue of the bonds. Judgment (C. railroad. — A condition imposed l)y a vote C. A. 1907). Quinhm v. Green Countv, 157 authorizing a county bond issue in aid F. 33, modified. Green County v. Quin- of railroads, they shall not be issued Ian, 211 U. S. 582, 53 L. Ed. 335, 29 S. Ct. until the county shall be exonerated from 162. 906 Vol. MIT. MUXICIPAL, ETC., SECURITIES. 669-695 "condition" has been used in written instrnments in a looser and broader sense than the law attaches to it."-'' N. Payment, Redemption and Discharge — 7. Funding and Refund- ing.— Bonds Included within Act, 1896 — Loan Commissioner of Arizona. — See notes 78-81. Stare Decisis. — Decisions affirming the validity of legislation nnder which territorial bonds are issued in exchange for county bonds, and which provides for the payment of the principal and interest thereof by the county, even if not binding on such county, which was not nominally a party, should be upheld as against it on the doctrine of stare decisis after such bonds have gone into the channels of trade. '^-^ Q. Negotiation and Transfer — 2. Bona Fide Holders — a. Ulio Are Bona Fide Holders^{3) Xofice — (c) Constntctizr or Implied Xotice — aa. Authority to Issue — (bb) Limitation of Indebtedness. — See note 15. bb. Pending Suit. — See note 17. cc. Matters of Record. — Order of Court and Numbering of Bonds. — See ante, "Limitation of Indebtedness," IV, Q, 2, a, (3), (c), aa, (bb). dd. Matters Apparent on Face of Bonds — (bb) Recitals. — See ante, "Limita- tion of Indebtedness," IV, Q, 2, a, (3), (c), aa, (bb). (5) Presumption That Holders Are Bona Fide Purchasers. — The holder of negotiable county bonds is presumed to have obtained them underdue or before 669-72b. Green County v. QninHn, 211 U. S. 582, 53 L. Ed. 335, 29 S. Ct. 162, modifying Quinlan v. Green County. 157 Fed. 33. Provisions in a vote authorizing a county bond issue in payment of a sub- scription for railroad stock, on condition that the railroad construct through the county and within a mile of a named town and expend the amount subscribed within the county! did not impose a con- dition on the lawful issue of the bonds or on the obligation of county thereon, where the vote makes exoneration from a prior subscription to stock of another railroad company a condition precedent to the issue of the bonds. Green County V. Quinlan, 211 U. S. 582, 53 L. Ed. 335, 29 S. Ct. 162. ''A consideration of the vote of the ■county leaves no doubt that that part of it which prescribed the nature of the railioad construction was not a condition. It would have been easy to have post- poned the obligation to pay the bonds rmtil the construction had been com- pleted, as desired bj' the county. Such a provision as that in Provident Life, etc., •Co. V. Mercer County, 170 U. S. 593, 594, 42 L. Ed. 1156, 18 S. Ct. 788, would have been enough." Green County t. Quin- lan, 211 U. S. 582, 53 L. Ed. 335, 29 S. Ct. 162. 686-78. Vail v. Arizona, 207 U. S. 201, 52 L. Ed. 169, 28 S. Ct. 107. 686-81. "In Murphy v. Utter, 180 U. S. 95, 46 L. Ed. 1070, 22 S. Ct. 776. * * * it was held that neither a change in the personnel of the loan commission nor an act of the legislature of .\rizona, abolish- ing the commission, put an end to the duty of refunding." Vail v. Arizona, 207 VJ. S ?0l, 5'^ L. Ed. 169, 28 S. C*^ in-^. 686-82a. Vail v. .Arizona, 207 U. S. 201, 52 L. Ed. 169. 28 S. Ct. 107. See post, STARE DECISIS. 694-15. Limitation of indebtedness. — A purchaser of county bonds, even if bound to examine the order of the county com- missioners' court referred to therein as authorizing the issue, is not charged with the knowledge that such court exceeded its power in issuing the bonds purchased by him because the numbers which such bonds bear show that the amount au- thorized by the court's order had al- ready been issued, where the statutes re- cited in the bonds do not name any specific amount beyond which the court can not go, but m.erely forbid an issue oi a larger number than a specified annual tax will liquidate in ten years, and there is nothing in the court's order which requires the bonds to lie numbered con- secutively from one upward. Presidio County V. Noel-Young Bond, etc., Co., 212 U. S. 58, 53 L. Ed. 402, 29 S. Ct. 237. 695-17. Pending suit on coupons. — One who purchases negotiable county bonds in good faith and for value after a suit on the interest coupons attached to such bonds has been brought, not being himself a party or having notice of that suit, will not be concluded by the judg- ment invalidating the coupons, although the issue in that suit as to the validity of the coupons may have incidentally in- volved an inquiry as to the validity of the bonds to which they were attached. Presidio County v. Noel-Young Bond, etc., Co., 212 U. S. 58. 53 L. Ed. 402, 29 S. Ct. 237. 907 700-714 MUNICIPAL, ETC., SECURITIES. ^'ol. viiL maturity, in good faith, for a valuable consideration, and without notice of any circumstances impeaching their validity. ^^^ b. Rights of Bona Fide Holders — (24) Bonds Issued zinthont Authority — (a) In General. — See note 76. (26) Presumptions and Burden of Proof — (a) Authority to Issue — bb. Per- formance of Conditions Precedent and Requisites to Validity — (bb) Perform- ance of Conditions Imposed by Vote of Electors. — See note 91. V. Operation and Effect of Recitals. 5. Recitals as to Coaipuaxce; with Coxditioxs Precedext — b. Com- pliance zvith Statute under Which Issued — (1) Doctrine Generally.' — When a county, acting by the commissioner's court or the proper officers, issued bonds attested by the seal of the court and the signatures of its officers, and reciting that they were issued under the order of the court, in virtue of the statute named, and were registered^such recitals fairly importing a compliance, in all substantial respects, with the statute giving authority to issue bonds — a bona fide purchaser was entitled to accept the recitals as stating the truth, and the county can not, as against such purchaser, allege the contrary. It will not be heard to say that the bonds were in excess of the amount authorized, or that they were not issued for the purposes contemplated by the statutes referred to. These principles have become firmly established, 700-31a. Presidio County v. Noel- Young Bond, etc., Co., 212 U. S. 58, 53 L. Ed. 402, 29 S. Ct. 237. 709-76. "In 1883 an act was passed by the territorial legislature (Ariz. Laws 1883, p. 61), directing Pima county to ex- change its bonds for those of the Arizona Narrow Gauge Railroad Company. The amount of the bonds and the conditions of exchange were specified in the act. One hundred and fifty thousand dollars of bonds were so exchanged. Pima county denied its liabilitj^ on the bonds, refused to pay the interest coupons, and an ac- tion was brought thereon, which finally reached this court. Lewis v. Pima County, 155 U. vS. 54, 39 L. Ed. 67, Iq S. Ct. 22. The act was held to be in viola- tion of the restrictions imposed upon ter- ritorial legislatures by U. S. Rev. Stat., § 1889, as amended by the act of congress of June 8, 1878. chap. 168 (20 Stat, at L. 101), and the bonds were adjudged void." Vail V. Arizona, 207 U. S. 201, "52 L. Ed. 169. 28 S. Ct. 107. 714-91. A presumption, though not a conclusive one. that there has been a compliance with the condition precedent to the issuance of county bonds in pay- ment of a subscription to the capital stock of a railway companj^, that the county should first be exonerated from a prior subscription to the stock of another railroad company, arises from the mere fact of subscription and issuance by the officer charged with the duty of issuing the bonds upon the performance of the condition precedent. Green County v. Quinlan, 211 U. S. 582, 53 L. Ed. 335, 29 S. Ct. 162. "As these bonds contained no recital importing that the conditions had been performed, it was open to the county to show, even against a purchaser for value, before maturity, without notice, that the conditions had not been performed. But the issue of bonds in payment of a sub- scription to railroad stock by an officer charged with the duty of ascertaining whether the conditions indispensable to the lawful issue had been fulfilled raises a presumption of their fulfillment prior to the issue. A lawful holder of the bonds is entitled to rely upon this presumption, although he incurs the danger that the presumption will be overcome by evi- dence. If he wishes absolute securitj' in this respect, he must insist upon a recital. This much was determined by the de- cision of tliis court when the case was here before. Quinlan v. Green County, 205 U. S. 410, 51 L. Ed. 860, 27 S. Ct. 505." Green County v. Quinlan, 211 U. S. 582, 53 L. Ed. 335, 29 S. Ct. 162. The case of Quinlan v. Green County, 205 U. S. 410, 51 L. Ed. 860, 27 S. Ct. 505, did not decide that there was a presump- tion of performance arising out of the length of time during which no claim was made in respect of the Elizabethtown & Tennessee Railroad subscription, but that there was a presumption of performance before tlie issue of the bonds. When we come to look at the facts fotind by the circuit court there is nothing to rebut this presumption." Green County v. Quin- lan, 211 U. vS. 582, 53 L. Ed. 335, 29 S. Ct. 162. 908 Vol. A'lII. MUXICIPAL, ETC., SECURITIES. 751 as will be seen by an examination of the adjudged cases. ^-^^ 751-94a. Presidio County :•. Xoel-Young Bond, etc., Co., 212 U. S. 58, 53 L. Ed. 402, 29 S. Ct. 237. Recitals in county bonds of compliance with statutes authorizing their issuance for courthouse and jail purposes bj' the commissioners' court relieve a purchaser from the necessity of examining the or- der of such court referred to in the bonds as authorizing the issue, and estop the county to assert, as against a bona fide holder, that his bonds were issued in ex- cess of the authorized amount, or were not issued for the purposes contemplated by the statutes. Presidio County v. Xoel- Young Bond, etc., Co.. 212 U. S. 58, 53 L. Ed. 402. 29 S. Ct. 237. Evansville z'. Dennett, 161 U. S. 434, 40 L. Ed. 760, 16 S. Ct. 613, was an action involving the validity of two series of bonds, issued by the city of Evansville, Indiana, for subscription to certain rail- roads. '"Each bond of the tv.'o series con- tained recitals to the effect that the bonds were issued in pursuance of cer- tain legislative enactments, and by virtue of certain resolutions and ordinances passed by the city council. If the bonds had not contained any recitals importing a performance of such conditions before the power to subscribe was exercised, then it would have been open to the city to shov,', even as against a bona fide pur- chaser, that the bonds were issued in dis- regard of the statute, and, therefore, did not impose any legal obligation upon it. Buchanan v. Litchfield, 102 U. S. 278, 26 L. Ed. 138; School Dist. v. Stone, 106 U. S. 183. 187. 27 L. Ed. 90, 91, 1 S. Ct. 84." Presidio County v. Xoel-Young Bond, •etc., Co., 212 U. S. 58, 53 L. Ed. 402, 29 S. Ct. 237. In Evansville v. Dennett, 161 U. S. 434. 40 L. Ed. 760, 16 S. Ct. 613, "the court ex- pressed its approval of the decision in Van Hostrup v. Madison, 1 Wall. 291, 297, 17 L. Ed. 538, a suit on municipal bonds, in which Mr. Justice X^elson, speaking for the court, said: 'Another objection taken is, that the proviso re- quiring a petition • of two-thirds of the citizens, who were freeholders of the city, was not complied with. As we have seen, the bonds signed bj' the mayor and clerk of the city recite on the face of them that they v/ere issued by virtue of an or- dinance of the common council of the city, passed September 2, 1852. This con- cludes the city as to any irregularities that may have existed in carrying into execu- tion the power granted to subscribe the stock and issue the bonds, as has been repeatedly held by this court.' *' Presidio County V. Xoel-Young Bond, etc., Co., 212 U. S. 58, 53 L. Ed. 402, 29 S. Ct. 237. "But the bonds issued on account of subscription to the stock of the Evans- ville. Henderson & X'ashville Railroad Company recite the subscription was 'made in pursuance of an act of the legis- lature and ordinances of the city council passed in pursuance thereof.' This im- ports not only compliance with the act of the legislature, but that the ordinances of the city council were in conformity with the statute. It is as if the city had declared, in terms, that all had been done that was required to be done in order that the power given might be exercised. * * * As therefore the recitals in the bonds import coinpliance with the city's charter, purchasers for value having no notice of the nonperformance of the con- ditions precedent were not bound to go behind the statute conferring the power to subscribe, and to ascertain, by an ex- amination of the ordinances and records of the city council, whether those con- ditions had, in fact, been performed. With stich recitals before them they had the right tc assum.e that the circum- stances existed which authorized the city to exercise the authority given by the legislature. * * * The city having au- thority, under some circumstances, to put these bonds upon the market, and having issued them under the corporate seal of the city, and under the attestation of its highest officer, certifying that they were issued in payment of a subscrii)tion of stock m.ade in pursuance of the city's charter, the principles of justice demand that the bonds, in the hands of bona fide holders for v^ue, should be met accord- ing to their terms, unless some clear, well-settled rule of law stands in the way. Xo such obstacle exists." Presidio County V. X'oel-Young Bond, etc.. Co., 212 U. S. 58, 53 L. Ed. 402, 29 S. Ct. 237. "In Waite v. Santa Cruz. 184 U. S. 302, 320, 46 L. Ed. 552, 22 S. Ct. 327, which was also a suit on muncioal bonds and involved the effect of recitals importing compliance with law, the court referred to and followed Evansville v. Dennett, 161 U. S. 434, 40 L. Ed. 760, 16 S. Ct. 613. It said: 'The city of Santa Cruz had power, under the constitution and laws of California, to refund its outstanding indebtedness, evidenced by bonds and warrants. The nature and extent of such indebtedne.'JS were matters peculiarh' within the knowledge of its constituted authorities. When, therefore, the refund- ing bonds in suit were issued with the recitals therein contained, the city thereby represented that it issued them under and in pursuance of and in conformity with the Act of 1893 and the constitution of the state. As nothing on the face of the bonds suggested that such representa- tions were false, purchasers had the right 909 791 MUTUAL IXSURAXCE. Vol. VIII. MUNICIPAL COURTS.— See ante, Municipal Corporations, p. 895. MUNICIPAL OFFICERS.— See ante, Municipai, Corporations, p. 895. MUNICIPAL ORDINANCES.— See post, Ordinances. MUNICIPAL TAXATION.— See post, Taxation. MURDER.— See ante. Homicide, p. 619. MUTUAL INSURANCE. II. Change of Constitution and By-Laws, 910. III. The Contract of Insurance, 910. B. Premiums and Assessments, 910. 5. Manner of Payment, 910. b. Change from Assessment to Legal Reserve Plan. 910. CROSS REFERENCES. See the title Mutual Insurance, vol. 8, p. 789, and references there given. II. Change of Constitution and By-Laws. See post, "Change from Assessment to Legal Reserve Plan," III, B, 5, b. III. The Contract of Insurance. B. Premiums and Assessments — 5. Manner of Payment — b. Change from Assessment to Legal Reserzr Plan- — Vested rights, privileges, or prop- erty rights of the members of an association insuring lives upon the co-opera- tive plan are not taken without due process of law by the reorganization y cede.") There- OBLIGATION OF CONTRACTS, p. fore the second article says "to them" 624. rather than "to it," just as it says "while In Wright v. Minnesota ]\Iut. Life Ins. the}' (i. e., the Nation) shall exist as a Na- Co., 193 U. S. 657, -18 L. Ed. 832._ 24 S. tion," and it adds to the untechnical "in Ct. 549, "it was held that a law of Min- fee simple" untechnical words of limita- nesota, authorizing an assessment insur- tion of a kind that would indicate the in- ance company to change its business to tent to confine the grant to the Nation, that of insurance upon a regular premium which "successors" would not, and at tht> basis, was not in violation of this pro- same time to imply nothing as to the rules vision of the constitution." Polk v. Mu- for inheritance of tribal rights, as "heirs" tual, etc. Life Assn. 207 U. S. 310. .")2 L. might have seemed to do. It was held to Edf. 222, 28 S. Ct. 65. be a grant to the Nation only, limited in 796-1. Grant to Choctaw Nation. — By point of time to the corporate existence article 2 of the treaty of 1830 it was pro- of the Nation, and did not create a trust vided that "The United States under a in favor of the then existing members of grant specially to be made !)y the presi- the tribe and their descendants. Fleming dent of the United States shall cause to :•. McCurtain, 215 U. S. 56, 58, 54 L. Ed. be conveyed to the Choctaw Nation a 88, 30 S. Ct. 16. See post, TREATIES. 911 799-800 NATURALIZATION. Vol. VIII. courts of a state of naturalization proceedings involving admission to citizen- ship in the United States. ^^a Nature and Mode of Procedure. — While a proceeding for the naturaliza- tion of an alien is, in a certain sense, a judicial proceeding, being conducted in a court of record and made a matter of record therein, yet it is not in any sense an adversary proceeding. It is the alien who applies to be admitted who makes the necessary declaration and adduces the requisite proofs, and who renounces and abjures his foreign allegiance, all as conditions precedent to his admission to citizenship of the United States. He seeks political rights to which he is not entitled except on compliance with the requirements of the act. But he is not required to make the government a party nor to give any notice to its repre- sentatives.^^*^ 5. Certificate: of Naturalization — b. Nature. — See post, "Impeachment and Cancellation of Certificate," IV, C, 5, c, (2). c. Conclitsk'cncss — (1) In General. — A certificate of naturalization is con- clusive on collateral attack. --'^ (2) Impeachment and Cancellation of Certificate. — A certificate of naturali- zation procured from a competent court ex parte in the ordinary way has no such conclusive effect against the public as prevents its cancellation in an inde- pendent proceeding authorized by congress, on the ground that it was fraudu- lently and illegally procured by perjured testimony.--'' The decision that the judgment of a court of a record in naturalization proceedings was, like every other judgment, complete evidence of its own validity, goes no further than to establish the immunity of such a judgment from collateral attack; and it does not follow that congress may not authorize a direct attack upon certifi- cates of citizenship in an independent proceeding.^^c Certificates Issued Prior to Act Authorizing Impeachment. — Naturali- zation certificates, whether issued prior or subsequent to the enactment of the Act of June 29, 1906, are, by the express provisions of § 15 of that act, made liable to impeachment, where fraudulently and illegally procured. 22^ 799-13a. Jurisdiction of state courts.— closely analogous to a public grant of Holmgren v. United States, 217 U. S. 509, land (Rev. Stat., § 2289, etc., U. S. Comp. 54 L. Ed. 861, 30 S. Ct. 588, affirming 156 Stat. 1901, p. 1388), or of the exclusive Fed. 439, 84 C. C. A. 301. right to make, use, and vend a new and 799-13b. Nature and mode of procedure. useful invention (Rev. Stat., § 4883, etc., — Johannessen v. United States,' 225 U. U. S. Comp. Stat., p. 3381)." Johannessen S. 227, 56 L. Ed. 10G6, 32 S. Ct. 613. v. United Stales, 225 U. S. 227, 56 L. Ed. 800-22a. Conclusiveness. — Johannessen 1066, 32 S. Ct. 613. z>. United States, 225 U. S. 227, 56 L. Ed. "An alien has no moral nor constitu- 1066, 32 S. Ct. 613, explaining Spratt v. tional right to retain tlie privileges of Spratt, 4 Pet. 393, 408, 7 L. Ed. 897, and citizenship if, by false evidence or the likt, referring to Campbell v. Gordon, 6 an miposition has been practiced upon Craiich 176, 3 L- Ed. 190. the court, without which the certificate 800-22b. Impeachment and cancellation, of citizenship could not and would not — Johannessen :■. United States, 225 U. S- have been issued." Johannessen v. United 227, 56 L. Ed. 1066, 32 S. Ct. 613. So held States, 225 U. S. 227, 56 L. Ed. 1066, 32 in respect to the proceedings authorized S. Ct. 613. by the Act of June 29, 1906 (34 Stat, at 800-22c. Attacking judgment. — Johan- L. 596, 601, chap. 3592, U. S. Comp. Stat. nessen v. United States, 225 U. S. 227, 56 Supp. 1909, pp. 97, 485). § 15. L. Ed. 1066, 32 S. Ct. 613, explaining A certificate of naturalization, procured Spratt v. Spratt, 4 Pet. 393, 408, 7 L. Ed. ex parte in the ordinary way, has no con- 897. elusive effect as against the public. Such 800-22d. Certificates issued prior to act a certificate, including the "judgment" authorizing impeachment. — Johannessen't;. upon which it is based, is in its essence United States, 225 U. S. 227, 56 L. Ed. an instrument granting political privi- 1066, 32 S. Ct. 613. leges, and open, like other public grants. Ex post facto laws. — The retrospective to be revoked if and when it shall be features of the provisions of the Act_ of found to have been unlawfully or fraudu- June 29, 1906, § 15, authorizing the im- lently procured. "It is in this respect peachment of naturalization certificates 912 Vol. VIII. NAVAL SERVICE. 800-804 Mode of Procedure.— Whether the judicial review of a certificate of nat- uralization should be conducted in one mode or another is a matter plainly resting in legislative discretion. Section 15 of the Act of Ume 29, 1906 (34 Stat, at L. 601, chap. 3592, U. S. Comp. Stat. Supp. 1909," p. 485), provides for a proceeding in a "court having jurisdiction to naturalize aliens, in the judi- cial district in Vvdiich the naturalized citizen may reside at the time of bringing the suit," upon fair notice to the party holding the certificate of citizenship that is under attack. "No criticism is made of this mode of procedure. ^^^ IX. Offenses against the Naturalization Laws. Congress may constitutionally provide for the punishment of false swearing in naturalization proceedings had in state courts in conformity with the acts of congress establishing a uniform rule of naturalization,-*'""^ and such convic- tion may be had in a federal court.^^'' NATURAL STATE.— See note a. NAVAL OFFICERS.— See ante. Army and Navy, p. 150. NAVAL SERVICE.— See ante. Army and Navy, p. 150. where fraudulently or illegally procured, do not invalidate that section under U. S. Const., art. 1, § 9, prohibiting ex post facto laws. Johannessen z'. United States, 225 U. S. 227, 56 L. Ed. 1066, 32 S. Ct. 613. Exercise of judicial power. — Congress did not unconstitutionally exercise judicial power by enacting the provisions of the Act of June 29, 1906, § 15, under which certificates of naturalization theretofore issued ex parte in the ordinary way may be impeached where fraudulently and illegally procured by perjured testimony. Johannessen z\ United States, 225 U. S. 227. 50 L. Ed. 1060, 32 S. Ct. 013. 800-22e. Mode of procedures. — Johan- nessen V. United States, 225 U. S. 227, 50 L. Ed. 1060, 32 S. Ct. 013. "In United States z'. Norsch, 42 Fed. 417, it was declared that the government could sue in a federal court for the can- cellation of a certificate that had been procured by fraud in a state court, but it was held that the facts set forth in the bill did not make out a sufficient case of fraud. In United States v. Gleason, 78 Fed. 396, 33 C. C. A. 272, 02 U. S. App. 311, 90 Fed. 778, the contrary conclusion was reached upon the main question. These two cases arose prior to the Act of 1900. Since the passage of that act, the district courts have quite generally sustained the action for a cancellation of fraudulent certificates. United States v. Nisbet, 108 Fed. 100.") : United States V. Simon. 170 Fed. 080; United States V. Mansour. 170 Fed. 071; United States z'. Meyer, 170 Fed. 983; United States z: Luria, 184 Fed. 043; United States v. Spohrer, 175 Fed. 440." Johannessen v. United States, 225 U. S. 227, 56 L. Ed. 1066, 32 S. Ct. 613. 804-45a. Punishment of- false swearing. — Holmgren v. United States, 217 U. S. 509, 54 L. Ed. 861, 30 S. Ct. 588, affirming 156 Fed. 439, 84 C. C. A. 301. 804-45b. A conviction can be had in a federal court for false swearing in natu- ralization proceedings in a state court, under Rev. St. U. S., § 5395 (U. S. Comp. St. 1901, p. 3054), making punishable by fine and imprisonment the taking or mak- ing of a false oath or affidavit under or by virtue of any law relating to the natitralization of aliens, or in any pro- ceeding under any such laws. Holmgren V. United States, 217 U. S. 509. 54 L. Ed. 861, 30 S. Ct. 588. 804-a. Pearls in their natural state. — Loose drilled pearls unset and unstrung, however carefully matched or desirable for a necklace, are dutiable at ten per cent ad valorem under the Tariff Act of July 24, 1897, par. 430, as "pearls in their natural state, not strung or set," and are not clas- sifiable by similitude as jewelry, includ- ing "pearls set or strung," dutiable under par. 434 at sixty per cent ad valorem, be- cause at some time, or from time to time previous to importation, such pearls had been strung temporarily for purposes of display. United States v. Citroen, 223 U. S. 407, 50 L. Ed. 480, 32 S. Ct. 239. See post, REVENUE LAWS. 12 U S Enc— 5S 913 NAVIGABLE WATERS. Vol. VIII. NAVIGABLE WATERS. II. Dominion, Sovereignty and Ownership of Navigable Waters, Beds, Shores, etc., 914. B. As between the States and Territories and the United States, 914. 4. Grant of Navigable Waters and Underlying Soils in the States, 914. III. Riparian and Littoral Rights, 917. C. Incidents of Riparian and Littoral Ownership, 917. 3. Right to Construct and Maintain Wharves, Piers, etc., 917. IV. Regulation, Improvement; and Obstruction of Navigable Waters, 918. A. Powers of Congress, 918. 4. Obstruction Not a Common-Law Offense against the United States, 918. 5. Delegation of Power to Improve, Obstruct, or Remove Obstruc- tions, to Heads of Departments, 918. B. Powers of States, 919. 1. States Have Full Control of Their Navigable Waters, Subject to Paramount Control of Congress, 919. 2. Not Every Act of Congress That Operates to Supersede Power of States, 919. F. Proceedings to Abate or Remove Obstructions, 919. 2. Civil Proceedings, 919. b. Jurisdiction; State and Federal Questions, 919. (1) In Proceeding Instituted by Private Persons, 919. V. Navigable Waters as Boundaries, 920. CROSS REFERENCES. See the title Navigable; Waters, vol. 8, p. 807, and references there given. In addition, see ante. Accession, Accretion and Reliction, p. 4; Ad- miralty, p. 10; Boundaries, p. 206; Bridges, p. 211; Collision, p. 243; Constitutional Law, p. 264; Due Process oe Law, p. 475; Fish and Fisheries, p. 583; Interstate and Foreign Commerce, p. 689; post, Police Power; Ships and Shipping; Waters and Watercourses; Wharves and Wharfingers. As to the power of the state to pass and enforce regulations for the protec- tion of the oyster industry in tidal waters, see ante, Constitutional Law, p. 264; Interstate and Foreign Commerce, p. 689. As to the lands lying be- tween the middle of New York Bay and the low-water line on the New Jersey shore, being taxable by New Jersey, see post. Taxation. As to whether the state of Oregon can, by virtue of its concurrent jurisdiction over the Columbia River, make criminal an act which is licensed under the authority of the state of Washington, see ante. Criminal Law, p. 434. As to federal regulation of the commerce in sponges, see ante. Interstate and Foreign Commerce, p 689. II. Dominion, Sovereignty and Ownership of Navigable Waters, Beds, Shores, etc. B. As between the States and Territories and the United States — 4. Grant of Navigable \\'aters and Underlying Soils in the States. — A patent from the United States, describing the land granted as bounded by 914 Vol. VIII. NAVIGABLE WATERS. 820 the St. Mary's River, carries with it the title to small, iinsurveyed islands on the American side of the international bonndary line, where, under the laws of the state, a grant of land bounded by a stream, whether navigable in fact or not, carries with it the bed of the stream to the center of the thread. ■^•"^'^ Conveyance by United States Patent Alone.^— The bed of the river could not be conveyed by the patent of the United States alone, but, if such is the law of the state, the bed will pass to the patentee by the help of that law, unless there is some special reason to the contrary. This view is well established.^^^ Rights below high-water mark do not pass to patentees of the United States, as appurtenant to the uplands conveyed to them.-*^"^' 820-45a. Grant of navigable waters and underlying soils in the states. — United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. Small rocky islands, without apparent value, situated in the St. Mary's river, were not excepted from the transfer to the state by Act June 15, 1836, c. 99,' 5 Stat. 49, 50, admitting Michigan to the Union, of the bed of the stream surround- ing them, because of the provisions of § 4 of that act that no right was con- ferred upon the state "to interfere with the sale by the United States, and imder their authority, of the vacant and unsold lands within the limits of the said state," and of Act June 23, 1836, c. 121, 5 Stat, 59, 60, that the state should "never inter- feie with the primary disposal of the soil within the same by the United States." Decree (1907), 152 F. 25, 81 C. C. A. 221, afifirmed. United States v. Chandler-Dun- bar Water Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. 820-45b. Conveyance by United States patent alone. — United States zj. Chandler- Dunbar Water Power Co., 209 U. S. 447, 52 L. Ed. 881. 28 S. Ct. 579. "If, by the law of Michigan, the bed of the river or strait would pass to a grantee of the upland, we may assume that it passed to the defendant, and we may assume further that the islands also passed. If, as we think, they belonged to the state, they passed along with the bed of the river. If they had belonged to the United States, probably they would have passed as unsurveyed islands and neglected fragments pass." United States V. Chandler-Dunbar Water Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. "The question, then, is narrowed to whether the bed of the strait is held to pass by the laws of Michigan. We are content to assume that the waters are public waters. Propeller Genesee Chief V. Fitzhugh, 12 How. 443, 457, 13 L. Ed. 1058. But, whatever may be the law as to lands under the great lakes (People v. Silberwood, 110 Mich. 103, 32 L. P.. A. 694, 67 N. W. 1087), we believe that the law still is as it was declared to be in Grand Rauids, etc., R. Co. z'. Butler, 159 U. S. 87, 94, 40 L. Ed. 85, 15 S. Ct. 991, that 'a grant of land bounded by a stream, whether navigable in fact or not, carries with it the bed of the stream to the cen- ter of the thread thereof,' and tliat this applies to the Sault Ste. Marie, whatever it be called. The fact that it is a bound- ary has not been held to make a dif- ference. The riparian proprietors upon it own to the center. Ryan z'. Brown, 18 Mich. 196, 100 Am. Dec. 154." United States v. Chandler-Dtmbar Water Power Co., 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. 820-45C. Same. — "If the appellants did not derive the rights contended for by the patents, they have no right to be im- paired, even assuming, as we have as- sumed in this discussion, that the action of the state has proceeded far enougli to be a trespass upon or an impairment of them. But whether such rights passed involves the construction of the acts of congress under which the patents issued, and, necessarily, of the effect of the pat- ents, and presents a federal question, if prior decisions have not defined such rights and removed them from contro- versy. This is contended by appellees, and Shively v. Bowlby. 152 U. S. 1, 38 L. Ed. 331, 14 S. Ct. 548, is cited." McGilvra zf. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. "Appellants attack it, and contend that the facts of Shively z'. Bowlby are so far different from those in the case at bar as to make that case inconclusive of the questions presented in the latter. A de- termination of the scope of Shively v. Bowlby becomes necessary. The con- troversy in that case was between a title by United States patent under the Oregon donation land law, so called, being the act of congress, September 27. 1850 [9 Stat, at L. 496, chap. 76] (and the same law under which the title in the Rressler case is derived), to lands hounded by the Columbia river, and a title derived under the act of the state of Oregon, entitled, 'an act to provide for the sale of tide and overflowed lands on the seashore and coast' to lands below high water mark on that river. The issue, there- fore, was accurately presented between a title under a patent of the United States and one conveyed l)y a state in the exer- 915 820 NAFIGABLE WATERS. Vol. VIII. cise of its dominion over lands below high water mark. The issue in the case at bar is exactly the same. But a distinc- tion is pointed out, and on that distinc- tion appellants' contentions and argu- ments are based. The Shively case was concerned with shore lands within the ebb and flow of the tide. In the case at bar the lands border on navigable v/aters, but not on tidal waters. The Shively case, it is therefore contended, as we have said, is not applicable, for, it is said, that when- ever the 'court, in deciding said cause, used the term "navigable waters" in dis- cussing the case then before it, said term meant tidal waters, for the question of rights upon tidal waters v/as the only question therein presented.' " McGilvra V. Ross, 215 U. S. 70, 5-t L. Ed. 95, 30 S. Ct. 27. '"The argument to sustain the conten- tion is not confined to an pn.nlvsis of the case, but goes beyond, and l)y the cita- tion of many cases seeks to determine the riparian rights of appellants by the com- mon-law test of navigability; to wit, the ebb and flow of the tide. We will not re- view the reasoning by vt^hich this conten- tion is attempted to be supported. It is enough to say that the test of navigability of waters insisted on has had no place in American jurisprudence since the decision in the case. Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 h. Ed. 1058, and is therefore no test of rioarian owner- ship." IMcGilvra v. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. "This is the effect of Shively z\ Bowlby. 152 U. S. 1, 38 L, Ed. 331, 14 S. Ct. 548. The whole doctrine is there displayed, and the court declared that, on accoun*: of the diversity of view entertained of 'the scope and effect of the previous de- cisions of this court unon thp subiect of public and private rights in lands below high water mark of navigable waters,' it appeared 'to be a fit occasion for a full review of those decisions and a con- sideration of other authorities upon the subject.' And the term 'navigable waters.' as there used, meant waters which were navigable in fact." McGilvra r. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27, 31. "The definition was not inadvertent or unnecessary. It was that to which the reasoning conducted and which became the test of the dominion of the national and state governments over shore lands and the rights M'hich thev hpd or co^ld convey. Hence, this conclusion by the court: 'The title and rights of riparian or littoral proprietors in the soil below high water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the constitution.'" McGilvra r. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. "It was observed that the United States, while it held the country as a ter- ritory, havina" all the nowers of national and of municipal government, might have granted for appropriate purposes rights and titles below high water mark. See United States ?•. Winans, 198 U. S. 371, 49 L. Ed. 1089, 25 S. Ct. 662." McGilvra V. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. "But it was said that they had never done so by general laws, but had con- sidered it 'as most in accordance with the interest of the people and with the object for which the territories were acquired of leaving the administration and disposi- tion of the sovereign rights in navigable waters, and in the soil imder them, to the control of the states respectively, when organized and admitted into the Union.' This policy, it was remarked, as 'to navigal)le waters and the soils under them, whether within or above the ebb and flow of the tide,' has been 'constantly acted upon.' And hence it was further said: 'Grants by congress of portions of the public lands within a territory to set- tlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high water mark, and do not impair the title and dominion of the future state when created, but leave the question of the use of the shores by the owners of uplands to the sovereign control of each state, subject only to the rights vested by the constitution in the United States.' The conclusion necessarily follows, as ex- pressed by the court, that the state may dispose of its lands under navigable waters 'free from any easement of the upland proprietor.' " McGilvra v. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. In Kansas v. Colorado, 206 U. S. 46, 93, 51 L. Ed. 956, 27 S. Ct. 655, it was said, as a deduction from many previous cases, including Shively v. Bowlby, 152 U. S. 1, 38 L. Ed. 331, 14 S. Ct. 548, "that each state has full iurisdiction over the lands within its borders, including the beds of streams and other waters." Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. ri24, was quoted from as follovv's: "And since this court, in the case of Propeller Gencst-e Chief V. Fitzhugh, 12 How. 443, 13 L. Ed. 1058, has declared that the Great Lakes and other navigable waters of the coun- try, above as well as below the flow of the tide, are, in the strictest sense, en- titled to the donomination of navigable waters, and amendable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the states by their inherent sovereignty, and the United States has _ wisely ab- stained from extending (if it could ex- tend) its survey and grants bevond the limits of high water." McGilvra i'. Ross, 215 U. S. 70, 54 L. Ed. 95, 30 S. Ct. 27. 916 Vol. Yin. X AVI GABLE WATERS. 822-840 Doctrine Extends to Navigable Lakes.— See note 46. III. Riparian and Littoral Rights. C. Incidents of Riparian and Littoral Ownership — 3. Right to Con- struct AND Maixtaix \\harvhs, Pikrs, etc. — In America. — "The rights of a riparian owner upon a navigable stream in this country are governed by the law of the state in which the stream is situated. These rights are subject to the paramount public right of navigation. The riparian proprietors have the right, amon^ others, to build private wharves out so as to reach the navigable waters of the stream. "'^"^ A Property Right Which Can Not Be Impaired.— A private wharf on a navigable stream is held to be property which can not be destroyed or its value impaired, and it is property the exclusive use of which the owner can only be deprived in accordance with established law; and if necessary that it or any part of it be taken for the public use, due compensation must be made.'*"'' When the Public Seeks the Right to Use Private Wharf. — In order that the public may acquire the right to use a private wharf, its rights must be ob- tained by an adverse user so as to take away from the owner the ordinary rights of ownership.^'"^' 822-46. Doctrine extends to navigable lakes. — "The right of the state to grant lands covered by tide waters or navigable lakes, and the qualifications, as stated in Shively v. Bowlby, 152 U. S. 1, 47, 38 L. Ed. 331, 14 S. Ct. 548, are that tne state may use or dispose of any portion of the same 'when that can be done without sub- stantial impairment of the interest of the public in sucli waters, and subject to the paramotuit right of congress to control their navigation so far as may be neces- sary for the regulation of commerce." "" United States v. Chandler-Dunbar Water Power Co.. 209 U. S. 447, 52 L. Ed. 881, 28 S. Ct. 579. 840-90a. In America — In Virginia. — Weems Steamboat Co. v. People's Steam- boat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 061. Riparian proprietors in Virginia have the right to build out private wharves so as to reach the navigable waters of the stream. Decree (1907), 152 F. 1022, 82 C. C. A. 276, reversed. Weems Steamboat Co. V. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. ]024. 29 S. Ct. 661. "If the wharf obstructs navigation or the private rights of others, or if it en- croach upon any public landing, the wharf may be abated. Va. Code, 1887, § 998." Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. 840-90b. A property right which can not be impaired. — Weems Steamboat Co. V. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024; 29 S. Ct. 661. "The owner of a private wharf on a navigable stream does not, on that ac- count only, hold it by a different title from the owner of any other property which he may use himself or permit oth- ers whom he may select to use, while, at the same time, denying its use by anyone else." Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. The owner or lessee of the exclusive right to use a wharf on a navigable stream need not permit its use by others upon payment of reasonable compensa- tion therefor because there is no other wharf at that port, or because such use is convenient, and has been permitted by the former owner or lessor. Weems Steamboat Co. ■;:■. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. 840-90C. When public seeks the right to use a private wharf. — W^eems Steam- boat Co. f. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. In regard to the use of a private wharf by the public, with or without compensa- tion to the owner, the public can obtain no adverse right as against such owner by mere user. To obtain it there must be an intention on the part of the owner to dedicate the property to the use of the public, and there must be an acceptance of such dedication on the part of some public authority, which may sometimes be implied (but not in such a case as this), and, in the absence of such dedi- cation and acceptance, the use will be re- garded as under a simple license, subject to withdrawal at the pleasure of the owner. Such was the case here. Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. "We see no sufficient reason for sub- jecting a private wharf to the public use, which may frequently include tliat of a competitor with the owner, simply be- cause there is no other wharf at the place. A public wharf, it is presumed, may be built, or, if there be no place for one, 917 854 N ATI GABLE WATERS. Vol. VIII. IV. Regulation, Improvement, and Obstruction of Navigable Waters. A. Powers of Congress — 4. Obstruction Not a Common-Law Offense AGAINST THF Unitfd StatES. — See note 26. 5. Delegation of Power to Improve, Obstruct, or Remove Oibstructions, TO Heads of Departments. — "The court has heretofore held, upon full con- sideration, that congress had full authority, under the constitution, to enact § 18 of the Act of March 3, 1899, and that the delegation to the secretary of war of the authority specified in that section was not a departure from the established constitutional rule that forbids the delegation of strictly legislative, or judicial powers to an executive officer of the government."-*^'^ the private wharf might l)e taken by pub- lic authority for the public use, upon compensation being made for the taking of the property." Weems Steamboat Co. V. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. If the owner of one of these wharves had devoted it to the public use, and per- mitted the public to use it as it desired, and demanded compensation for such use, the question as to the amount of such compensation might be raised, to be de- termined with reference to ^the reason- ableness of the charge. But this is no such case. The legislature has passed no law regarding rates, if that were material, and the reasonableness of the charge is not under consideration. The right to use the property has been withdrawn by the owner as to the public in general, including defendant. The only question is whether a third person has the right to use a private wharf on tendering rea- sonable compensation therefor, because there is no other wharf at the place, or because it would be more convenient to such third person to so use it, or because the former owner of the wharf had per- mitted the public to use it, although the present owner refused to consent to such use. There is no more reason why such property should be held subject to the right of others to use it against the will of its owner than there is for any other kind of property to be so held. Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 53 L. Ed. 1024, 29 S. Ct. 661. "The question as to the right of the owner to exclude others from the use of a private wharf on a navigable stream has been very recently decided by this court in Louisville, etc., R. Co. v. West Coast Naval Stores Co., 198 U. S. 483, 49 L. Ed. 1135, 25 S. Ct. 745, and the right of such owner to exclude any or all other persons from the use of such wharves was af- firmed. The owner was not, it was also said, compelled to use the wharf ex- clusively for his own business or else to throw it open for the use of everyone; that he could not only use it himself and permit some others to use it, but might, at the same time, exclude still others to whom he did not choose to grant such right." Weems Steamboat Co. v. Peo- ple's Steamboat Co., 214 U. 3. 345, 53 L. Ed. 1024, 29 S. Ct. 661. 854-26. Obstructions in navigable waters which are entirely within a state may be offenses against the laws of the state, but constitute no ofifense against the United States, in the absence of a statute. North Shore Boom, etc., Co. v. Nicomen Boom Co., 212 U. S. 406, 53 L. Ed. 574, 29 S. Ct. 355; Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8, 31 L. Ed. H29, 8 S. Ct. 811. 854-26a. Delegation of power to heads of departments. — Hannibal Bridge Co. v. United States, 221 U. S. 194, 55 L. Ed. 699, 31 S. Ct. 603. "All that the act did was to impose upon the secretary the duty of attending to such details as were necessary in or- der to carry out the declared policy of the government as to the free and unob- structed navigation of those waters of the United States over which congress, in virtue of its power to regulate commerce, had paramount control." Hannibal Bridge Co. v. United States, 221 U. S. 194, 55 L. Ed. 699, 31 S. Ct. 603. "What the secretary did in relation to the bridge here in question seems to have been in substantial, if not in exact, accordance with the statute. He was offi- cially informed through the engineer corps, that the complaints that came to him froin many sources as to the Hanni- bal bridge were Sufficient to require such action on his part as the statute au- thorized. He ordered a hearing, first causing notice to be given to the parties interested of the time and place of the hearing. We can not doubt from the record that the hearing Avas adequate and was fairly conducted. The result of the hearing was a recommendation, con- curred in by the chief of engineers, that certain alterations of the bridge were de- manded by the public interests. There was a second hearing, with a like result. Then the secretary acted, and directed the making of such alterations in the bridge as had been found to be neces- sary. Of the character and extent of those alterations the bridge company was notified by an official coinmunication from the war department. It is true that that communication was signed by the as- 918 Vol. VIII. NAJ7GABLB WATERS. 855-867 B. Powers of States — 1. States Have Full Control op Their Navi- gable Waters, Subject to Paramount Control oe Congress. — See note 30. 2. Not Every Act oe Congress That Operates to Supersede Power oi-^ States. — See note 31. F. Proceedings to Abate or Remove Obstructions — 2. Civil Proceed- ings — 1). Jurisdiction; State and Federal Questions — (1) In Proceeding In- stituted by Private Persons. — Whether or not the construction of a log loom in a navigable stream lying entirely within the state is authorized by the state statutes is not a federal question which will sustain a writ of error from the supreme court of the United States to a state court-^^*^ sistant secretary of war, and not by the secretary himself. And that fact is re- lied upon to invalidate the entire proceed- ing. There is no merit in this objection. The comniimication signed by the as- sistant secretary shows, upon its face, that it was from the war department and from the secretary of war, and that the secretary, without abrogating his au- thority tmder the statute, only used the hand of the assistant secretary in order to give the owners of the bridge notice of what was required of them under the statute. It is physically impossible for the head of an executive department to sign, himself, every official communica- tion that emanates from his department." Hannibal Bridge Co. v. United States, 221 U. S. 194, 55 L. Ed. 699, 31 S. Ct. 603. As to taking property for public use by removing obstructions to navigation, see ante, DUE PROCESS OF LAW, p. 47 5. 855-30. States have full control subject to paramount control of congress.— "The river in question is a navigable stream, en- tirely within the state of Washington, and, in the absence of any statute by con- gress, a state has plenary power in re- gard to such waters." North Shore Boom, etc., Co. v. Nicomen Boom Co., 212 U. S. 406, 53 L. Ed. 574, 29 S. Ct. 355. 857-31. Operation of act as superseding power of states. — Where there is a fed- eral law which it is claiined also applies to the subject and requires the consent of the federal government, then there is a concurrent or joint jurisdiction of the state and national governments over the erection of a structure which obstructs navigation. North Shore Boom, etc., Co. V. Nicomen Boom Co., 212 U. S. 406, 53 L. Ed. 574, 29 S. Ct. 355; Cummings v. Chicago, 188 U. S. 410, 47 L. Ed. 525, 23 S. Ct. 472; Montgomery v. Portland, 190 U. S. 89, 47 L. Ed. 965, 23 S. Ct. 735. 867-58a. Jurisdiction — State and federal questions. — North Shore Boom, etc.. Co. 7'. Nicomen Boom Co.. 212 U. S. 406, 53 L. Ed. 574, 29 S. Ct. 355. The question whether the acts com- plained of, such as obstructions, etc., in the river, are lawful or unlawful under the state law, is a state question, not a federal one. North Shore Boom, etc., Co. V. Nicomen Boom Co., 212 U. S. 406, 53 L. Ed. 574, 29 S. Ct. 355; Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8, 31 L. Ed. 629, 8 S. Ct. 811. It is contended, however, on the part of the counsel for the defendant, that whether the assent of the state has been given to the erection of the structure is, in and of itself, a federal question, and he cites United States z>. Bellingham Bay Boom Co., 176 U. S. 211, 218, 44 L. Ed. 437, 20 S. Ct. 343, as authority for the proposition. That case was brought by the United States under the direction of the attorney general, pursuant to the provisions of § 10 of the river and harbor bill of 1890 (26 Stat, at L. supra). It was brought to enforce the right of the gov- ernment to prevent the erection of a structure that obstructed the navigation of the river. It was held in that case that the words in the 10th section, "not affirma- tively authorized by law," referred to the state as well as to the federal law, and that the question then arose as to whether the structure was permitted by that (state) law, and as the law of congress provided that it might be permitted if affirmatively authorized by a state law, the question whether it was so authorized became, in effect, a question whether the federal law did or did not permit it. If it were authorized by the state law, then the federal lav/ provided that it might con- tinue; and whether it was or not became a federal question. North Shore Boom, etc., Co. V. Nicomen Boom Co., 212 U. S. 406, 53 L. Ed. 574, 29 S. Ct. 355. "This is not such a case, and it is not brought by the government under the sec- tion above mentioned, but the suit con- cerns private parties only, and the statute does not, in the section applicable, refer to any state law, as in the case cited. Section 7. river and harbor act of 1890, 26 Stat, at L. 454, chapter 907. .A.nd § 10 of chapter 425 of the Laws of 1899, 30 Stat, at L. 1151, supra, alters the 10th section of the statute of 1890 by providing 'that the creation of any obstruction not af- firmatively authorized by congress to the navigable capacity of any of the waters of the United States is hereby prohibited.' It leaves out the words 'not affirmatively authorized bv law,' and substitutes 'not 919 877 • NBGLIGBNCB. Vol. VIII. V. Navigable Waters as Boundaries. See ante. Boundaries, p. 206. See. also, ante, "Grant of Navigable Waters and Underlying Soils in the States," II, B, 4. NAVIGATION. — See ante, Admiralty, p. 10; Colusion, p. 243; post, Ships AND Shipping. NAVY, — See ante. Army and Navy, p. 150. NE EXEAT. — See the title Ne Exeat, vol. 8, p. 871, and references there given. NEGLECT.— See post, Negligence. NEGLIGENCE. III. Definitions, Distinctions and General Considerations, 920. C. Liability for Unavoidable Accidents, 920. VII. Proximate Cause, 920. B. Statement of General Rule, 920. C. Nearness in Time or Place to Catastrophe, 921. D. Doctrine of Last Clear Chance, 921. E. Intervening Causes, 921. 1. In General, 921. F. Questions of Law and Fact, 921. X. Privity, 921. XII. Evidence, 922. A. Presumptions and Burden of Proof, 922. 1. Presumption of Negligence, 922. b. Res Ipsa Loquitur, 922. 2. Burden of Proof, 922. B. Questions of Law and Fact, 922. 2. When a Question of Law for the Court, 922. 3. When a Question of Fact for the Jury, 922. 5. Contributory Negligence, 922. CROSS REFERENCES. See the title Negligence, vol. 8, p. 873, and references there given. In addition, see ante. Carriers, p. 216; Damages, p. 455; Master and Serv- ant, p. 851. As to what constitutes contributory negligence in a traveler using a railroad crossing, see ante, Crossings, p. 454. III. Definitions, Distinctions and General Considerations. C. Liability for Unavoidable Accidents. — See note 15. VII. Proximate Cause. B. Statement of General Rule. — Anticipation of Consequences. — Even where the highest degree of care is demanded, still the one from whom affirmatively authorized by congress.' plaintiff' can not make out a case against There is, therefore, no reference to strte the defendant, in an action for damages action or state law." North Shore Boom, for alleged negligent injuries, by showing etc., Co. V. Nicomen Boom Co., 212 U. merely an accident and an injury. Waters- S. 406, 53 L. Ed. 574, 29 S. Ct. 355. Pierce Oil Co. v. Deselms, 212 U. S. 159, 877-15. Unavoidable accidents. — The 53 L. Ed. 453, 29 S. Ct. 270. 920 Vol. VIII. XBGLIGBXCE. 881-887 it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. It has been well said that, "if men went about to guard themselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can fore- cast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things."-^''^ C. Nearness in Time or Place to Catastrophe.— See note Z7. D. Doctrine of Last Clear Chance.— See post, ••Questions of Law and Fact," VII, F. E. Intervening Causes— 1. Ix General.— See notes 41, 44. F. Questions of Law and Fact.— See post, '•Questions of Law and Fact," XII, B. See note 47. X. Privity. See note 66. 881-35a. Anticipation of consequences. — Atchison, etc., R. Co. %■'. Calhoun, 213 U. S. 1, 53 L. Ed. 671, 29 S. Ct. 32], citing Pollock, Torts, 8th Ed. 41. See post, "In General," VII, E, 1. 881-37. A jury is warranted in finding that tuberculosis of the spine is the di- rect result of an injury from a falling- timber, where there was ample evidence that the blow occasioned the development of the disease, though it was not discov- ered to be such for over a year. Texas, etc., R. Co. V. Howell, 224 U. S. 577, 56 L. Ed. 892, 32 S. Ct. 601. 882-41. Intervening causes in general. — A careless person is liable for all the natural and probable consequences of his misconduct. If the misconduct ,is of a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of soine subsequent cause, the intervening cause will not excuse him, and the subsequent mischief will be held to be the result of the original misconduct. This is upon the ground that one is held responsible for all the consequences of his act which are natural and probable, and ought to have been foreseen by a reasonably prudent man. Atchison, etc., R. Co. %<. Calhoun, 213 U. S. 1, 53 L. Ed. 671, 29 S. Ct. 321. 883-44. Intervening efficient causes will bar recovery. — The law, in its practical administration, regards only proximate or immediate, and not remote, causes, and, in ascertaining which is proximate and which remote, refuses to indulge in meta- physical niceties. Where, in the sequence of events between the original default and the final mischief an entirely independent and unrelated cause intervenes, and is of itself sufficient to stand as the cause of the mischief, the second cause is ordina- rily regarded as the proximate cause and the other as the remote cause. This is emphatically true when the intervening cause is the act of some person entirely unrelated to the original actor. Atchison, etc., R. Co. V. Calhoun, 213 U. S. 1, 53 L. Ed. 671. 29 S. Ct. 321, citing Insurance Co. V. Tweed, 7 Wall. 44, 52, 19 L. Ed. 65. 884-47. Proximate cause a question for jury. — The negligence of one who care- lessly places herself in a position exposed to danger can not as matter of law be said to be the proximate cause of an injury, if her negligence was discovered in time to avoid the injury by the use of reasonable care, and such care was not exercised. Judgment (1904) 23 App. D. C. 551, re- versed. Chunn V. City, etc., Railway, 207 U. S. 302, 52 L. Ed. 219, 28 S. Ct. 63. See ante, CARRIERS, p. 210. Whether a fire was caused by the in- flamable nature of a mixture of coal oil and gasoline sold as coal oil is for the jury, where the evidence while tending to show that such mixture had been used to saturate kindling wood in a stove, tends to rebut implication that, after the fire had been liglited, the mixture was poured upon it. Judgment (1907) 89 P. 212, 18 Okl. 107, affirmed. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 L. Ed. 453. 29 S. Ct. 270. 887-66. Liability of oil company to con- sumer for injuries from explosion. — The absence of any contractual relation be- tween an oil company and a private con- sumer does not relieve the company from liability fur injury sustained by the latter in using, in the customary manner, a tiuid which both he and his innocent vendor supposed was coal oil, but which the oil company, knowing that it contained gaso- line, sold to such vendor as coal oil in violation of statute, and with the expecta- tion that it would be retailed to the pub- lic for domestic use as such. Waters- Pierce Oil Co. V. Deselms. 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270, citing Savings 921 889-892 NEGLIGBNCB. Vol. VIII. XII. Evidence. A. Presumptions and Burden of Proof. — See, generally, post, Presump- tions AND Burden of Proof. 1. Presumption of NfgligencF — b. Res Ipsa Loquitur. — See note 72. 2. BuRDFN OF Proof. — Contributory Negligence. — The burden of proof is upon the plaintifif to establish the defendant's negligence. '^'^^ B. Questions of Law and Fact. — See ante, "Questions of Law and Fact," VII, F. 2. Whfn a Question of Law for thf Court. — See note 81. 3. Whfn a Question of Fact for the Jury. — See note 82. 5. Contributory Negligence. — See note 86. Bank v. Ward, 100 U. S. 195, 204, 25 L. Ed. 621. Quaere, question was raised but not de- cided whether the original vendor is liable to a consumer for negligently mixing gas- oline with coal oil where the intermediate retailer has knowledge of the dangerous character of the oil. Waters-Pierce Oil Co. V. Deselms. 212 U. S. 159, 53 L- Ed. 453. 29 S. Ct. 270. 889-72. The doctrine of res ipsa loquitur is when a thing which causes injury, without a fault of the injured person, is shown to be under the exclusi\e con- trol of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such con- trol uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care. San Juan Light, etc., Co. v. Requena, 224 U. S. 89, 56 L. Ed. 680, 32 S. Ct. 399. The doctrine of res ipsa loquitur is properly applied where a customer of a company supplying electricity for light- ing purposes, engaging to deliver a suit- able current for such purpose, was killed without fault on his part, while the sec- ondary wire carrying the current to his residence conveyed an excessive and dan- gerous current which could only come from the primary wire of such company, which carried a current of high and deadly voltage, which dangerous current would not have been communicated to the sec- ondary wire if its wires and converters, which were exclusively under its control, had been in proper condition, and the converters were found, immediately after the accident, to be out of order, one being- heated and its insulation charred, and the protecting ground wire of the other being severed. San Juan Light, etc., Co. v. Req- uena, 224 U. S. 89, 56 L. Ed. 680, 32 S. Ct. 399. See ante, ELECTRICITY, p. 536. 890-77a. Burden of proof — Contributory negligence. — Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 L Ed. 453, 29 S. Ct. 270. 890-81. Questions of negligence do not become questions of law, to be decided by the court except "where the facts are such that all reasonable men must draw the same conclusion from them; or, in other words, a case should not be withdrawn from the jury unless the conclusion fol- lows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish." Kreigh v. Westing- house, etc., Co., 214 U. S. 249, 53 L. Ed. 98jt, 29 S. Ct. 619, following Gardner v. Michigan Cent. R. Co., 150 U. S. 349, 361. 37 L. Ed. 1107, 14 S. Ct. 140. 891-82. When negligence a question of fact for jury. — If, upon the facts, reason- able men might fairly reach the conclu- sion that the plaintiff, while herself in the exercise of due care, was injured by the negligence of the defendant, the case should have been submitted to the jury. Chunn V. City, etc., Railway, 207 U. S. 302, 52 L. Ed. 219, 28 S. Ct. 63. Whether it is negligence to run a street car at full speed past a usual stopping place when persons can plainly be seen standing upon the platform between the inner rails, awaiting a car approaching from the opposite direction, is a question for the jury, where the street car company had sanctioned such a practice on the part of intending passengers, and the space be- tween the rails, while wide enough to enable a person standing in the center to escape injury left but a narrow margin of safety. Chunn v. City, etc.. Railway, 207 U. S. 302, 52 L. Ed. 219, 28 S. Ct. 63. See ?nte. CARRIERS, p. 216; post, STREET RAILWAYS. 892-86. Contributory negligence a ques- tion for jury. — The trial court properly refused to charge as a matter of law that the evidence established the defense of contributory negligence, where the testi- mony on that question was such as to leave fair ground for difference of opinion. Delk V. St. Louis, etc., R. Co., 220 U. S. 580, 55 L. Ed. 590, 31 S. Ct. 617, reversing judgment (1908), St. Louis & S. F. R. Co. V. Delk, 158 F. 931, 86 C. C. A. 95, 14 A. & E. Cas. 233. 922 Vol. VIII. XEJJ' TRIAL. 912-913 NEGOTIABLE PAPER.— See ante. Bills, Notes and Checks, p. 204. NEGROES. — See ante, Civil Rights, p. 236; Interstate and Foreign Commerce, p. 689; Jury. p. 813. ' NEUTRALITY.— See the title Xeutrality, vol. 8, p. 894, and references there 2;iven. NEWLY-DISCOVERED EVIDENCE.— See post, New Trial. NEWSPAPERS.— See the title Newspaper, vol. 8, p. 906, and references there given. In addition, see ante, Jury, p. 813 ; post, New Trial. NEW TRIAL III. Motion or Application, 923. B. Time of .Alotion, 923. 3. Court of Claims, 923. 4. \\'hen Too Late, 923. D. Hearing and Determination, 923. 3. Evidence, 923. IV. Grounds of Motion, 924. C. ^Misconduct and Incompetency of Jurors, 924. J^. Former Conviction, 924. CROSS REFERENCES. See the title New Trial, vol. 8, p. 907, and references there given. III. Motion or Application. B. Time of Motion — 3. Court of Claims. — See note 13. Congress had power to grant these advantages to the United States since the government in consenting to be sued has the right to attach such conditions to its consent as to it may seem proper.i^'^ 4. \\'hen Too Late. — Power to Grant on Motion after Term. — Ordi- narily a court has no power to grant a new trial after the adjournment of the term if no application has been made previous to the adjournment and no con- tinuance granted. ^^^ D. Hearing and Determination. — 3. Evidence. — See note 20. 912-13. Applies to Indian Depredation son :•. United States, 210 U. S. 168, 175, 52 Act. — Claims under Indian Depredation L. Ed. 1007, 28 S. Ct. 661. Act :\Iarch 3, 1891, c. 538, 26 Stat. 851 (U. S. 9l3-14a. Power to grant after term.— Comp. St. 1901, p. 758). are embraced by Sanderson v. United States, 210 U. S. 168, the provisions of Rev. St. U. S., § 1088 (U. i-~ 52 L. Ed. 1007, :.',s ^. Ct. 661. S. Comp. St. 1901, p. 745), giving tlie court 913-20. Evidence impeaching verdict. — ot clanns power to grant new trials on rp, . ,. . ■ ^ .. ^u u u If { t-i T"„v„^ c^of^o ^he testimony of jurors as to the motives motion on behalf of the Lnited States. ^ , ■ a ■ ^\ • j- .. -u o 1 TT -i J Ct 4- ntn Tj c -iro ?nd rcasons innuencing their verdict will Sanderson t'. United States, 210 U. b. 168, . , . , ^ u -^ 1 .. *. -p T PI ^„„^ ^o q P ^,j.. not be received, except where it relates to "t-_.-I*^4.- ' 'j " ^l^4.^\^lur 4.^ 4.;^^ ^t ^^ extraneous influences tending to prevent Limitation does not apply to time or de- ., . r , 11 ^ ^ u- ^ r .• \ 1- -4. 4.- „ 1-^ 11^ the exercise of deliberate and unbiased cision of motion. — A limitation applicable ;. j „ j. xj j tt -^ 1 c* .. o- \ ^ ^, ^. r cv .1 .■ „j „^t. udgment. Hvde z\ United States, 3o ApD. to the time for hung the motion, and not y>. '^ ,., .- . ,• • .. 1 tit i .. ^i. ^- r } ^ 4.U A ^- ■ . 4U^^^ LJ- C. 4ol, writ of certiorari granted tJyde to the time for making the decision there- ^, tt,,u.,^ c+ ^^^ 0-0 tt c .-o, -, r v.] J , ^, • • „ ^r r)„ Ot 7'. United btates, 218 U. b. t)81, oi L,. b.a. on, is made by the provision ot Kev. bt. ,,^.-, ., o p^ „„„ U. S.. § 1088 (U. S. Comp. St. 1901. p. 745), i-^^', -i »• ^.t. „..s. _ that the court of claims, "within two vears T^^ ^"^^ '^^"'"^ commits no error in de- next after the final disposition" of a claim, py'^g a motion for a new trial in a crim- may, on motion on behalf of the United '."a' case, founded upon the affidavits of States, grant a new trial. Sanderson v. ■'"'"oi's to the effect that they did not un- united States, 210 U. S. 168, 52 L. Ed. derstand the legal effect of their verdict. 1007 ''8 S Ct 661 Hendrix r. United States, 219 U. S. 79, 55 912-13a. Power of congress. — Sander- L. Ed. 102, 31 S. Ct. 19.5. 923 915-956 OFFICERS. Vol. VIIL IV. Grounds of Motion. C. Misconduct and Incompetency of Jurors. — See note 29. J|. Former Conviction. — Waiver of Ground. — It is not an abuse of dis- cretion for the district court to refuse a new trial in a misdemeanor case on account of defendant's former conviction of the same offense, when such con- viction was first brought to its attention by motion for new trial. ^^a NINETY- FOURTH EQUITY RULE.— See post, Stock and Stockholders. NOMINAL PARTY. — See ante, Courts, p. 398; post, Removal of Causes. NONJOINDER. — See ante. Demurrers, p. 461 ; post, Parties. NON-MARITIME TORTS.— See ante, Admiralty, p. 10; post. Ships and Shipping. NONSUIT. ^See ante. Dismissal, Discontinuance and Nonsuit, p. 466. NONUSER. — See post, Patents; Quo Warranto. NOTARY PUBLIC— See the title "Notary Public, vol. 8, p. 926, and ref- erences there given. As to • affidavit for extradition purposes being sufficient when made before a notary public in Georgia, who, under the code, is ex officio a justice of the peace, see ante. Extradition, p. 571. See, also, ante. Magis- trate. NOTES. — See ante. Bills, Notes and Checks, p. 204. NOTICE. — See the title Notice, vol. 8, p. 928, and references there given. As to notice under due process clause of the constitution, see ante. Due Proc- ess OF Law, p. 475. As to notice and knowledge of corporate officers being imputed to the corporation, see post, Officers and Agents of Private Cor- porations. NOTICE OF PENDENCY.— See ante. Lis Pendens, p. 834. NOVATION.— See the title Novation, vol. 8, p. 932. NOVELTY.— See post. Patents. . ■ NUISANCES. — See the title Nuisances, vol. 8, p. 933, and references there given. As to the right to seize and destroy putrid and unwholesome food, as constituting a nuisance and as a menace to the public health, see post. Police Power. OATH. — See the title Oath, vol. 8, p. 951, and references there given. As to administrator of oath in matters to special assessments, see post. Special Assessments. OBITER DICTA.— See post. Stare Decisis. OBSTRUCTING JUSTICE.— See the title Obstructing Justice, vol. 8, p. 954, and references there given. OCCUPATION TAX.— See ante. Licenses, p. 826. OF.— See note 955-2. OFFENSES AGAINST CIVIL SERVICE.— See post. Public Officers. OFFICE.— See note 956-2. OFFICERS. — See post. Officers and Agents of Private Corporations : Public Officers. As to particular officers, see the particular title throughout this supplement. 915-29. Reading newspaper. — See ante, L. Ed. 101.5, 31 S. Ct. 7. And see post, JURY, p. 813. RECORDS. 920-52a. Waiver of ground. — Judgment, 956-2. Inception of office. — "An office State c'. Durein (1905) 80 P. 987, 70 Kan. commonly requires something more per- 1, affirmed. Durein v. Kansas, 208 U. S. manent than a single transitory act or 613, 52 L. Ed. 645, 28 S. Ct. 567. transaction to call it into being." Car- 955-2. Of record. — See Northern Pac. rington z: United States, 208 U. S. 1, 6, 52 R. Co. V. Trodick, 221 U. S. 208, 55 L. Ed. L. Ed. 367, 28 S. Ct. 203. See ante, ARMY 704, 31 S. Ct. 607. See, also, United States AND NAVY, p. 150. V. Chicago, etc., R. Co., 218 U. S. 233, 54 924 Vol. YIU. OFFICERS. ETC., OF PRIVATE CORPORATIONS. 960 OFFICERS AND AGENTS OF PRIVATE CORPORATIONS. VI. Election and Appointment, 925. A. In General, 925. VI. Powers, 925. A. In General, 925. 1. Power to Act for and Bind Corporations, 925. B. Of Directors, 925. 1. In General, 925. e. Contracts and Dealings with Corporation, 925. (7) Rescission, 925. f. As Representing Bond Holders, 926. VIII. Duties and Liabilities of Officers or Agents, 926. A. In General, 926. 4. Compliance with Writs Directed to Corporation, 926. B. Of Directors, 926. 2. Directors as Trustees, 926. IX. Liability of Corporation for Acts of Officers and Agents, and Rights Thereunder, 926. A. Responsibility of Corporation for Acts Generally, 926. C. For Torts, 926. X. Notice to Corporation Through Officers or Agents, 927. CROSS REFERENCES. See the title Officers and Agents of Private Corporations, vol. 8, p. 957, and references there given. In addition, see ante. Mines and jNIinerals, p. 865. III. Election and Appointment. A. In General. — Seal or Vote of Corporation. — There need be no writ- ten authority under seal or vote of -the cor})oration in order to constitute the agency or to authorize the act of an agent. ""^ VI. Powers. A. In General — 1. Power to Act for and Bind Corporations. — See post, "Liability of Corporation for Acts of Officers and Agents, and Rights There- under," IX. B. Of Directors — 1. In General — e. Contracts and Dealings zvitli Cor- poration — (7) Rescission. — That part of an agreement between a corporation 4. Character of Contract \A'here Rights of Third Parties Are Con- cerned, 931. G. Subject Matter, 931. H. Construction of Particular Terms. 931. CROSS REFERENCES. See the title Parol Evidence, vol. 9, p. 12, and references there given. IV. Limitations of and Exceptions to Rule. A. In General. — See note o^. D^. Character of Contract Where Rights of Third Parties Are Con- cerned. — The real character of a contract between a corporation and a cred- itor in the form of a conditional sale from the latter to the former may be shown in a case in Porto Rico which presents not only a controversy between the parties to the contract, but its effect and operation upon the creditors of the corporation, especially where such contract was never inscribed upon the public records so as to bind third persons.^*^^ G. Subject Matter. — See note 88. Previous and contemporan,' transac- tions and facts may be very properly taken into consideration to ascertain the subject matter of a contract. ^"^^ H. Construction of Particular Terms. — Previous and contemporary trans- actions and facts may be taken into consideration to ascertain the sense in which the parties may have used particular terms. ^^^^ It is not for the purpose of making a contract for the parties, but to understand what contract was ac- tually made, that, in cases of doubt as to the meaning of language actually used, prior negotiations may sometimes be referred to.^^'' 19-38. A contract to grind all the sugar transactions and facts. — United States v. cane raised by a lessee upon certain speci- Bethlehem Steel Co., 205 U. S. 105, 51 L. fied plantations leased to him for a certain Ed. 731, 27 S. Ct. 450, reversing 41 Ct. number of grinding seasons is a contract CI. 19. to grind in the grinding season, and parol 27-96a. Previous and contemporary evidence is admissible to show what that transactions and facts. — United States v. season is. Porto Rico Sugar Co. v. Lo- Bethlehem Steel Co., 205 U. S. 105, 51 L. renzo, 222 U. S. 481, 56 L. Ed. 277, 32 S. Ct. Ed. 731, 27 S. Ct. 450, reversing 41 Ct. 133. CI. 19. 23-66a. Character of contract where Recourse may be had to the prior nego- rights of third parties are concerned. — tiations between the parties, where it is Valdes v. Central Altagracia, 225 U. S. 58, doubtful whether a penalty or liquidated 56 L. Ed. 980, 32 S. Ct. 664. damages were meant by a clause in the 26-88. Extrinsic evidence admissible to written contract relating to the payment identify subject matter. — Parol evidence of damages for its nonfulfillment. Judg- of circumstances surrounding a sale of ment, Bethlehem Steel Co. v. United real property was admissible to identify States (1905). 41 Ct. CI. 19, reversed, the premises and to remove the ambigu- United States v. Bethlehem Steel Co., 205 ity created by the use of the word "about."' U. S. 105, 51 L. Ed. 1?>\. 27 S. Ct. 450. Judgment (1907), 29 App. D. C. 490, af- 27-96b. Purpose of admission. — United firmed. Harten v. Loffler, 212 U. S. 397, 53 States v. Bethlehem Steel Co.. 205 U. S. L. Ed. 568, 29 S. Ct. 351. 105. 51 L. Ed. 731, 27 S. Ct. 450, reversing 26-90a. Previous and contemporary 41 Ct. CI. 19. 931 37-64 PARTIES. Vol. IX. PARTIES. III. Parties in Equity, 932. A. Rules Applicable to Parties Generally, 932. 1. Interest as Criterion, 932. a. In General, 932. b. Rule Subject to Qualifications and Exceptions, 932. VI. Intervention, 932. B. Who May Intervene, 932. 2. Interest Entitling to Intervene, 932. C. Time for Exercising Right to Intervene, 932. D. Procedure, 932. 1. Manner of Intervening, 932. CROSS REFERENCES. See the title Parties^ vol. 9, p. 34, and references there given. III. Parties in Equity. A. Rules Applicable to Parties Generally — 1. Interest as Criterion — a. In General — See note 6. b. Rule Subject to Qualifications and Exceptions. — See note 19. VI. Intervention. B. Who May Intervene — 2. Interest Entitling to Intervene. — See note 53. C. Time for Exercising Right to Intervene. — See note 54. D. Procedure — 1. AIanner of Intervening. — See note 57. 37-6. All persons materially interested to be made parties. — Garzot z'. Rnbio. 209 U. S. 283, 52 L. Ed. 794, 28 S. Ct. 548. 40-19. Act of February 28, 1839.— A nonresident heir can not be regarded as such an indispensable partj' defendant that his absence will defeat the jurisdic- tion of a federal court of chancer}^ over a suit brought by an heir against the ex- ecutor and other heirs, to determine her interest in an alleged lapsed legacy and the consequent increase in the residuary estate, in view of the provisions of Rev. St. U. S., § 737 (U. S. Comp. St. 1901, p. 587), and of equity rule 47, which permit the court to proceed with the trial and ad- judication of a suit as between the parties who are properly before it, and preserve the rights of parties not voluntarily ap- pearing, providing their rights are not prejudiced by the decree to be rendered. Waterman ?'. Canal-Louisiana Bank, etc., Co., 215 U. S. 33, 54 L. Ed. 80, 30 S. Ct. 10. 63-53. Persons entitled to intervene. — A federal circuit court which had acquired jurisdiction over a street railway company, and has appointed receivers for it, may, in its discretion, permit another street rail' way company to intervene, making it a part}'' defendant, and extending the re- ceivership to it, where the two companies sustained, respectively, the relation of les- see and lessor, and their interests are in- extricably bound together. In re Metro- politan R. Receivership, 208 U. S. 90, 52 L. Ed. 403, 28 S. Ct. 219. 64-54. Right to be claimed within rea- sonable time. — The right of the adminis- tratrix of the surety on a forfeited bail bond, asserting an express trust in the surety's favor in certain securities held by a third person, to intervene in a suit by the United States to charge the holder of the securities with a trust in favor of the government, is not barred by laches because the petition in intervention was not filed until the evidence in the suit had been taken and it was ready for final hearing, where such petition was filed shortly after judgment had been recov- ered in a contested suit on the bond. Leary v. United States, 224 U. S. 567, 56 L. Ed. 889, 32 S. Ct. 599. 64-57. By complaint or petition. — Alle- gations in a petition in intervention filed by the administratrix of the surety on a forfeited bail bond, that the decedent be- came such surety "upon the understand- ing and condition" that certain securities held in trust or on deposit bj^ a third person should remain in the latter's hands as security and indemnity for signing the 932 Vol. IX. PARTNERSHIP. 80-81 PARTIES BY REPRESENTATION.— See ante, Parties, p. 932; post. Res Adjudicata. _ PARTITION.— See the title Partition, vol. 9, p. 66, and references there given. In addition, see ante. Limitation of Actions and Adverse Posses- sion, p. 828. PARTNERSHIP. III. What Constitutes, 933. B. Participation in Profits as Test, 933. 1. In General, 933. IV. Relations Inter Se, 934. F. Accounting and Settlement, 934. 3. Interest, 934. G. Lien of Partner, 934. V. Relation to Third Persons, 935. H. Rights and Priorities of Creditors, 935. 1. In General, 935. IX. Pleading and Practice, 935. J. Limitation and Laches, 935. CROSS REFERENCES. See the title Partnership, vol. 9, p. 7h, and references there given. III. What Constitutes. B. Participation in Profits as Test — 1. In General. — Participation in Profits. — See note 14. Amount of Profits to Which Each Partner Entitled — Extra Compensa- tion. — Services rendered after dissolution of the firm by a partner for com- pensation for claims are not favored. They lead to efiforts to prove a disparity between the partners, when the law implies equality. They necessitate a bal- ancing of the value of the work of each in securing the business and earning the profits, as v/ell as a comparison of the time they may spend on the matters under consideration. ^^^ To this general rule there are exceptions, where, un- bend, sufficiently show a right to inter- Cummings, 222 U. S. 262, 269, 56 L. Ed. vene in a suit by the United States to 192, 32 S. Ct. 83. charge the holder of such securities with The surviving member of a special a trust in favor of the government, as partnership between lawyers for the against the objections that the petition prosecution of a number of claims against does not negative the surety's ignorance the United States in congress and be- of the facts claimed to raise the latter fore the court of claims, the compensa- trust, and that, so far as appears, the tion for which service was contingent on asserted right of intervention rests upon success, and was to be paid in solido and an implied contract. Leary v. United divided between the partners in the same States, 224 U. S. 567, 56 L. Ed. 889, 32 S. manner, can not claim, on an accounting, Ct. 599. to be entitled to compensation for such 80-14. A partnership may be inferred services rendered by him after the disso- from the fact that one man furnishes lution, in the prosecution and collection capital and another his personal service of the claims, as he had agreed in the in disposing of it, the latter to be in- partnership agreement to render. (1911) terested in the profits if any, but not to Consaul v. Cummings, 222 U. S. 262, 56 be a debtor of the former. ^Manson v. L. Ed. 192, 32 S. Ct. 83. affirming decree Williams, 213 U. S. 453, 456. 53 L. Ed. (1909). 33 App. D. C. 132. 869, 29 S. Ct. 519. The interest of the estate of a deceased 81-18a. Profits to which partner en- member of a special partnership between titled — Extra compensation. — Consaul v. lawyers for the prosecution of certain 933 81-91 PARTNERSHIP. Vol. IX. der peculiar circumstances, the principles of equity entitle the survivor to com- pensation. ^^"^ IV. Relations Inter Se. F. Accounting and Settlement — 3. Interest. — The surviving partner is properly charged with interest on the balance found, on an accounting, to be due to the personal representatives of the deceased partner, from the date when the bill was filed, where, in response to a demand for settlement, he at first promised to make a statement, and then contended, without substantial support, that the partnership was dissolved because the deceased partner had transferred his interest in the fees, and also resisted the accounting, and failed to produce the proper books, vouchers, and statements, especially, where he did not except to this method of calculating interest, but, on the contrary, obtained a ruling that, on the same basis, he should be allowed interest on ad- vances made by him to the deceased partner.^"^ G. Lien of Partner. — A partner has a lien on the firm's assets for the repayment of his advances to the firm.^^ A lien in favor of the partner con- tributing the entire capital and necessary advances to a land partnership is created by a provision of the partnership agreement for the repayment of the whole sum advanced by him for the venture before any division of profits is declared, although some earlier provisions in the agreement treat the advance of a part of the capital as a loan to the other partner.'^'^"' claims against the United States in con- gress and before the court of claims, in the fees earned under the partnership agreement, can not be diminished on tl.e theory that the contract of employment by the clients was revoked by his in- sanity or death, where they made no suc'i objection, and apparently acquiesced in the arrangement by which the claims were put in the hands of the other part- ner. Consaul v. Cummings, 222 U. S. 262, 56 L. Ed. 192, 32 S. Ct. 83. "Each partner is bound to devote him- self to the firm's business, and there is no implied obligation that for perform- ing this duty he should be paid more than his proportionate share of the gains. Neglect by one to do his part may be of such character as to justify a dissolution. But as long as the firm continues, there is usually no deduction because one part- ner has not been as active as the other. The same is true where death prevents either of the partners from performing his contract. The law did not permit him to appoint a substitute, nor can his per- sonal representative, no matter how well qualified, assist in winding up the afifairs of the firm. Whether that be considered a right or duty, it is, in either event, cast on the survivor. In performing it he only carries out an obligation implied in the partnership relation, and is there- fore entitled to no com_pensation for thus doing what he was bound to do and what would have been imposed on the other had the order of their death been dif- ferent. To allow the survivor compensa- tion wherever he continues the business would be to offer an inducement to delay the settlement which ought to be made as soon as possible." Consaul v. Cum- mings, 222 U. S. 262, 269, 56 L. Ed. 192, 32 S. Ct. 83. 81-18b. Exceptions to rule. — Thus, where by authority of law, or under a power in the will, the personal representative con- sents that the business may be continued by the survivor, the estate must pay for such additional services. Or, where with- out such consent, and at his own risk, the survivor continues the business and makes a profit, the estate is bound to al- low reasonable compensation, if it elects to share in the gains thus made. So, where a member of a firm, by his volun- tary act, dissolved the partnership, the partner who continued the business was allowed compensation for performing- services in which he had the right to have expected the continued assistance of the other. Extra compensation has also been allowed in a few cases where, in order to realize on the assets, it was absolutely necessary for the survivor to continue the business beyond the reasonable tine allowed for winding up its affairs. Con- saul z>. Cummings, 222 U. S. 262, 270, 56 L. Ed. 192, 32 S. Ct. 83. 91-47a. Interest. — Consaul v. Cummings, 222 U. S. 262, 56 L. Ed. 192, 32 S. Ct. 83. 91-48. Lien of partner. — Smith v. Rainey, 209 U. S. 53, 56, 52 L. Ed. 679. 28 S. Ct. 474. ■ 91-50a. Judgment (Ariz. 1906), 83 P. 463, reversed. Smith v. Rainey, 209 U. S. 53. 52 L. Ed. 679, 28 S. Ct. 474. 934 Vol. IX. PASTURAGE. 105-134 V. Relation to Third Persons. H. Rights and Priorities of Creditors — 1. In General. — Under the Louisiana law partnership creditors and the individual creditors have a con- current right to payment out of the individual estates. ^°^ IX. Pleading and Practice. J. Limitation and Laches. — The delay in filing the bill will not bar a suit for an accounting from the surviving partner in a special partnership be- tween lawyers for the prosecution of a number of claims against the United States in congress and before the court of claims, the fees for which services were contingent upon success, and were to be paid in solido, and divided be- tween the partners in the same manner, where such bill, though not filed until eight years after the other partner had been adjudged a lunatic, and three years after his death, was filed within four months after the fees were col- lected.^^^ PART OWNERS. — See ante, Joint Tenants and Tenants in Common, p. 806. PARTY WALLS.— See the title Party Walls, vol. 9, p. 134, and refer- ences there given. PASSAGE OF ACT.— See note 2a. PASS BOOK.— See ante. Banks and Banking, p. 184. PASSENGER.— See ante. Carriers, p. 216. PASTURAGE.— See ante. Animals, p. 27. 105-85a. Priorities. — ^Morgan z: Cred- of all crimes against the United States itors. 8 Martin (N. S.), 599; Flov/er z'. to the federal courts therein provided. Creditors, 3 La. Ann. 189; Miller v. New enacting Ihat "all prosecutions for crimes Orleans, etc., Fertilizer Co., 211 U. S. 496. or offenses committed before the passage 53 L. Ed. 300, 29 S. Ct. 176. of this act, in which indictments have 128-95a. Limitation and laches. — Con- not been found or proceedings instituted, saul z'. Cummings, 222 U. S. 262, 56 L. shall be cognizable within the judicial Ed. 192, 32 S. Ct. 83. district as hereby constituted in which 134-2a. Passage of the act construed as such crimes or offenses were committed." admission of state. — Crimes and offenses since otherwise there would be an indefi- committed before and after the admis- nite period between the date of the en- sion of Oklahoma into the Union, and not abling act and the admission of the state, those committed before and after the during which such crimes might go un- passage of the Enabling Act of June 16, punished. Pickett v. United States, 216 1906, must be deemed meant by the pro- U. S. 456, 54 L. Ed. 566, 30 S. Ct. 265. See vision of § 14 of that act (34 Stat, at L. ante, COURTS, p. 398; CRIMINAL 275, U. S. Comp. Stat. Supp. 1909. p. 155), LAW, p. 434. for the transfer of jurisdiction in respect 935 PATENTS. Vol. IX. PATENTS. III. Patent Laws, 937. C. Construction of Patent Laws, 937. V. Patentability, 937. A. What May Be Patented, 937. 5. Arts and Processes, 937. a. What Constitutes, 937. (2) What Constitutes a Process, 937. b. Patentability, 938. (1) In General, 938. (2) Process Consisting of Function of Machine, 938. (3) Process Carried into Effect by Machinery, 938. (a) General Rule, 938. (6) Combinations, 939. B. Invention, 939. 2. What Constitutes, 939. b. Perfection of Conception and Representation in Physical Form, 939. m. Combination of Old Elements, 939. 3. Evidence of Invention, 940. b. General Use as Evidence of Invention, 940. C. Novelty and Anticipation, 940. 1. Novelty, 940. b. What Constitutes. 940. (7) Combinations, 940. 2. Anticipation, 940. b. Ways in Which Patent May Be Anticipated, 940. (1) Prior Patent, 940. (b) Prior Foreign Patent, 940. c. What Constitutes Anticipation, 940. (10) Particular Kinds of Inventions, 940. (d) Combinations, 940. VI. Proceedings to Obtain Patent, 940. A. Application, 940. 1. Specification or Description of Invention, 940. b. Necessity and Sufficiency of Description, 940. (1) General Rule, 940. IX. Date and Duration, 941. B. Duration, 941. (2) Duration Limited by Foreign Patent, 941. XII. Sales, Assignments, Mortgages and Licenses, 941. A. Sales and Assignments of Patent Rights, 941. 4. Contract of Sale or Assignment, 941. b. Form and Requisites, 941. (6) Compliance with State Statutes, 941. 5. Rights and Liabilities of Transferee, 941. b. Rights of Transferee, 941. (2) What Passes to Transferee. 941. (a) Title and Right to Control, 941. 936 Vol. IX. ^ PATENTS. 152-157 (4) Right to Replace Worn Out Parts, 942. C. Licenses, 942. 1. What Constitutes, 942. Xm. Infringement, 942. A. What Constitutes, 942. 2. Identity, 942. a. Identity of Principle, 942. (2) What Constitutes, 942. (c) Formal Variations. 942. bb. When Form Material Element of Patent, 942. (e) Use of Equivalents, 942. aa. General Rule, 942. bb. Range of Equivalents, 942. cc. What Constitutes, 943. (bb) Mechanical Equivalent, 943. 4, Infringement of Particular Kinds of Patents, 943. d. Combinations. 943. (1) General Rule, 943. (2) Use of Less or More Elements than Used in First Combination, 943. (a) Use of Less than All Elements of First Combi- nation, 943. bb. Substitution of Element for One Omitted, 943. (bb) Equivalent for Omitted Element, 943. 5. Contributory Infringement. 943. B. Remedies for Infringement, 944. 11. Recovery of Damages. Profits or Penalties. 944. b. Recovery of Profits in Suit in Equity, 944. (2) Amount Recoverable, 944. (b) Profits ]\Iust Be Fruits of Invention. 944. (3) Evidence of Profits, 944. (a) Burden of Proof, 944. bb. \\'here Only Part of Profits Due to Use of Invention. 944. 12. Judgment or Decree, 944. d. Final Decree in Favor of Defendant, 944. 16. Injunction against Infringement. 944. CROSS REFERENCES. See the title Patents, vol. 9, p. 136, and references there given. in. Patent Laws. C. Construction of Patent Laws. — Construed Liberally. — The statute creating and guarantying to an inventor the exclusive right to his patent will be so construed as to give effect to the broad public policy intended to be subserved in granting the monopoly.^^^ V. Patentability. A. What May Be Patented — 5. Arts and Processes — a. What Consti- tutes — (2) What Constitutes a Process. — See note 53. 152-24a. Construed liberally. — Henry v. 157-53. What constitutes a process.— Dick Co., 224 U. S. 1, 56 L. Ed. 645, 32 "This clear and succinct statement of the S. Ct. 364. See post, STATUTES. rule was recognized and applied (Mr. 937 158-159 PATENTS. Vol. IX. b. Patentability — (1) In General. — See note 56. (2) Process Consisting of function of Machine. — See note 59. (3) Process Carried into Effect by Machinery — (a) General Rule. — See note 60. Justice Bradley again speaking for the court) in the case of Tilghman v. Proc- tor, 102 U. S. 707, 26 L. Ed. 279. In the course of the opinion the learned justice tersely says: 'A machine is a thing. A process is an act, or a mode of acting. The one is visible to the eye, an object of perpetual observation. The other is a conception of the mind, seen only by its effects when being executed or per- formed. Either may be the means of producing a useful result.' " Expanded Metal Co. z'. Bradford, 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 6.52. 158-56. Process patentable. — "We there- fore reach the conclusion that an inven- tion or discover}^ of a process or method involving mechanical operations and pro- ducing a new and useful result, may be vv^ithin the protection of the federal stat- ute, and entitle the inventor to a patent for his discovery." Expanded Metal Co. V. Bradford, 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 652. 158-59. Function of machine not patent- able. — "It is undoubtedly true, and all the cases agree, that the mere function or effect of the operation of a machine can not be the subject matter of a lawful patent." Expanded Metal Co. v. Brad- ford, 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 652. 159-60. Process carried into effect by machinery. — 'Tt is lastly contended, and this is perhaps the most important ques- tion in the case, that in view of the former declaration and opinions of this court, what is termed a process patent relates onl}^ to such as are produced by chemical action, or by the operation or application of some similar elemental action, and that such processes do not include methods or means which are effected by mere me- chanical combinations, and a part of the language used in Corning v. Burden, 15 How. 252, 15 L. Ed. 683, and Risdon, etc.. Locomotive Works "■. Medart, 158 U. S. 68, 39 L. Ed. 899. 15 S. Ct. 745, is seized upon in support of this contention. We have no disposition to question the de- cision in those cases." Expanded Metal Co. V. Bradford, 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 652. The patentability of processes is not restricted to those involving chemical or other similar elemental action, but an in- vention or discovery of a process or method involving mechanical operations and producing a new and useful result is within the scope of Rev. St. U. S., § 4886 (U. S. Comp. St. 1901, p. 3382). securing protection to the inventor of "any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof." Expanded Metal Co. z: Bradford, 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 652; General Fire- proofing Co. V. Expanded Metal Co., 212 U. S. 577, 53 L. Ed. 658, 29 S. Ct. 652, re- versing decree in Bradford v. Expanded Metal Co. (1906), 146 F. 984, 77 C. C. A. 230, and affirming d,ecree, Expanded Metal Co. v. General Fireproofing Co. (1908), 164 F. 849. The court in the above case said: "But it does not follow that a method of do- ing a thing, so clearly indicated that those skilled in the art can avail themselves of mechanism to carry it into operation, is not the subject matter of a valid patent." The contrary has been declared in de- cisions of the federal supreme court. A leading case is Cochrane v. Deener, 94 U. S. 780, 24 L. Ed. 139. in which the federal supreme court sustained a process patent involving mechanical operations. Ex- panded Metal Co. v. Bradford. 214 U. S. 366. 53 L. Ed. 1034, 29 S. Ct. 652. "That this court did not intend to limit process patents to those showing chemical action or similar elemental changes is shown by subsequent cases in this court. In Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 42 L. Ed. 1136, 18 S. Ct. 707, the opinion was written by the same eminent justice who wrote the opinion in Risdon, etc., Locomotive Works V. Medart, 158 U. S. 68, 39 L. Ed. 899, 15 S. Ct. 745. and, delivering the opinion of the court, he said: 'These cases, Risdon, etc.. Locomotive Works v. Medart, 158 U. S. 68, 39 L. Ed. 899, 15 S. Ct. 745, and Wicke z'. Ostrum, 103 U. S. 461, 26 L. Ed. 409, assume, although they do not ex- pressly decide, that a process, to be pat- entable, must involve a chemical or other similar elemental action; and it may be still regarded as an open question whether the patentability of process ex- tends beyond this class of inventions." " Expanded Metal Co. v. Bradford, 214 U. S. 366. 53 L. Ed. 1034, 29 S. Ct. 652. "In Leeds, etc., Co. v. Victor Talking Mach. Co., 213 U. S. 301, 318, 53 L. Ed. 805, 29 S. Ct. 495, this court said: 'A process and an apparatus by which it is performed are distinct things. They may be found in one patent; they may be made the subject of different patents.'" Expanded Metal Co. v. Bradford, 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 652. "Curtis, in his work on the Law of Patents, says: 'A process may be alto- gether new, whether the machinery by 938 \'ol. IX. PATENTS. 160-175 (6) Combinations. — A coniDinarion is a composition of elements, some of which may be old and others new, or all old or all new. It is, however, the combination that is the invention, and is as much a unit in contemplation of law as a single or noncomposite instrument.^'*^ B. Invention — 2. What Constitutes — b. Perfection of Conception and Representation in Physical Form. — See note 78. Knowledge of Inventor. — A combination patent for an article which, when constructed in accordance with the specifications, has proved a great commer- cial success, may not be held devoid of invention because the inventor may nov have known all of the forces which he had brought into operation."^* It is certainly not necessary that he understand or be able to state the scientific principles underlying his invention, and it is immaterial whether he can stand a successful examination as to the speculative ideas involved.'®'' m. Combination of Old Elements. — It is perfectly Avell settled that a new combination of elements, old in themselves, but which produce a new and use- ful result, entitles the inventor to the protection of a patent. ^'^ which it is carried on be new or old. A new process may l)e invented or dis- covered, which may require the use of a newly-invented machine. In such a case, if not the process and the machine were invented by the same person, he could take separate .patents for them. A new process may be carried on by the use of an old machine in a mode in which it was never used before * * *. In such a case, the patentability of the process in no- degree depends upon the characteristic principle of the machine, although ma- chinery is essential to the process, and although a particular machine may be required.''" Expanded ^letal Co. r. Brad- ford, 214 U. S. 3G6, 5.3 L. Ed. 1034, 29 S. Ct. 652. "In Robinson on Patents, vol. 1, § 167, it is said: 'While an art can not be prac- ticed except by means of physical agents, through which the force is brought in contact with or is directed toward its ob- ject, the existence of the art is not de- pendant on any of the special instruments employed. It is a legal, practical inven- tion in itself. Its essence remains un- changed, whatever variation takes place in its instruments, as long as the acts of which it is composed are properly per- formed.' " Expanded Metal Co. v. Brad- ford. 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 652. 160-64a. Combination defined. — Leeds, etc., Co. v. Victor Talking Machine Co., No. 2, 213 U. S. 325, 53 L. Ed. 816, 29 S. Ct. 503. 163-78. Perfection of conception, etc. — "He must, indeed, make such disclosure and description of his invention that it may be put into practice. In this he must be clear. He must not put forth a puz- zle for invention or experiment to solve, but the description is sufficient if those skilled in the art can understand it. This satisfies the law, which only requires as a condition of its protection that the world be given something new and that the world be taught how to use it. It is no concern of the world whether the principle upon which the new construc- tion acts be obvious or obscure, so that it inheres in the new construction." Diamond Rubber Co. t'. Consolidated Rubber Tire Co., 220 U. S. 428, 55 L. Ed. 527, 532. 31 S. Ct. 444. 163-78a. Knowledge of inventor. — Diamond Rubber Co. z-. Consolidated Rubber Tire Co., 220 U. S. 428. 55 L. Ed. 527. 31 S. Ct. 444. affirming 162 Fed. S92. 163-78b. Sufficiency of knowledge. — Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 55 L. Ed. 527, 31 S. Ct. 444, citing Andrews r. Cross, 19 Blatchf, 294, 8 Fed. 269; Fames z: Andrews, 122 U. S. 40, 55, 30 L. Ed. 1064, 7 S. Ct. 1073; St. Louis Stamping Co. f. Quinby, 4 Ban. & Ard. 192. Fed. Cas. No. 12,240, 16 Off. Gaz. 135; Pfeifer f. Dixon-Woods Co., 5 C. C. A. 148, 14 U. S. App. 245. 55 Fed. 390; Cleve- land Foundry Co. t'. Detroit Vapor Stove Co. (C. C. A. 6th C), 68 C. C. A. 233, 131 Fed. 853; Van Epps z'. United Box Board & Paper Co. (C. C. A. 2d C), 75 C. C. A. 77, 143 Fed. 869; Westmoreland Spe- cialty Co. z: Hogan (C. C. A. 3d C), 93 C. C. A. 31. 167 Fed. 327. Ignorance on the part of the patentee of a combination of the manner of the operation of the elements which he has combined will not readily be inferred. Diamond Rubber Co. r. Consolidated Rubber Tire Co.. 220 IJ. S. 42S. 55 L. Ed. 527, 31 S. Ct. 444. 175-5a. Combination of old elements. — Expanded :Metal Co. z: Bradford, 214 U. S. 366, 53 L. Ed. 1034, 29 S. Ct. 652, cit- ing Loom Co. z'. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177. .\ substantial improvement in the art of making expanded sheet metal, involv- ing patentable invention, is disclosed by the Golding patent 527,242, for a process 939 179-204 PATENTS, Vol. IX. 3. Evidence of Invention — b. General Use as Evidence of Invention. — The widespread commercial success of a patented device should be taken into consideration in determining the question of invention and the utility of a patented device may be attested by the litigation over it.^^* 0. Novelty and Anticipation — 1. Novelty — b. What Constitutes — (7) Combinations. — See note 32. 2. Anticipation — b. Ways in Which Patent May Be Anticipated — (1) Prior Patent — (b) Prior Foreign Patent. — See note 41. c. What Constitutes Anticipation — (10) Particular Kinds of Inventions — (d) Combinations. — See note 83. VI. Proceedings to Obtain Patent. A. Application — 1. Specification or Description of Invention — b. Necessity and Sufficiency of Description — (1) General Rule. — See note 69. Addressed to Those Skilled in Art. — See note 70. by which the metal is first simuhaneously cut and stretched so as to produce a series of half-diamond meshes, which are completed by a second similar operation, co-ordinating with the first, although the slitting and stretching of the sheet at the same time was not new. Expanded Metal Co. V. Bradford, 214 U. S. 366, 53 L. Ed. 1034. 29 S. Ct. 652. "To our minds, Golding's method shows that degree of ingenuity and usefulness which raises it above an improvement obvious to a mechanic skilled in the art, and entitled it to the merit of invention. Others working in the same field had not developed it, and the prior art does not suggest the combination of operations which is the merit of Golding's invention." Expanded Metal Co. r. Bradford, 214 U. S. 366. 53 L. Ed. 1034, 29 S. Ct. 652. 179-16a. Use as evidence of invention and utility. — Diamond Rubber Co. z'. Con- solidated Rubber Tire Co., 220 U. S. 428, 55 L. Ed. 527, 31 S. Ct. 444, affirming 162 Fed. 892. 181-32. Combinations. — "And we may say, in passing, the elements of a conibi- nation may be all old. In making a com- bination the inventor has the whole field of mechanics to draw from." Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 55 L. Ed. 527, 31 S. Ct. 444, citing Leeds, etc.. Co. r. Victor Talk- ing Mach. Co., 213 U. S. 301, 318, 53 L. Ed. 805. 29 S. Ct. 495. 182-41. Prior foreign patent.— The Dolan patent. No. 589,342, for a duplex acetylene gas burner of the Bunsen type, having a series of inclined air passages on the sides, is anticipated by the French patents to Bullier and Letang, which pro- vided for a mixture of air with the gas, sufficient to secure complete combustion of all that is burned near the point of emergence, but insufficient to burn all the gas. Steward r. American Lava Co.. 215 U. S. 161, 54 L. Ed. 139, 30 S. Ct. 46. 189-83. Combinations. — The grant pat- ent No. 554,675, for an improvement in rubber-tired wheels, consisting of a solid rubber tire, held in place in a flaring rim by the tension of two tightly drawn wires embedded in the rubber within the periphery of the flanges, which has al- most universally been accepted as the termination of the struggle for completely successful tire, a tire so constructed possessing the function of rising, falling, and reseating itself under lateral strain, involves patentable invention, and was not anticipated by prior patents covering com- binations of some of the same elements, but which do not possess the distinctive "tipping" function of the Grant tire, and hence failed of commercial success. Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 55 L. Ed. 527, 31 S. Ct. 444. 203-69. Sufficiency and definiteness of description. — A statement in the specifica- tions of the Dolan patent, No. 589,342, for a duplex acetylene gas burner or tip of the Bunsen type, having a series of in- clined air passages on the sides, that, if the burner were cut off, the general shape and condition of the flame would be the same, does not indicate with sufficient definiteness that the essence of the inven- tion is to have so short a chamber or cylinder as to prevent the mixing of the air taken into it, and to emit a current of gas surrounded by the greater part of such air as an envelop or film. Decrees, American Lava Co. v. Steward (1907), 155 F. 731, 84 C. C. A. 157, and American Lava Co. v. Kischberger, 155 F. 740, 84 C. C. A. 166, affirmed. Steward v. Ameri- can Lava Co., 215 U. S. 161, 54 L. Ed. 139, 30 S. Ct. 46. 204-70. Addressed to those skilled in art. — The failure to describe a complete mechanism in the specifications of a pat- ent for a process is not material if enough is disclosed to indicate to those skilled in such matters the mechanism whereby the method of the patent can be put into operation. Expanded Metal Co. z: Bradford, 214 U. S. 366, 53 L. Ed. 1034, 940 Vol. IX. PATENTS. 244-252 IX. Date and Duration. B. Duration — (2) Duration Limited by Foreign Patent. — All claims of a domestic patent do not necessarily expire with a foreign patent because of provisions of Rev. St. U. S., § 4887 (U. S. Comp. St. 1901, p. 3382), that "every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent," but only those embodied in the foreign patent.^^^ Expiration for Failure to Pay Fee. — Expiration of a Canadian patent by failure to pay the fee to keep it alive for the second 6 years of the 18-year term for which it was granted does not affect duration of a domestic patent under Rev. St. U. S., § 4887 (U. S. Comp. St. 1901, p. 3382), making such patents expire with foreign patents for the same invention. ^^"^ XII. Sales, Assignments, Mortgages and Licenses. A. Sales and Assignments of Patent Rights — 4. Coxtract of Sale or Assignment — b. Form and Requisites — (6) Compliance with State Statutes. — See note 37. 5. Rights and Liabilities of Transferee — b. Rights of Transferee — (2) What Passes to Transferee — (a) Title and Right to Control. — See note 44. 29 S. Cl. 652; General Fireproofing Co. r. Expanded Metal Co., 212 U. S. 577, 53 L. Ed. 658, 29 S. Ct. 652. Reversing decree in Bradford v. Expanded Metal Co. (1906), 146 F. 984, 77 C. C. A. 230, and affirming decree. Expanded Metal Co. v. General Fireproofing Co. (1908), 164 F. 849. 244-83a. All claims do not necessarily expire. — Leeds, etc., Co. f. Victor Talking IMach. Co., 213 U. S. 301, 53 L. Ed. 805, 29 S. Ct. 495. Expiration of foreign patents for sound reproducers or recorders does not. under Rev. St. U. S., § 4887 (U. 5. Comp. St. 1901, p. 3382), making domestic patents expire with foreign patents, affect dura- tion of the Berliner patent, No. 534,543, for sound-reproducing apparatus, so far as concerns claim 5, for a method, and claim 35, for a combination, though such recorder or reproducer is made the sub- ject of a claim of such patents. Leeds, etc.. Co. v. Victor Talking :Mach. Co., 213 U. S. 301, 53 L. Ed. 805, 29 S. Ct. 495. 244-83b. Expiration for failure to pay fee. — Leeds, etc.. Co. v. Victor Talking Mach. Co., 213 U. S. 301, 53 L. Ed. 805, 29 S. Ct. 495. 251-37. Application to merchants and dealers. — The exemption of merchants and dealers who sell patented things in the usual course of business from the opera- tion of Kirby's (Ark.) Dig., §§ 513-516, requiring a negotiable instrument taken in payment for a patented article to show on its face for what it was given or be void, does not render such statute repug- nant to U. S. Const., fourteenth amend- ment, as denying the equal protection of the laws. Ozan Lumber Co. z: Union County Nat. Bank, 207 U. S. 251, 52 L. Ed. 195, 28 S. Ct. 89. 252-44. Effect of unconditional sale.— "By a sale of a patented article subject to no conditions, the purchaser undeniably acquires the right to use the article for all the purposes of the patent, so long as it endures. He may use it where, when, and how he pleases, and may dispose of the same unlimited right to another." Henry z: Dick Co., 224 U. S. 1, 56 L Ed. 645, 32 S. Ct. 364. "By such an unconditional sale of the thing patented it is said to be 'no longer within the limits of the monopoly. It passes outside of it, and is no longer un- der the protection of the act of con- gress.'" Henry z: Dick Co., 224 U. S. 1, 56 L. Ed. 645, 32 S. Ct. 364. "This has long been the settled doctrine of this and all patent courts." Henry v. Dick Co., 224 U. S. 1. 56 L. Ed. 645, 32 S. Ct. 364, citing Mitchell v. Hawley, 16 Wall. 544, 21 L. Ed. 322; Livingston ' z/. Woodworth, 15 How. 546, 550, 14 L. Ed. 809; Adams v. Burke, 17 Wall. 453, 456, 21 L. Ed. 700; Keeler v. Standard Folding Bed Co., 157 U. S. 659, 666, 39 L. Ed. 848, 15 S. Ct. 738. "In the cases cited above, as well as in the leading case of Bloomer v. Mc- Quewan, 14 How. 539, 14 L. Ed. 532, the statement that a purchaser of a patented machine has an unlimited right to use it for all the purposes of the invention, so long as the identity of the machine is preserved, was made of one who bought unconditional!}-; that is, subject to no specified limitation upon his righf of use. The question of the effect of limitations upon the right of use arose, however, in Mitchell v. Hawley, 16 Wall. 544, 21 L Ed. 322, and there we find the distinction was deemed material and the effect de- 941 256-274 PATENTS. \o\. IX. (4) Right to Replace Worn Out Parts. — The license granted to a purchaser of a patented combination is to preser\-e its fitness for use so far as it may be affected by wear or breakage. Beyond this there is no Hcensc^^^a C. Licenses — 1. What Constitutes. — A Hcense is not an assignment of any interest in the patent. It is a mere permission granted by the patentee. It may be a Hcense to make, sell, and use, or it may be limited to any one of these separable rights. If it be a license to use, it operates only as a right to use without being liable as an infringer. If a licensee be sued, he can escape liability to the patentee for the use of his invention by showing that the use is within his license. But if his use be one prohibited by the license, the latter is of no avail as a defense. As a license passes no interest in the monopoly, it has been described as a mere waiver of the right to sue by the patentee.^^^ XIII. Infringement. A. What Constitutes — 2. Identity — a. Identity of Principle — (2) What Constitutes — (c) formal Variations — bb. JJ'hen Form Material Element of Patent. — See note 39. (e) Use of Equivalents — aa. General Rule. — The doctrine of equivalents may be invoked for other than pioneer patents, the range of equivalents de- pending upon and varying with the degree of invention. ^^^ bb. Range of Equivalents. — See note 57. Glared." Henry v. Dick Co., 224 U. S. 1, 56 L. Ed. 645, 32 S. Ct. 364. "An absolute and unconditional sale operates to pass the patented thing out- side the boundaries of the patent, because such a sale implies that the patentee con- sents that the purchaser may use the ma- chine so long as its identity is preserved. This implication arises, first, because a sale without reservation, of a machine whose value consists in its use, for a consideration, carries with it the pre- sumption that the right to use the particu- lar machine is to pass with it." Henry V. Dick Co.. 224 U. S. 1, 56 L. Ed. 645, 32 S. Ct. 364. "The rule and its reason is thus stated in Robinson on Patents, vol. 2, § 824: 'The sale must furthermore be uncondi- tional. Not only may the patentee im- pose conditions limiting the use of the patented article, upon his grantees and express licensees, but any person having the right to sell may, at the time of sale, restrict the use of his vendee within specific boimdaries of time or place or method, and these will then become the measure of the implied license arising from the sale.' " Henry z\ Dick Co., 224 U. S. ], 56 L. Ed. 645, 32 S. Ct. 364. 256-63a. To preserve fitness of combi- nation. — Leeds, etc., Co. v. Victor Talk- ing :\Iach. Co., 213 U. S. 301, 325. 53 L. Ed. 805, 29 S. Ct. 495. The sale of disc sound records which, though themselves unpatented, form an essential element of the combination covered by claims 5 and 35 of the Berliner patent No. 534,543, for sound- producing apparatus, with the intention that such disc be used in such patented combinations, can not be justified under the purchaser's right of repair and re- placement. Leeds, etc., Co. v. Victor Talking Mach. Co., 213 U. S. 301, 323, 53 L. Ed. 805, 29 S. Ct. 495. 258-75a. What constitutes. — Henry v. Dick Co., 224 U. S. 1, 56 L. Ed. 645, 32 S. Ct. 364. 270-39. Variations— Material.— The Brill patents, Xos. 627.898 and 627,900, for im- provements in car trucks, in which the only element of novelty, if any, is the sus- Dension of the semi-elliptic springs sup- porting the car body by spring or elastic links connected with the side frame of the truck by a pin having a universal ball- and-socket joint at the point of connec- tion, are not infringed by a device which does not use a ball and socket, but in- stead a rigid link, supported by a rel- atively unyielding spiral spring in the frame of the truck. Decree (1908), 30 .\pp. D. C. 255. afifirmed. Brill z: Washington R., etc.. Co., 215 LT. S. 527, 54 L. Ed. 311, 30 S. Ct. 177. 274-56a. Doctrine of equivalents. — Con- tinental Paper Bag Co. v. Eastern Paper Bas- Co.. 210 U. S. 405, 52 L. Ed. 1122, 28 S. Ct. 748. 274-57. Range of equivalents. — Concur- rent findings of the courts below that the Liddell patent Xo. 558.969, for an im- provement in paper bag machines, which combines a rotary cylinder with a form- ing plate oscillating about its rear edge upon the surface of the cylinder, is a broad invention, and is infringed by a ma- chine in which the surface of the cylinder is depressed away from the forming plate, while the patent adopts the device of causing the pivot or axis of the form- 942 Vol. IX. PATBXTS. 276-287 cc. JJliat Constitutes — (bb) Mechanical Equivalent. — See note 66. 4. Infringement oe Particular Kinds of Patents — d. Coinbinatiovs — (1) General Rule. — It seems that a true mechanical device, producing by the co-operation of its constituents the result specified and in the manner specified, is a valid combination,''*'^ and whoever uses it without permission is an in- fringer of it. Whoever contributes to such use is an infringer of it.'^^'*' And it can make no difference as to the infringement or noninfringement of a co.n- bination that one of its elements or all of its elements are unpaiented.^'''^ (2) Use of Less or More Elements than Used in First Combination — (a) Use of Less than All Elements of First Combination — bb. Substitution of Ele- ment for One Omitted — (bb) Equivalent for Omitted Element. — See note 1. 5. Contributory Infringement. — Whoever contributes to the use of a pat- ented combination without permission is an infringer of it.'^ It seems that the ing plate to yield away from the cylinder. will not be disturbed by the federal su- preme court on certiorari, as clearly er- roneous. Decree (190G), 150 F. 741, 80 C. C. A. 407, affirmed. Continental Pa- per Bag Co. V. Eastern Paper Bag Co., 210 U. S. 405, 52 L. Ed. 1122, 28 S. Ct. 748. 276-66. What constitutes mechanical equivalent. — The amended specification of the Dolan patent, No. 589,342, for a du- plex acetylene gas burner or tip of the Bunsen type, having a series of inclined air passages in the sides, which, for the first time, if at all, indicates as the es- sence of the invention so short a cham- ber or cylinder as to prevent the mixing of the air taken into it, and to emit the current of gas surrounded by the greater part of such air as an envelope or film, is void under Rev. St. U. S., § 4892 (U. S. Comp. St. 1901, p. 3384), because intro- ducing entirely new matter not sworn to, where the original application made no claim for a process, and disclosed no in- vention of a device. Decrees, American Lava Co. v. Steward (1907), 155 F. 731, 84 C. C. A. 157, and American Lava Co. v. Kirschberger, 155 F. 740, 84 C. C. A. 166, affirmed. Steward v. American Lava Co., 215 U. S. 161, 54 L. Ed. 139, 30 S. Ct. 46. 283-96a. Infringement of combination. — Leeds, etc., Co. v. Victor Talking Ala- chine Co., 213 U. S. 301, 53 L. Ed. 805, 29 S. Ct. 495. A combination, and not a function, of a machine, is embodied in claim 35 of the Berliner patent Xo. 534.543. for a "sound-reproducing apparatus consisting of a traveling tablet having a sound record formed thereon and a reproducing stylus shaped for engagement with said record, and free to be vibrated and pro- pelled by the same, substantially as de- scribed." Leeds, etc., Co. z: Victor Talk- ing Mach. Co., 213 U. S. 301, 53 L. Ed. 805, 29 S. Ct. 495. 283-96b. Contributory infringement. — Leeds, etc., Co. v. Victor Tall'in'-; .Mach. Co., 213 U. S. 325. 53 L. Ed. 816, 29_S. Ct. 503. See post, ''Contributory Infringe- ment," xin, A, 5. 283-96C. One or more elements un- patented. — Leeds, etc., Co :■. Victor Talk- ing Mach. Co., No. 2, 213 U. S. 325, 53 L. Ed. 816, 29 S. Ct. 503. "For instance, in the case at bar the issue between the parties would be ex- actly the same, even if the record disc were a patented article which petitioner had a liscense to use or to which re- spondent had no rights independant of his right to its use in the combination. In other words, the fact that the disc sold by the petitioner is unpatented does not effect the question involved except to give an appearance of a limitation of the rights of an owner of a Victor machine other than those which attach to him as a purchaser." Leeds, etc., Co. r. Victor Talking Mach. Co., No. 2, 213 U. S. 325, 53 L. Ed. 816. 29 S. Ct. 503. 285-1. Use of equivalent. — The claim of the De Bange patent, Xo. 301,220. for a device to prevent the escape of gas from breech-loading cannon, the essence of which is a "system of packing" which, by the force of the explosion of the powder, is expanded to mike a tight joint to pre- vent leakage of gas, should not be con- fined to the specific form of the elements described therein as the best means of carrying out the invention, so that a change in the covering of the packing, or the substitution of steel rings for brass, will avoid infringement. United States z\ Societe Anonyme, etc.. Cail, 224 U. S. 309, 56 L. Ed. 778, 32 S. Ct. 479. 2S7-7a. Contributory infrinsement. — Leeds, etc., Co. z: Victor Talking Ma- chine Co.. 213 U. S. 32."). 53 L. Ed. 816. 20 S. Ct. 50.^. The sale of ink to a purchaser of a Ro- tary mimeograph sold with a license re- striction that it could be used only vv'i;i the ink supplied by the patentee, with the expectation that the ink sold would be used in connection with such mimeograph, constitutes contributory infringement of 943 287-314 PATENTS. Vol. IX. doctrine of contributory infringement, which is conceded to exist, should not be extended beyond those articles which are either parts of a patented combina- tion or device, or which are produced for the sole purpose of being so used, and should not be applied to the staple articles of commerced" Defense of Purchaser's Right of Repair.— The sale of disc sound rec- ords which, though themselves unpatented, form an essential element of a combination covered by a patent with the intention that such disc be used in such patented combination, can not be justified under the purchaser's right of repair and replacement^'^ B. Remedies for Infringement — 11. Recovery of Damages, Profits or PENAI.TIES — b. Recovery of Profits in Suit in Equity — (2) Amount Recover- able — (b) Profits Must Be Fruits of Invention. — See note 45. (3) Evidence of Profits— (&) Burden of Proof — bb. Where Only Part of Profits Due to Use of Invention. — See note 61. 12. Judgment or Decree — d. Final Decree in Favor of Defendant. — A final decree of a federal circuit court in favor of defendant in a patent infringe- ment suit entitles him to continue the business of manufacturing and selling throughout the United States the alleged infringing article, free from all in- terference by the complainant by virtue of the patent alleged to have been infringed.'''-^ 16. Injunction against Infringement. — A prior adjudication of a federal court, sustaining the validity of the patent in suit, is a valid ground for grant- ing a preliminary injunction against infringement.'^'^^ the patent. Henry v. Dick Co., 224 U. S. 1, 56 L. Ed. 645, 32 S. Ct. 364. Evidence of notice of a license restric- tion as to the use of ink on a patented stencil duplicating machine, disclosed on the baseboard of each machine, is not suf- ficient to charge a corporation with in- fringement because of a sale of its own ink for use on such a machine, where it does not appear that it ever solicited an order for ink to be so used, although it may have filled a few such orders, or that it was ever notified by the manu- facturers of the rights which they claimed, or that anything which it did was con- sidered an infringement, and where none of the chief executive officers of the cor- poration had knowledge of this restric- tion. Judgment (1906), 145 F. 933, 76 C. C. A. 455, aftlrmed. Cortelyou v. Johnson & Co., 207 U. S. 196, 52 L. Ed. 167, 28 S. Ct. 105. 287-7b. Extent of doctrine. — Cortelyou V. Johnson & Co., 207 U. S. 196, 52 L. Ed. 167, 28 S. Ct. 105. 287-7C. Defense of purchaser's right of repair, — Leeds, etc., Co. v. Victor Talking Mach. Co., No. 2, 213 U. S. 325, 53 L. Ed. 816, 29 S. Ct. 503. 307-45. Profits must be fruits of inven- tion. — Such part only of the commingled profits as are attributed to the use of his invention can be recovered by the pat- entee in a suit against an infringer who has added noninfringing and valuable im- provements contributing to the profits. Westinghouse, Elect., etc., Co. v. Wagner, Elect., etc., Co., 225 U. S. 604, 56 L. Ed. 1222, 32 S. Ct. 691. 311-61. Where only part of profits due to use of invention. — A patentee suing to recover profits from an infringer who has added noninfringing and valuable im- provements discharges the burden resting upon him of showing what part of the commingled profits are attributable to the use of his invention by proving the ex- istence of such profits and the impossi- bility of accurately or approximately separating them from those arising out of defendant's additions, and the defendant must then carry the burden of such separation if he is to escape liability for the entire profits. Westinghouse, Elect., etc., Co. V. Wagner Elect., etc., Co., 225 U. S. 604, 56 L. Ed. 1222, 32 S. Ct. 691. 313-72a. Final decree in favor of de- fendant— Kessler V. Eldred, 206 U. S. 285, 51 L. Ed. 1065, 27 S. Ct. 611. Violation of right under decree. — De- fendant's rights under a final decree in his favor rendered by a federal circuit court in a patent infringement suit are violated by the action of the complainant therein in thereafter filing a bill against one of the former's customers for an alleged infringement of the patent on account of the use or sale of the same article passed upon in the prior suit. Kessler v. Eldred, 206 U. S. 285. 51 L. Ed. 1065. 27 S. Ct. 611. 314-77a. Injunction against infringe- ment. — Leeds, etc., Co. v. Victor Talking Mach. Co.. 213 U. S. 301, 53 L. Ed. 805, 29 S. Ct. 495, affirming 148 Fed. 1022. See ante, INJUNCTIONS, p. 657. 944 Vol. IX. PENALTIES AND FORFEITURES. 314-364 Nonuser of a patent for an improvement in paper bag machines, in order to save the expense of changing or altering the old machines, will not justify a court of equity in withholding injunctive relief against infringement.''^'^ PATENT TO LAND.— See post, Public Lands. As color of title, see ante, Limitation of Actions and Adverse Possession, p. 828. PAUPERS. — See the title Paupers, vol. 9, p. 318, and references there given. PAWN. — See post. Pledge and Collateral Security. PAY. — See ante, Army and Navy, p. 150; Clerks oe Court, p. 241, and like titles. PAYMENT.— See the title Payment, vol. 9, p. 319, and references there given. In addition, see ante, Bankruptcy, p. 168 ; Bills, Notes and Checks, p. 204; Courts, p. 398; Jurisdiction, p. 812; post, Pensions; Principal and Surety; Taxation. PAYMENT INTO COURT.— See the title Payment into Court, vol. 9, p. 350. and references there given. PEDDLER. — See references ante, under Haw^kers and PeddlErs, p. 617. PEDIGREE. — See the title Pedigree, vol. 9, p. 354, and references there given. PENALTIES AND FORFEITURES. IX. Power to Impose, Enforce and Dispose of Penalties and Forfei- tures, 945. XIV. Proceedings to Recover Penalties, 945. B. Nature of Proceedings, 945. CROSS REFERENCES. See the title Penalties and Forfeitures, vol. 9. p. Z'?? , and references there given. In addition, see ante, Jury, p. 813. IX. Power to Impose, Enforce and Dispose of Penalties and Forfeitures. The legislature has the power to enact penalties for the violation of statutes irrespective of the motives or knowledge of the party in commission of the ofifense.^"^ Penalties which are not authorized by law may not be inflicted by judicial authority.-"'' XIV. Proceedings to Recover Penalties. B. Nature of Proceedings. — It is settled law that a certain sum, or a sum 314-77b. Nonuser of patent. — Continen- forfeiture is incurred, notwithstanding tal Paper Bag Co. v. Eastern Paper Bag their ignorance. Such is also the case in Co., 210 U. S. 405, 52 L. Ed. 1122, 28 S. Ct. regard to many other fiscal, police, and 748. other laws and regulations, for the mere 364-27a. Power of legislature. — " 'Where violation .of which, irrespective of the mo- a statute commands that an act be done tives or knowledge of the party, certain or omitted, which, in the absence of such penalties are enacted; for the law, in statute, might have been done or omitted these cases, seems to bind the party to without culpability, ignorance of the fact know the facts and to oV>pv 7, 39. C. As Restricted by the Interstate Commerce Clause of the Constitu- tion — 1. Generally. — See ante, Interstate and Foreign Commerce, ante, p. 689, et seq. Distinct Powers — Must Stand Together.— See note 43. 2. Exclusion oe Dangerous and Infected Articles, Diseased Persons AND Animals, Paupers, Criminals, etc. — As to state regulation of the sale of gunpowder, of illuminating oils and fluids not testing up to a certain stand- ard, of impure and adulterated paints, etc., see post. "Application of Principles to Particular Business, Trade, Occupation, or Profession," VI, K, 5, et seq. And see ante. Interstate and Foreign Commerce, p. 689. D. As to Contract and Vested Rights — 1. As to Vested Rights. — See, generally, ante. Constitutional Law, p. 264. As to vested and property rights in franchises, special and exclusive privileges, etc., see ante. Constitutional, Law, p. 264; Due Process of Law, p. 475. As to \'ested or property right to import particular goods or commodities as against the right of the federal government to exclude the same, see ante. Interstate and Foreign Com- merce, p. 689. 3. A Continuing Power ; Can Not Be Bargained Away — a. Generally. —See notes 67, 68, 70, 7?>. 487-37. Constitutional limitations — Gen- eral supremacy of federal constitution and laws. — Definitions of the police power must be taken subject to the condition that the state can not, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land. Keller v. United States, 213 U. S. 138, 53 L. Ed. 737, 29 S. Ct._470; New Orleans Gas Co. v. Louisiana Light, etc., Co., 115 U. S. 650, 661, 29 L. Ed. 516, 6 S. Ct. 252; House v. Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234. 487-39. Conflict must be plain. — While it is the duty of the federal courts, if their jurisdiction be lawfully invoked, to see to it that the constitutional rights of the cit- izen are not infringed by the state, or by its authorized agents, they should not strike down an enactment or regulation adopted by the state under its police power, unless it be clear that the declara- tion of the public policy contained in the statute is plainlj'- in violation of the fed- eral constitution. Brodnax v. Missouri, 219 U. S. 285, 55 L. Ed. 219, 31 S. Ct. 238; Mutual Loan Co. v. Martell, 222 U. S. 225, 56 L. Ed. 175, 32 S. Ct. 74; McLean v. Ar- kansas, 211 U. S. 539, 53 L. Ed. 315, 29 S. Ct. 206; Chicago, etc., R. Co. v. McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. See, also, post, "Judicial Review," V, E, 2, d. 488-43. Distinct powers — Must stand together. — The principle that a state, upon its admission into the Union, is thereafter '.'.pon an equal footing with every oth?r 5^aic ■b.v.C haS full and complete jurisdic- tion over all persons and things within its liinits, except as it may be restrained by the provisions of the federal constitution or by its own constitution, and the prin- ciple, based on the express words of the constitution, that congress has power to regulate commerce with the Indian tribes, and that such power is superior and par- amount to the authority of any state within whose limits are Indian tribes, are fundamental and of equal dignity, and neither must be so enforced as to nullify or substantially impair the other. In reg- ulating commerce with Indian tribes con- gress must have regard to the general au- thority which the state has over all per- sons and things witliin its jurisdiction. So, the authority of the state can not be so exerted as to impair the power of con- gress to regulate commerce with the In- dian tribes. Dick v. United States, 208 U. S. 340, 52 L. Ed. 520, 525, 28 S. Ct. 399. 494-67. Police power can not be bar- gained away. — The right to exercise the police power is a continuing one; it can not be contracted away; and a require- ment that a company or individual com- ply with reasonable police regulations without compensation is a legitimate ex- ercise of the power, and not in violation of the constitutional inhibition against the impairment of the obligation of con- tracts. In New York, etc., R. Co. v. Bris- tol, 151 U. S; 556, 567, 38 L. Ed. 269, 14 S. Ct. 437; Northern Pac. R. Co. v. Duluth, 208 U. S. 583, 52 L- Ed. 630, 28 S. Ct. 341. See, also, ante, IMPAIRMENT OF OB- LIGATION OF CONTRACTS, p. 624. Not restricted by the express guaranties 962 Vol. IX. POLICE POWER. 498-499 b. Limitations of Doctrine — (2) Doctrine Not Universally True as to Mat- ters Embraced zcitJiin the Largest Definition of the Police Poxver. — Grants of Exclusive Privileges. — As to franchises and special and exclusive privileges, see ante. Constitutional Law, p. 264. (3) But Even Charter and Contract Rights Subject to Police Regulation. — See ante, "Generally," \, D, 3, a. As to the operation of such regulations or as to contract and property rights. — It is thoroughly established that the inhibitions of the constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process, or of the equal pro- tection of the laws, by the states, are not violated by the legitimate exercise of leg- islative power in securing the public safety, health, and morals. Northern Pac. R. Co. V. Duluth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341. See, also, ante, IM- P A I R M E N T OF OBLIGATION OF CONTRACTS, p. 624. And see post, "As Restricted by the Fourteenth Amend- ment,"' V, E; "Exercise of Power Not Hampered by Obligation to Make Com- pensation for Injuries Sustained," VI, A, 3. 498-68. Immaterial that alleged con- tract is in form of corporate charter. — The doctrine that a corporate charter is a contract which the constitution of the United States protects against impairment by subsequent state legislation is ever limited in the area of its operation by the equally well settled principle that a legis- lature can neither bargain away the police power nor in any wise withdraw from its successors the power to take appropriate measures to guard the safety, health, and morals of all who may be within their ju- risdiction. Texas, etc., R. Co. v. Miller, 221 U. S. 408, 55 L. Ed. 789, 31 S. Ct. 534; Beer Co. V. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036; Stone v. Missis- sippi, 101 U. S. 814, 25 L. Ed. 1079; Doug- las V. Kentucky, 168 U. S. 488, 42 L. Ed. 553, 18 S. Ct. 199. See, also, post, "Regu- lation of Courts; Jurisdiction, Forms of Procedure, Remedies, Defenses, Measure of Damages, etc.," VI, B. The charter right to carry on a particu- lar business does not operate to deprive the state of its lawful police authority, and therefore a franchise to carry on such business is inherently qualified by the duty to execute the charter powers con- formably to such reasonable police regula- tions as might thereafter be adopted in the interest of the public welfare. Ham- mond Packing Co. v. Arkansas, 212 U. S. 322, 345, 53 L Ed. 530, 29 S. Ct. 370. Where it is not disputed that the state, under its constitution has a reserve power to repeal, alter and amend charters granted by it, the existence of the reserve power leaves no semblance of ground for the indulgence of the assumption that the franchise to conduct the business implies the right to conduct it free from the re- strictions of lawfully imposed regulations. The claim of an irrepealable contract can not be predicated upon a contract which is repealable. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 345, 53 L. Ed. 530, 29 S. Ct. 370; Citizens' Sav. Bank v. Owensboro, 173 U. S. 636, 644, 43 L Ed. 840. Charter rights of stage company as guaranteeing right to display advertise- ments in or upon stages. — See ante, DUE PROCESS OF LAW, p. 475; IMPAIR- MENT OF OBLIGATION OF COX- TRACTS, p. 624. 498-70. As to powers exercised by mu- nicipal and other public corporations. — See, as to franchises and special privi- leges, ante, CONSTITUTIONAL L.\W, p. 264: DUE PROCESS OF LAW, p. 475-, IMPAIRMENT OF OBLIGATION OF CONTRACTS, p. 624. 499-73. Contracts between private per- sons subject to the police power. — One whose rights, such as they are, are subject to state restriction, can not remove them from the power of the state by making a contract about them. The contract will carry with it the infirmity of the subject matler. Hudson County Water Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529; Knoxville Water Co. v. Knox- ville, 189 U. S. 434, 438, 47 L. Ed. 887, 23 S. Ct. 531; Manigault v. Springs, 199 U. S. 473, 480, 50 L. Ed. 274, 26 S. Ct. 127; Cal- der V. Attorney General, 218 U. S. 591, 54 L Ed. 1163, 31 S. Ct. 122. Operation as ex post facto laws. — See ante. CONSTITUTIONAL LAW, p. 264. As a deprivation of liberty or property without due process. — See ante, DUE PROCESS OF LAW, p. 475. Regulations of commerce affecting ex- isting contracts. — As to federal regula- tions of interstate commerce invalidating existing contracts and prohibiting the making of future contracts opposed to the policv of such resulations. see ante. IN- TERSTATE AND FOREIGN COM- • :\IFRCE, p. 689. Contract to divert waters of stream into another state. — The obligations of a con- tract to divert the waters of the Passaic river into another state, for use therein, are not unconstitutionally impaired by the enactment, in the exercise of the po- lice power, of Laws N. J. 1905, p. 461, c. 238, under which such a diversion of water beyond the state is forbidden. Decree, McCarter v. Hudson County Water Co. 963 499 POLICE POWER. Vol. IX. ex post facto laws, see ante, Constitutional Law, p. 264. As to the depriva- tion of liberty or property without due process of law, see ante, DuK Process OF Law, p. 475. As to federal regulations of interstate commerce invalidating existing contracts and prohibiting the making of future contracts opposed to the policy of such regulations, see ante. Interstate and Foreign Commerce. p. 689. As to vested and property rights under franchises, special and exclu- sive privileges, etc., see ante, Constitutional Law, p. 264; Corporations, p. 381 ; Due Process of Law, p. 475. As to right of a corporation chartered to (1906), 65 A. 489. 70 N. J. Eq. 695, affirmed. ?Iudson County Water Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. Contracts and obligations of corpora- tions. — A corporation, whose charter is held subject to a reserved right in the state to repeal the same, can not, by mak- ing a contract or incurring a debt, prevent the state from exercising its reserved power. Persons contracting with it con- tract subject, not paramount, to the pro- viso for repeal, and can not get rid of the infirmity inherent in the corporation. They contracted subject, not paramount, to the proviso, for repeal, as shown by a long line of cases. Calder v. Attorney General, 218 U. S. 591, 54 L. Ed. 1163, 31 S. Ct. 122; citing Greenwood v. Freight Co., 105 U. S. 13, 26 L."Ed. 961; Bridge Co. V. United States. 105 U. S. 470, 26 L. Ed. 1143; Chicago Life Ins. Co. v. Needles, 113 U. S. 574. 28 L. Ed. 1084; Monongahela Nav. Co. V. United States, 148 U. S. 312. 340, 37 L. Ed. 463, 13 S. Ct. 622; New Or- leans Waterworks Co. v. Louisiana, 185 U. S. 336, 354, 46 L. Ed. 936, 22 S. Ct. 691; Knoxville Water Co. v. Knoxville, 189 U. S. 434, 438, 47 L. Ed. 887, 23 S. Ct. 531; Manigault v. Springs, 199 U. S. 473, 480, 50 L. Ed. 274, 26 S. Ct. 127. The bonded indebtedness of a corpora- tion is subject, not paramount, to the res- ervation in the corporate charter of the power to repeal. Calder v. Attorney Gen- eral, 218 U. S. 591, 54 L. Ed. 1163, 31 S. Ct. 1 22. Same — Existence of unexpired fran- chise. — The existence of an unexpired franchise granted by a municipality to a waterworks company, which is included in the company's bonded debt, did not prevent the exercise, by Mich. Local Acts 3 905, Act No. 492 of the state's reserved right to repeal the company's charter, un- der which the corporate directors may be ousted from acting as a body corpoTate under the corporate name. Calder v. At- torney General, 218 U. S. 591, 54 L. Ed. 1163. 31 S. Ct. 122. If the city gave the privilege of using the streets to the corporation forever, it could not enlarge the right of the corpo- ration to continue in existence as against the reserved right of the sovereign power. Calder v. Attorney General, 218 U. S. 591, 54 L. Ed. 1163, 31 S. Ct. 122. The mere fact that a contract may ex- tend beyond the term of the life of a cor- poration does not destroy it. This prin- ciple was recognized in Detroit v. Detroit, etc.. St. R. Co., 184 U. S. 368, 46 L. Ed. 592. 22 S. Ct. 410, in which it was held that a city ordinance granting the use of the streets of the city for a term which would extend the grant for sixteen years beyond the life of the corporation did not invali- date it. It was held that the limitation upon the corporate life of the company did not prevent it from taking franchises, or other property, the title to which would not expire with the corporation itself; and further, that, at the end of its corpo- rate life, if such property were still in ex- istence, it would be an asset divisible among the shareholders after the payment of debts, or it might, if assignable, be transferred to any other person or com- pany competent to hold it. Minneapolis r. Minneapolis. St. R. Co.. 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. Regulations affecting contracts between railroads with respect to construction and maintenance of crossings. — A contract be- tween two intersecting railway companies, imposing upon the junior road the duty of constructing and properly maintaining the physical crossing of the two roads, and providing and maintaining sema- phores or other signals, and the requisite watchman to take charge of and operate the same, is not unconstitutionally im- paired by a subsequent order of the state railroad commission, directing the instal- lation and use of an interlocking plant at such crossing, and apportioning betv.een the two companies the expense of execut- ing the order. Grand Trunk, etc., R. Co. V. Railroad Conim.. 221 U. S. 400, 55 L. Ed. 786, 31 S. Ct. 537, affirming judgment (1907) Same v. Hunt, 81 N. E. 524, 40 Ind. App. 168. "We conclude," says the court, "as did the state court, that the contract does not eml)race the expense which the order en- tails, and therefore that the order does not, by apportioning that expense, impair the obligation ot the contract. But to avoid misapprehension that otherwise might arise, we deem it well to observe that we do not, by what is here said, sug- gest or imply that the contract, if its terms were broad enough to include the expense in question, would be an obstacle to the apportionment of that expense under the 964 A'ol. IX. POLICE POWER. 505-509 operate a stage line to display advertisements in or upon its coaches, see ante, Due Process of Law, p. 475 ; Impairmext of Obligatiox of Contracts, p. 624. E. As Restricted by the Fourteenth Amendment — 1. Fourteenth Amendment Xot Designed to Interfere with Legitimate Exercise of the Police Power.— See notes 86, 87, 88, 89. 2. Respects Wherein Police Power Is Restricted by Fourteenth Amendment — c. Regulations Must Be Reasonable and Bona Fide, Having Some Substantial Relation to Ostensible Object, etc. — See notes 95, 96, 97. state statute." Grand Trunk, etc., R. Co. r. Railroad Comm., 221 U. S. 400, 55 L. Ed. 786, 31 S. Ct. 537. See Chicago, etc., R. Co. V. Omaha, 170 U. S. 57, 74, 42 L. Ed. 948, 18 S. Ct. 513; New York, etc., R. Co. V. Bristol, 151 U. S. 556. 567, 38 L. Ed. 260. 14 S. Ct. 437. Regulations providing for the escheat- ing of savings bank deposits where depos- itors absent and unheard of. — The obliga- tion of the contract between a savings bank and its depositor is not unconstitu- tionally impaired by Laws ^lass. 1907, c. 340, providing that deposits which have remained inactive and unclaimed for thirty years, where the claimant is unknown or the depositor can not be found, shall be paid to the treasurer and receiver general, to be held by him' as trustee for the true owner or his legal representatives. Prov- ident Institution r. Malone, S21 U. S. 660, 55 L. Ed. 899, 31 S. Ct. 661. affirming judg- ment ^Malone i\ Provident Institution for Savings in Boston, 201 ^lass. 23. 86 X. E. 912. 505-86. Police power as restricted by the fourteenth amendment. — Neither the fourteenth amendment, broad and com- prehensive as it is. nor any other amend- ment was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, educa- tion, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. Keller t'. United States, 213 U. S. 138. 53 L. Ed. 737, 29 S. Ct. 470; Northern Pac. R. Co. v. Du- luth, 208 U. S. 583, 52 L. Ed. 630, 28 S. Ct. 341. See, also, ante, "Generally." V, D, 3, a; post, '"Exercise of Power Xot Hamp- ered by Obligation to Make Compensa- tion for Injuries Sustained," VI. A, 3. See, also, ante, DUE PROCESS OF LAW. p. 475. 505-87. Possession and enjoyment' of all rights subject to reasonable regulation — Not hampered by obligation to make compensation. — See ante, "Generally," V. D, 3, a; post, ''Exercise of Power Not Hampered by Obligation to Make Com- pensation for Injuries Sustained." VI. A. 3. 506-88. Liberty subject to reasonable restraint.— See ante, DUE PROCESS OF LAW, p. 475. 506-89. Eflfect of equal protection clause. — See ante, "Generallv," V, D, 3. a. See, also, ante, CONSTITUTIONAL LAW, p. 264. 507-95. No precise rule. — See post, "Ju- dicial Review." V. E, 2, d. 508-96. Regulations must be reasonable — Not to go beyond the necessities of the case, etc. — Statutes passed under the ex- ercise of so-called police power, must have some fair tendency to accomplish, or aid in the accomplishment of, some purpose for which the legislature may u-se the power. If the statutes are not of that kind, then their passage can not be justi- fied under that power. Welch v. Swasey, 214 U. S. 91, 53 L. Ed. 923, 929, 29 S. Ct. 567. If the means emploj-ed. pursuant to the statute, have no real substantial relation to a public object which government can accomplish, if the statutes are arbitrary and unreasonable, and beyond the necessi- ties of the case, the courts wnll declare their invalidit}'. Welch r'. Swasey. 214 U. S. 91, 53 L. Ed. 923, 929, 29 S. Ct. 567; House f. :\Iayes, 219 U. S. 270, 55 L. Ed. 213. 31 S. Ct. 234. 509-97. Regulations may be framed to meet particular needs of community. — In a sense, the police power is but another name for the powder of government; and a contention that a particular exercise of it offends the due process clause of the constitution is apt to be very intangible to a precise consideration and answer. Certain general principles, however, must be taken for granted. It is certainly the province of the state, by its legislature, to adopt such policy as to it seems best. There are constitutional limitations, of course, but these allow a very comprehen- sive range of judgment. Legislation can not be judged by theoretical standards. It must be tested by the concrete condi- tions which induced it. Mutual Loan Co. :. Martell. 222 U. S. 225, 56 L. Ed. 175, 32 S. Ct. 74. _ The principle was thus stated in Mc- Lean z: Arkansas. 211 U. S. 539, 548, 53 L. Ed. 315, 29 S. Ct. 206: The legislature, be- ing familiar with local conditions, is, pri- marily, the judge of the necessity of such enactments. The mere fact that a court may differ with their legislature in its views of public polic}"-, or that judges may 965 509-511 POLICE POWER. Vol. IX. d. Judicial Rez'ieu'.—See notes 98, 99, 2, 3, 4, 6. hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power. If there existed a condition of affairs con- cerning which the legislature of the state, exercising its conceded right to enact laws for the protection of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference with the right to contract or carry on business, and having no just relation to the protection of the public within the scope of legislative power, the act must fail. Chicago, etc., R. Co. V. McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. Accord, Brodnax v. Missouri, 219 U. S. 285, 55 L. Ed. 219, 31 S. Ct. 238; JNIurphy v. California, 225 U. S. 623, 56 L. Ed. 1229, 32 S. Ct. 697; Laurel Hill Cemetery f. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301; Welch v. Swasey, 214 U. S. 91, 53 L. Ed. 923. 29 S. Ct. 567. See, also, ante, CONSTITU- TIONAL LAW, p. 264; DUE PROCESS OF LAW, p. 475. The extent to which legislation may modify and restrict the uses of propertj'^ consistently v/ith the constitution is not a question for pure abstract theory alone. Tradition and the habits of the community- count for more than logic. Laurel Hill Cemetery z'. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. In questions of this kind great caution must be used in overruling the decision of the local authorities, or in allowing it to be overruled. Laurel Hill Cemetery v. San Francisco. 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. 509-98. Judicial review.— That the leg- islature of the state is not the final judge of the limitations of the police power, and that such enactments are subject to the scrutiny of the courts, and will be set aside when found to be unwarranted and arbi- trary interferences with rights protected by the constitution in carrying on a law- ful business or making contracts for the use and enjoyment of property, is well settled by the decisions of the federal su- preme court Silz f. Hesterberg. 211 U. S. 31, 53 L. Ed. 75. 29 S. Ct. 10; Lawton r. Steele, 152 U. S. 133, 137, 38 L. Ed. 385. 14 S. Ct. 499; Holden v. Hardy, 169 U. S. 366, 42 L. Ed. 780, 18 S. Ct. 383; Dobbins z: Los Angeles, 195 U. S. 223, 236, 49 L. Ed. 169, 25 S. Ct. 18. See. also, ante, "As be- tween the Legislative and Judicial De- partments," II, B; "Generally, as to the Supremacy of the Federal Constitution and Laws," V, A. It is true that the police power of the state is not unlimited, and is subject to judicial review; and, when exerted in an arbitrary or oppressive manner, such laws may be annulled as violative of rignts pro- tected by the constitution. While the courts can set aside legislative enactments upon this ground, the principles upon which such interference is warranted is as well settled as is the right of judicial interference itself. McLean t: Arkansas, 211 U. S. 539, 53 L. Ed. 315, 29 S. Ct. 206. 509-99. How constitutionality de- termined — Courts not concluded by dec- laration as to purpose of act. — Bailey v. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. See, also, ante, CONSTITU- TIONAL LAW, p. 264; DUE PROCESS OF LAW, p. 475. 510-2. Power of court to be exercised with caution. — McLean v. Arkansas, 211 U. S. 539, 53 L. Ed. 315, 29 S. Ct. 206; Chicago, etc., R. Co. r. McGuire. 219* U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259; Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 281, 53 L. Ed. 176, 29 S. Ct. 50; Lemieux v. Young, 211 U. S. 489. 53 L. Ed. 295, 29 S. Ct. 174; Williams v. Ar- kansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493; Laurel Hill Cemetery Co. z\ San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. See, also, ante, "Generally, as to the Supremacy of the Federal Consti- tution and Laws," V. A. 511-3. Legislature permitted a wide dis- cretion — Presumption in favor of validity. — In questions of this character the leg- islature, being familiar with local condi- tions, is invested with a wide discretion, not only in the choice of subjects to be regulated, but as to the character of the regulations required for any particular subject. The presumption is alwaj-s in favor of the validity of the statute, and where the subject to v.^hich it relates is clearly within the police powers of the state, the statute can not be held to be repugnant to the due process or any other clause of the fourteenth amendment, because of the nature or character of the regulations which the statute embodies, unless it clearly appears that those regu- lations are unconstitutional beyond all reasonable relation to the subject to which they are applied so as to amount to mere arbitrary usurpation of power. Lemieux v. Young, 211 U. S. 489, 496. 53 L. Ed. 295, 29 S. Ct. 174; Booth v. Illinois, 184 U. S. 425. 46 L. Ed. 623, 22 S. Ct. 425; Williams v. Arkansas, 217 U. S. 79. 54 L. Ed. 673, 30 S. Ct. 493; Laurel Hill Ceme- tery Co. V. San Francisco. 216 U. S. 358, 54 "L. Ed. 515, 30 S. Ct. 301; McLean z: Arkansas, 211 U. S. 539, 548, 53 L. Ed. 315, 29 S. Ct. 206; Chicago, etc., R. Co. v. McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259: Home Tel., etc., Co. z: Los 966 Vol. IX. POLICE POn ER. 511-512 VI. Application of the Police Power to Particular Subjects. A. Regulations Affecting Property — 2. Regulatiox of the Use and En- joyment OF Property. — Tenement Houses. — See post, "Public Health," VI, J, et seq. Use of Property for Cemetery Purposes. — See post, "Public Health," \*I, J, et seq. Use of Property for Advertising Purposes. — As to the constitutional Angeles. 211 U. S. 265, 281, 53 L. Ed. 170, 29 S. Ct. 50. Delusive exactness not required. — '"Classitication must have relation to the purpose of the legislature. But logical appropriateness of the inclusion or ex- clusion of objects or persons is not re- quired. A classification may not be merelj' arbitrary, but necessarily there must be great freedom of discretion, even though it result in 'ill-advised, unequal, and op- pressive legislation.'" Heath, etc., Mfg. Co. r. Worst, 20T U. S. 338, 52 L. Ed. 236, 244, 28 S. Ct. 114. Exact wisdom and nice adaptation of remedies are not required by the four- teenth amendment, nor the crudeness nor the impolicy nor even the injustice of state lawrs redressed by it. Heath, etc., Mfg. Co. V. Worst, 207 U. S. 338. 52 L. Ed. 236. 244, 28 S. Ct. 114. Not invalid because it may result in raising revenue. — Phillips v. Mobile, 208 U. S. 472. 52_L._Ed. 578, 28 S. Ct. 370. Mere possibility of evil or hardship not sufficient to mvalidate statute. — See ante. CONSTITUTIONAL LAW. p. 264: DUE PROCESS OF LAW, p. 475. 511-4. Courts not to pass upon mere policy or expediency. — Although there ma}' be room for controversy as to whether a statute is or was necessary, yet, if it can not be said that it is so un- reasonable as to justify the court in ad- Judging that it is merely an arbitrary ex- ercise of power and not germane to the objects which the said legislature evi- dently had in view, it is a valid enactment and can not be declared unconstitutional by the cotirts. Much may be done by a state under its police power which many may regard as an unwise exertion of gov- ernmental authority. But the federal courts have no power to overthrow such local legislation, simph' because they do not approve it, or because the}' deem it unwise or inexpedient. And although the means employed by the state to accom- plish an object which it is entitled to ac- complish, may be deemed unwise and in- expedient and not the best or most ef- fective which might have been employed, they will not be condemned or disre- garded by the courts if they have a real relation to that obiect. Chicago, etc., R. Co. V. Arkansas, 219 U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275; Brodnax v. Missouri, 219 U. S. 285, 55 L. Ed. 219, 31 S. Ct. 238; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 L. Ed. 453. 29 S. Cf. 270; Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 281, 53 L. Ed. 176, 29 S. Ct. 50; Mc- Lean V. Arkansas. 211 U. S. 539, 53 L. Ed. 315, 29 S. Ct. 206. See, also, ante, CONSTITUTIONAL LAW, p. 264. It is with the legislature of the state to devise the means to be employed to such ends, taking care always that the means devised do not go beyond the necessities of the case, that they have some real or substantial relation to the objects sought to be accomplished, and are not incon- sistent with its own constitution or the constitution of the United States. House z\ Mayes, 219 U. S. 270, 55 L. Ed. 213, 31 S. Ct. 234: Welch v. Swasey, 214 U. S. 91. 53 L. Ed. 923, 929, 29 S. Ct. 567. The legislattire, being familiar with lo- cal conditions, is primarily the judge of the necessity of police enactments. The mere fact that a court may differ with the legislature in its views of public policy, or that judges may hold views, incon- sistent with the propriety of the legisla- tion in question, afifords no grounds for judicial interference, unless the act in question is unmistakably and palpably in excess of legislative power. Williams v. Arkansas, 217 U. S. 79. 54 L. Ed. 673, 30 S. Ct. 493; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358. 54 L. Ed. 515, 30 S. Ct. 301; Jacobson v. Massachusetts, 197 U. S. 11. 49 L. Ed. 643, 25 S. Ct. 358. If there exists a condition of affairs concerning which the legislature of the state, exercising its conceded right to enact laws for the protection of the health, safety or welfare of the people, might pass the law, it must be sustained; if such action was arbitrary interference with the right to contract or carry on business, and having no just relation to the protection of the public within the scope of legislative power, the act must fail. McLean z'. Arkansas. 211 U. S. 539, 548. 53 L. Ed. 315, 29 S. Ct. 206. Mere possibility of evil or hardship not sufficient to invalidate statute. — See ante. CONSTITUTION.\L LAW, p. 264; DUE PROCESS OF LAW, p. 475. 512-6. No universal rule — Question in each case. — T!ie validity of a police regu- lation must depend upon the circum- stances of each case and the character of the regulation, whether arl)itrar3' or rea- sonable, and whether really designed to 967 513 POLICE POJVER. Vol. IX. right of a stage company to display advertisements in or upon its vehicles, see ante, Constitutional Law, p. 264; Due Process oe Law, p. 475. See, also, post, "Application of Principles to Particular Business, Trade, Occupation or Profession," VI, K, 5, et seq. 3. Exercise oe Power Not Hampered by Obligation to ]\Iake Compen- sation EOR Injuries Sustained. — See note 8. 4. As TO THE Regulation and Control of Contract and Charter Rights. — See ante, "Generally," V, D, 3, a; "But Even Charter and Contract Rights Subject to Police Regulation," V, D. 3, b, (3). As to whether such regulations are within the constitutional prohibition against ex post facto laws, see ante. Constitutional Law, p. 264. As to the deprivation of liberty or property, see ■ante, Due Process of Law, p. 475. As to federal regulations of interstate commerce invalidating existing contracts and prohibiting the making of future contracts opposed to the policy of such regulations, see ante, Interstate and Foreign Commerce, p. 689. As to the constitutionality of an ordinance forbid- ding a stage company from displaying advertisements for hire in or upon its stages in use upon certain streets, see ante, Due Process of Law, p. 475. See, also, post, "Application of Principles to Particular Business, Trade, Occupa- tion or Profession," VI, K, 5, et seq. 5. As to Contracts between Individuals. — See ante, "As to the Regula- tion and Control of Contract and Charter Rights," \^I, A, 4, and references there given. 6. Limiting Height of Buildings. — Regulations with respect to the height of buildings and in regard to their mode of construction in cities, made by leg- islative enactment for the safety, comfort, or convenience of the people, and for the benefit of property owners generally, are valid if the height and condi- tions provided for can be plainly seen not to be unreasonable or inappropriate.'^'* 7. Uncompensated Removal of Tracks, Pipes, Bridges, Tunnels, Pav- ing OF Tracks, etc. — See ante. Bridges, p. 211; Constitutional Law, p. accomplish a legitimate public purpose. 513-8a. Limiting height of buildings. — - Mutual Loan Co. v. Martell, 222 U. S. Welch r. Swasey, 214 U. S. Ul, .53 L. Ed. 225, 56 L. Ed. 175, 32 S. Ct. 7-t; Chicago, 923, 29 S. Ct. 567, affirming 193 Mass. 364, etc., R. Co. V. McGuire, 219 U. S. 549, 55 79 N. E. 745, 118 Am. St. Rep. 523. L. Ed. 328, 31 S. Ct. 259. The disci imination or classification With regard to the police power, as made between the commercial and resi- elsewhere in the law, lines are pricked out dential sections of Boston, by Mass. Pub. by the gradual approach and contact of Acts 1904, chap. 333, and Acts 1905, chap, decisions on the opposing sides. Noble 383, limiting the maximum height of build- State Bank t'. Haskell, 219 U. S. 104, 55 ings in the commercial district to 125 L. Ed. 112, 31 S. Ct. 186, followed in feet, and the residential districts to from Shallenberger v. First State Bank, 219 U. 80 to 100 feet, will not, in the face of a S. 114. 55 L. Ed. 117, 31 S. Ct. 189; Hud- decision of the highest state court, up- don County Water Co. v. McCarter, 209 holding such legislation, as passed in the U. S. 349, '355, 52 L. Ed. 828, 28 S. Ct. exercise of the police pov,'er, be held so 529. unreasonable as to deprive the owner of 513-8. Not hampered by obligation to property in the residential section of its make compensation for injuries sustained. profitable use without justification, and • — The states have the power to modify hence to take his property without due and cut down property rights to a certain process of law unless compensation be limited extent without compensation, for given him for such invasion of his rights, public purposes, as a necessary incident even though jesthetic considerations may of government, the power commonly have entered into the reasons fot the pas- called the police power. Missouri Pac. sage of such enactments. Welch v. R. Co. V. Nebraska, 217 U. S. 196, 54 L. Swasey, 214 U. S. 91, 53 L. Ed. 923, 29 S. Ed. 727, 30 S. Ct. 461. See, also, ante, Ct. 567, affirming 193 Mass. 364, 79 N. E. "Generallv," V, D, 3, a; "Fourteenth 745, 118 Am. St. Rep. 523. See, also, ante, Amendment Not Desired to Interfere with CONSTITUTIONAL LAW, p. 264. Legitimate Exercise of the Police Power,'' V, E, 1. 968 Vol. IX. POLICE POWER. 514 264; Due Process of Law, p. 475; Interstate and Foreign Commerce,, p. 689; Navigable Waters, p. 914. 8. Destruction oe Property in the Interest oe Public Safety, or Prop- erty Kept, Sold or Used in Violation of Law. — See ante, Due Process of Law, p. 475. B. Regulation of Courts; Jurisdiction, Forms of Procedure, Reme- dies, Defenses, Measure of Damages, etc. — 1. In General. — See, gen- erally, ante, Constitutional Law, p. 264 ; Due Process of Law, p. 475. As to the powers of a territorial legislature, see ante, Constitutional Law, p. 264. As to the power of the state to prescribe the evidence receivable in its courts and the effect thereof, see ante, Constitutional Law. p. 264; Due Process of Law, p. 475 ; Evidence, p. 558. As to the power of the state to create statutory and prima facie presumptions, see ante, Constitutional Law, p. 264. 2. Torts, Actions, Damages, etc. — See, generally, ante. Constitutional Law, p. 264; Death by Wrongful Act, p. 456; Due Process of Law, p. 475 ; Interstate and Foreign Commerce, p. 689. See, also, post, "Regulation of the Relation of blaster and Servant; Protection of Employees, etc.," VI, K, 4, k, et seq. As to the powers of territorial legislatures, see ante. Constitu- tional Law, p. 264. Matters Not Actionable at Common Law. — "It is a general principle of our law tliat there is no individual liability for an act which ordinary human care and foresight could" not guard against. It is also a general principle of the same law that a loss from any cause purely accidental must rest where it chances to fall. But behind and above these general principles which the law lecognizes as ordinarily prevailing, there lies the legislative power, which, in the absence of organic restraint, may, for the general welfare of society, impose obligations and responsibilities otherwise nonexistent.^'"^ Same — Liability of Municipality for Property Destroyed by Mob Vio- lence. — The imposition of absolute liability upon the community when prop- erty is destroyed through the violence of a mob is not an unusual police regula- tion. Neither is it arbitrarv, as not resting upon reasonable grounds of pol- icy.i'""' Same — Classification — Equal Protection. — The power of the state to impose liability for damage and injury to property from riots and mobs includes the power to make a classification of the subordinate municipalities upon which the responsibility may be imposed. It is a matter for the exercise of legislative discretion, and the equal protection of the law is not denied where the classifi- cation is not so unreasonable and extravagant as to be a mere arbitrary man- date.io<= 514-lOa. Matters not actionable at com- amount of any judgment it may have paid mon law. — Chicago i'. Sturges, 222 U. S. the sufferer, is a valid exercise of the po- 313, .")6 L. Ed. 21.5. 32 S. Ct. 92. lice power, and does not deny to the mu- 514-lOb. Liability of municipality for nicipality due process of law because it property destroyed by mob violence. — imposes liability irrespective of any ques- Chicago V. Sturges, 222 U. S. 3K]. 56 L. tion of the power of the municipality to Ed. 215, 32 S. Ct. 92. have prevented the violence, or of negli- Alaking a municipality liable for three- gence in the use of its power. Chicago v. fourths of the damage to property within vSturges, 222 U. S. 313, 56 L. Ed. 215, 32 its limits caused by a mob or riot, as is S. Ct. 92, affirming judgment (1908), done by Laws 111. 1887, p. 237, which Sturges v. City of Chicago, 86 X. E. G83, saves to the owner his action against the 237 111. 46. rioters, and gives the municipality a lien 514-lOc. Same — Classification — Equal upon any judgment against such partici- protection. — Chicago v. Sturges, 222 U. S. pants for reimbursement, or a remedy to 313. 56 L. Ed. 215, 32 S. Ct. 92. the municipality directly against the in- A city is not denied the equal protection dividuals causing the damage, to the of the laws by Laws III. 1887, p. 237, im- 969 515 POLICE POWER. Vol. IX. Liability of Corporation for Death of Employees — Validity of Con- tract or Charter Exemption. — See post, "Regulation of the Relation of Master and Servant; Protection of Employees," etc., VI, K, 4, k, et seq. D. Prevention and Punishment of Crime; Ex Post Facto Laws. — See ante. Constitutional Law, p. 264; Due Process of Law, p. 475. E. Public Morals, etc. — 1. Gambling; Option and Margin Contracts, ETC. — The business of conducting a place where corporate stocks, bonds, grain, provisions and other commodities are dealt in upon margin, or bought and sold but not paid for or delivered at the time, is a proper business for the state, in the exercise of its general police power, to regulate and control. ^^a 2. Disorderly Houses, etc. — As to the powers of the federal government with respect to the suppression of disorderly houses in general and the harbor- ing of alien women for immoral purposes in particular, see ante, Interstate and Foreign Commerce, p. 689. F. Highways; Establishment, Care, Maintenance, etc.; Ferries, Ca- nals, etc. — See, generally, ante, Municipal Corporations, p. 895 ; post, Streets and Highways. As to the power of a municipal corporation to reg- ulate or suppress the business of displaying advertisements for hire in or upon stages plying upon certain streets, see ante, Due Process of Law, p. 475 ; Im- pairment OF Obligation of Contracts, p. 624. And see post, "Advertising in or on Public Conveyances, in Streets, Highways, and Other Public Places," VI, K, 4, C14. G. Waters and Watercourses; Navigable Waters — 1. In General. — See, generally, ante. Constitutional Law, p. 264; Due Process of Law, p. 475; Interstate and Foreign Commerce, p. 689; NavigablF Waters, p. 914; post, Waters and Watercourses. As to the removal of bridges and other obstructions, improving navigation, etc., see ante, Due Process of Law, p. 475 ; Interstate and Foreign Commerce, p. 689; Navigable Waters, p. 914. As to the rights of riparian owners, see ante, DuE Process of Law, p. 475 ; In- posing upon it a liability for damage to niodities are bought and sold, but not paid property within its limits, caused by a for or delivered at the time, as a proper mob or riot, because, when property dam- business for the imposition of a stamp aged under like circumstances is situated tax upon such sales, as is done by Act in a village or other incorporated town, March 8, 1907 (Acts Mo. 1907, p. 392), the liability is imposed upon the county does not make the statute invalid, as deny- instead of upon such village or town. Chi- ing the equal protection of the laws, cago V. Sturges, 222 U. S. 313, 56 L. Ed. Brodnax v. Missotiri, 219 U. S. 285, 55 L. 215, 32 S. Ct. 92, atiirming judgment (1908) Ed. 219, 31 S. Ct. 238, affirming judgment Sturges V. City of Chicago, 86 N. E. 683, in State v. Brodnax (1910), 128 S. W. 177, 237 111. 46. 228 Mo. 25. 515-12a. Gambling— Option and margin Suppression — Criminal offense.— The contracts.— Brodnax v. Missouri, 219 U. keeping of a place where corporate stocks S. 285, 55 L. Ed. 219, 31 S. Ct. 238, affirm- and bonds and grains, provisions, and ing 228 Mo. 25, 128 S. W. 177; Murphy v. other commodities are bought and sold, California, 225 U. S. 623, 56 L. Ed. 1229, 1^"^ not paid for and delivered at the time, 32 S. Ct. 697. See, generally, ante, CON- ^"d where no complete record of the STITUTIOXAL LAW, p. 264- DUE transactions, including a minute of the PROCESS OF LAW p 475 ' time of delivery, is made in a book kept As to license reqtiirements or other [f"" ^^^ Purpose, and no niemorandum of regulations interfering with interstate '^^^ f^^^' properly stamped, is given the commerce, see ante, INTERSTATE AND P^^-^'^aser, may be made a criminal of- FOREIGN COMMERCE, p. 689. \^^^f' ^' '^,,^one by Act March 8, 1907 "; , , . f , , (Acts Mo. 1907, p. 392), in the exercise of As to the regulation of stock exchange, the police power of the state, without boards of trade, etc., see post, "Applica- taking property without due process of tion of Principles to Particular Business, i^w or interfering with the freedom of Trade, Occupation or Profession," VI, contract. Brodnax v. Missouri, 219 U. S. K. 5. 285, 55 L. Ed. 219, 31 S. Ct. 238, affirming Stamp tax. — Singling out the keeping of judgment in State v. Brodnax (1910), 128 a place where corporate stocks and bonds, S. W. 177, 228 Mo. 25. See, also, ante, and grains, provisions, and other com- DUE PROCESS OF LAW, p. 475. 970 Vol. IX. POLICE POWER. 518-519 TEJRSTATE AND FoREIGN CoMMERCE:, p. 689; NaVIG \BLE WATERS, p. 914; pOSt, Waters and Watercourses. As to the power of the state to prevent the di- version of the waters of a stream into another state for use therein, see ante, Due Process of Law, p. 475 ; Interstate and Foreign Commerce, p. 689. See, also, post, "Conservation of Natural Resources," VI, M. H. Animals. — See ante, Animals, p. 27; Interstate and Foreign Com- merce, p. 68'^ I. Fish and Game. — See notes 19, 20. J. Public Health — 6. Food Stuffs. — Pure Food Laws, Generally. — As to pure food laws in general, state and national, see ante. Interstate and For- eign Commerce, p. 689. Imitations and Adulterations. — The police power of the state extends to the prevention of the manufacture and sale of adulterated articles, and to re- quiring the publication of their composition.-'^^ Destruction of Unwholesome Food. — See ante. Due Process of Law, p. 475. 7. Tenement Houses. — The regulation and control of the sanitary arrange- ments of tenement houses with a view to safeguarding the health of the oc- cupants and preventing the sanitary conditions obtaining therein from becoming a nuisance and a menace to the health of the community at large is a matter clearly within the police power of the state, not only as regards the construc- tion of new building, but with respect to alterations in existing structures ren- dered necessary by reasonable requirements.-"'' 518-19. Fish and game. — The power of the state to regulate the oyster industry, ahhough the same is carried on under tidal waters in the state, can not success- fully be contested. Lee v. New Jersey, 207 U. S. 67, 69, 52 L. Ed. 106, 28 S. Ct. 22, citing Smith v. Maryland, 18 How. 71, 15 L. Ed. 269; McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; Manchester v. Massachusetts, 139 U. S. 240, 35 L. Ed. 159. Rights under Const. U. S., 14th Amend., are not infringed by the provision of Act N. J. March 24, 1899, p. 514, § 20, as amended by Act March 22, • 1901, p. 317, under which a conviction may be had for using a dredge in tidal waters of the state for the purpose of catching oys- ters upon leased lands without the con- sent of the lessees. Judgment, State v. Lee (1905), 59 A. 1118. affirmed. Lee v. New Jersey, 207 U. S. 67, 52 L Ed. 106, 28 S. Ct. 22. Taking and exportation of sponges.— See ante, INTERSTATE AND FOR- EIGN COMMERCE, p. 6S9. 518-20. Same — Game. — The police power is a well recognized and often exerted power of the state, and necessary to the protection of the supply of game which would otherwise be rapidly depleted, and which, in spite of laws passed for its pro- tection, is rapidly disappearing from many portions of the country. In order to pro- tect local game during the closed season it has been found expedient in some states to make possession of all such game dur- ing that time, whether taken within or without the state, a misdemeanor. In other states of the Union such laws have been deemed essential, and have been sustained by the courts. Silz v. Hester- berg, 211 U. S. 31, 53 L. Ed. 75, 29 S. Ct. 10. The source of the police power as to game birds flows from the duty of the state to preserve for its people a valuable food supply. The exercise by the state of such power therefore conies directly within the principle of Plumley v. Mas- sachusetts, 155 U. S. 461, 473, 39 L. Ed. 223, 15 S. Ct. 154; Silz v. Hesterberg, 211 U. S. 31, 53 L. Ed. 75, 29 S. Ct. 10. The prohibition against the possession of game out of season, which is made by Laws N. Y. 1900, p. 22, c. 20. is a proper exercise of the police power, and does not deny the due process of law guaranteed by Const. U. S., 14th Amend., although such game may have been taken in foreign countries during the open sea- son there. Judgment (1906), 76 N. E. 1032, 184 N. Y. 126, 3 L. R. A. (N. S.) 163. affirmed. Silz v. Hesterberg, 211 U. S. 31, 53 L. Ed. 75, 29 S. Ct. 10. 519-27a. Imitations and adulterations. — Heath, etc., Mfg. Co. v. Worst, 207 U. S. 338, 353, 52 L. Ed. 236, 28 S. Ct. 114. See. also, ante, CONSTITUTIONAL LAW, p. 264; INTERSTATE AND FOREIGN COMMERCE, p. 6S9. 519-27b. Tenement houses. — Tenement House Dept. of City of New York v. Moeschen, 179 N. Y. 325. 72 N. E. 231, 70 L. R. A. 704, 103 Am. St. Rep. 910. af- firmed, Aloeschen z\ Tenement House 971 519-521 POLICE POWER. Vol. IX. 8. Cemeteries. — The regulation of burial and the prohibition of it in certain spots, especially in crowded cities, is a matter peculiarly within the police powei of the state, and the court has said that in matters of this kind the extent to w^hich legislation may modify and restrict the uses of property consistently with the constitution is not a question for pure abstract theory alone, but that tradi- tion and the habits of the community count for more than logic, and that the federal supreme court will exercise great caution in overruling the decision of the local authorities, or in allowing it to be overruled.-"'^ K. Regulation of Business, Trade, Occupation or Profession. — See, generally, ante, Constitutional Law, p. 264. As to restrictions upon the lib- erty of contract, see, also, ante, Due Process oe Law, p. 475. L Right oe Citizens to Pursue Lawful Occupations, Enter into Con- tracts. Acquire and Dispose oe Property, upon Terms oe Equality. — See, generally, ante. Constitutional Law, p. 264. And see post, "As to Power of State to Regulate," VI, K, 3, et seq. 2. Right to Be Exercised in Subordination to Law. — See post, "As to Power of State to Regulate," VI, K, 3, et seq. 3. As to Power of State to Regulate — a. Generally. — See note 30. Dept., 203 U. S. 583. 51 L. Ed. 328, 27 S. Ct. 781. The provision of Laws 1901, p. 912, c. 334, § 100, as amended by Laws 1902, p. 937, c. 352, § 47, requiring all school sinks in existing tenement houses in cities of the first class to be removed, is a con- stitutional exercise of the police power of the states for the protection of the public health, and does not violate the constitu- tional provision against taking private property for public use without just com- pensation, in so far as it applies to ex- isting buildings. Neither is it a violation of the equal protection clause of the fourteenth amendment because applicable to tenement houses only in cities of the first class. Judgment, Tenement House Department of City of New York v. •Moeschen (1904), 72 N. E. 231, 179 N. Y. 325, 70 L. R. A. 704, 103 Am. St. Rep. 910, affirmed. Moeschen v. Tenement House Dept., 203 U. S. 583. 51 L. Ed. 328, 27 S. Ct. 781. 519-27C. Cemeteries. — Laurel Hill Ceme- tery Co. V. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. A cemetery association owning a burial ground within the limits of the city and county of San Francisco is not deprived of its property without due process of law, contrary to the Const. U. S., 14th Amend., by an ordinance forbidding the burial of the dead within those Hmits. Decree (1907), 93 P. 70. 152 Cal. 464, 14 A. & E. Ann. Cas. 1080, affirmed. Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 54 L. Ed. 515, 30 S. Ct. 301. 521-30. Generally, as to power of state to regulate business, trade, occupation, etc.— See, generally, ante, CONSTITU- TIONAL LAW, p. 264. It is too well settled to require discus- sion at this day that the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health. Watson v. Maryland, 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644; Collins V. Texas, 223 U. S. 288, 56 L. Ed. 439, 32 S. Ct. 286. The fourteenth amendment protects the citizen in his right to engage in any law- ful business, but it does not prevent leg- islation intended to regulate useful oc- cupations which, because of their nature or location, may prove injurious or of- fensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may by regulated and the vicious business which can be prohibited lie many nonuseful occupations which may or may not be harmful to the public, according to local conditions, or the man- ner in which they are conducted. Murphy V. California. 225 U. S. 623, 56 L. Ed. 1229. 32 S. Ct. 697. "Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business, or occupation they shall apply, are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state; and, unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the prop- GTiy and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for fed- eral interference." McLean v. Arkansas, 211 U. S. 539, 53 L. Ed. 315, 29 S. Ct. 205; Engle V. O'M alley, 219 U. S. 128, 55 L. 972 Vol. IX. POLICE POWER. 523 b. Business Subject to Regulation; Regulations to Be Imposed — (1) State to Select. — See ante, "Generally," VI, K, 3, a. (3) Doubtful and Immoral J'ocations. — See ante, "Gambling; Option and Margin Contracts, etc.," VI, E, 1, and references there given; "Disorderly Houses, etc.," VI, E, 2, and references there given. And see post, "Application of Principles to Particular Business, Trade, Occupation or Profession," VI, K, 5, et secj. d. Limitations of Ponder — (1) Must Be Reasonable; Arbitrary Interference Not Permissible. — See notes 38, 39. Ed. 128, 31 S. Ct. 191; Noble State Bank V. Haskell, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 186; Shallenberger v. First State Bank, 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189; Assaria State Bank v. DoUev. 219 U. S. 121, 55 T... Ed. 123, 31 S. Ct. 189. It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U. S. 518, 42 L. Ed. 260, 17 S. Ct. 864. It may be put forth in aid of what is sanctioned by usage, or held by the pre- vailing morality or strong and prepon- derant opinion to be greatly and imme- diately necessary to the public welfare. Noble State Bank v. Haskell, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 186, followed in Shallenberger v. First State Bank, 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189. Not affected by existence of right at common law. — The claim by the states of the right to regulate or prohibit the free and unrestrained exercise or pursuit of a given occupation or business is not an- swered by citing authorities for the exist- ence of the right at common law, since there are many things that a man might do at common law that the states may forbid. He might embezzle until a statute cut down his liberty. Noble State Bank v. Haskell, 219 U. S. 104, 55 L. Ed. 112, 31 S. Ct. 186, followed in Shallenberger 7'. First State Bank, 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189. 523-38. Regulation must be reasonable — Arbitrary interference not permissible. —See, generally, ante, CONSTITU- TIONAL LAW, p. 264. Vesting discretion in single officer, board or tribunal.— See ante, CONSTITU- TIONAL LAW, p. 264. 523-39. Presumption in favor of valid- ity — Legislature permitted a wide dis- cretion. — See, also, ante, "Generally, as to the Supremacy of the Federal Constitu- tion and Laws," V, A; "Judicial Review," V, E, 2, d. Before a law of this kind can be de- clared violative of the fourteenth amend- ment as an unreasonable classification of the subjects of such legislation because of the omission of certain classes, the cojirt must be able to say that there is "no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched." Missouri, etc., R. Co. t'. May, 194 U. S. 267, 269, 48 L. Ed. 971, 24 S. Ct. 638; Wat- son V. Maryland, 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644. Time of taking effect — Discrimination as between rights of earlier and later time. — "Tlie fourteenth amendment does not forbid statutes and statutory changes to have a beginning, and thus disciminate between the rights of an earlier and later time." Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137; Sperry, etc., Co. V. Rhodes, 220 U. S. 502, 505, 55 L. Ed. 561, 31 S. Ct. 490. Legislation which makes acts criminal which are done after they are forbidden, and assigns no penalties to acts done in pursuance of obligations previously le- gally incurred, is not arlntrary classifica- tion. Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137. Distinctions based upon degrees of evil. — Legislation which regulates business may well make distinctions depend upon the degrees of evil without being arbi- trary or unreasonable. Heath, etc., Mfg. Co. V. Worst, 207 U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114; Ozan Lumber Co. v. Union County Nat. Bank, 207 U. S. 251, 52 L. Ed. 195, 28 S. Ct. 89. Distinctions based upon sex. — See ante, CONSTITUTIONAL LAW, p. 264. As to discriminations between the hours of labor for male and female employees, see post, "Eight Hour Laws," VI, K, 4, k, (8), (bV Not unreasonable because it results in raising some revenue. — The police power is a very extensive one, and is frequently exercised where it also results in raising a revenue. Phillips v. Mobile, 208 U. S. 472. 52 L. Ed. 578. 28 S. Ct. 370. Thus a municipal ordinance regulating the sale of intoxicating liquors in the original package, and otherwise valid un- der the Wilson .^ct, is not rendered in- valid by reason of the fact that it also pro- duces some revenue. Speaking on this point the court says: "The fact that the city derives more or less revenue from the ordinance in question does not tend to prove that this section was not adopted in the exercise of the police power, even though it might also be an exercise of the power to tax." And again, speak- 973 525-526 POLICE POWER. Vol. IX. (2) Regulation May Extend to Suppression. — See ante, "Generally," VI, K, 3, a. Where Business Not Necessarily Objectionable, but Objectionable as Ordinarily Prosecuted. — See note 43. (3) As to the Retrospective Operation of Regulations; Interest or Estate in Profession, Business, etc. — See, generally, ante, "A Continuing Power; Can Not Be Bargained Away," V, D. 3, et seq. See, generally, as to vested rights, ante, Constitutional Law, p. 264. As to ex post facto laws, see ante, Consti- tutional Law, p. 264. As to the deprivation of liberty or property without due process of law, see ante. Due Proce;ss of Law, p. 475. And see ante, "As Re- stricted by the Fourteenth Amendment," V, E, et seq. As to federal regulations of interstate commerce invalidating existing contracts and prohibiting the mak- ing of future contracts opposed to the policy of such regulations, see ante, In- terstate AND Foreign Commerce, p. 689. 4. Particular Regulations — a. Pozver to Prescribe Qualifications for Persons Seeking to Enter the Learned Professions or Occupations Requiring Peculiar Knozvledge or Skill. — Interest or Estate in Profession — Power to Make Regulations Applicable to Existing Practitioners. — A prohibition against the practice of medicine by persons not licensed or registered is not in- valid as to one who had an established business when the law was passed.^'^'^ Practice of Medicine — Generally. — It is too well settled to require dis- cussion at this day that the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the pub- lic health. There is perhaps no profession more properly open to such regula- tion than that which embraces the practitioners of medicine. Dealing, as its followers do, with the lives and health of the people, and requiring for its suc- cessful practice general education and technical skill, as well as good character, it is obviously one of those vocations where the power of the state may be ex- erted to see that only properly qualified persons shall undertake its responsible and difficult duties. To this end many of the states of the Union have enacted statutes which require the practitioner of medicine to submit to an examination by a competent board of physicians and surgeons, and to receive duly authenti- cated certificates showing that they are deemed to possess the necessary qualifi- cations of learning, skill and character essential to their calling.^'''^ ing of the power to regulate the protect the public morals has no real or traffic in intoxicating liquors: "Taxa- substantial relation to that object, but is tion is frequently the very best and most a clear, unmistakable infringement of practical means of regulating this kind of rights secured by the fundamental law." business." Phillips v. Mobile, 208 U. S. (Quoting Booth v. Illinois, 184 U. S. 425, 472, 52 L. Ed. 578,28 S. Ct. 370, followed 429, 46 L. Ed. 623, 22 S. Ct. 425.) Under in Richard v. Mobile, 208 U. S. 480, 52 L. this principle, ordinances prohibiting the Ed. 581, 28 S. Ct. 372. keeping of billiard halls have many times 525-43. Where business not necessarily been sustained by the courts. Murphy v. objectionable, but objectionable as or- California. 225 U. S. 623, 56 L. Ed. 1229, r^inarily prosecuted. — "A calling may not 32 S. Ct. 697. ':U itself be immoral, and yet the tendency 526-47a. Interest or estate in profession of what is generally or ordinarily or often — Constitutionality as to existing practi- done in pursuing that calling may be to- tioners. — Collins 7'. Texas, 223 U. S. 288, wards that which is admittedly immoral 56 L. Ed. 439, 32 S. Ct. 286. or pernicious. If, looking at all the cir- 526-47b. Practice of medicine — Gener- cumstances that attend, or which may or- ally. — Watson z'. Maryland, 218 U. S. 173, dinarily attend, the pursuit of a particular 54 L. Ed. 987, 30 S. Ct. 644, citing Dent calling, the state thinks that certain ad- z.: West Virginia, 129 U. S. 114, 32 L. Ed. mitted evils can not be successfully 623, 9 vS. Ct. 231. reached unless that calling be actually May apply to osteopaths. — The state prohibited, the courts can not interfere, may constitutionally require, as is done unless looking through mere forms and by Tex. Laws 1907, chap. 123, that os- at the substance of the matter, they can leopaths professing to help certain human say the statute enacted professedly to ailments by scientific manipulation aflfect- 974 Vol. IX. POLICE POWER. 526 Classification and Exemptions. — Conceding the power of the legislature to make regulations for the practice of medicine, it is also within its power to exempt experienced and accepted physicians from the requirements of an ex- amination and certificate. The selection of the exempted classes is within the legislative power, subject only to the restriction that it be not arbitrary or op- pressive, and that it shall apply equally to all persons similarly situated. The details of such legislation rest primarily within the discretion of the state leg- islature, and the federal courts can interfere only when fundamental rights guaranteed by the federal constitution are violated.'^"'' Distinction between Paid and Gratuitous Services. — In prescribing re- quirements of this character, the state may properly distinguish between gra- tuitous medical services and those paid for.'*''' Single Acts and Transactions. — The state legislature, when prohibiting ing the nerve centers shall have had a scientific training. Collins v. Texas, 223 U. S. 288, 56 L. Ed. 439, 32 S. Ct. 286. 526-47C. Classification and exemptions. —Watson V. Maryland, 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644. "This subject has been so frequently and recently before this court as not to require an extended consideration. The right to regulate occupations was con- sidered by this court at the present term in the case of Williams v. Arkansas, 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493, in which it was held that a state statute which prohibited a certain class of drum- ming or soliciting of business on trains did not amount to a denial of the equal protection of the law. In that case the recent cases in this court were reviewed and followed. It was therein held that regulations of a particular trade or busi- ness essential to the public health and safety were within the legislative capacity of the state in the exercise of its police power, and that unless such regulations are so unreasonable and extravagant as to interfere with property and personal rights of citizens, unnecessarily and ar- bitrarily, they are within the power of the state; and that the classification of the subjects of such legislation, so long as such classification has a reasonable basis, and is not merely arbitrary selection without real difference between the sub- jects included and those omitted from the law, does not deny to the citizen the equal protection of the laws." Watson V. Maryland, 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644. The exemption from the provisions of Code Pub. Gen. Laws Md. 1904, art. 43, § 83, for the registration of physicians, in favor of those physicians who were then practicing in the state, and had so prac- ticed prior to January 1, 1898, and could prove by affidavit that within one year of said date :hey had treated at least 12 persons in their professional capacity, is not such an unreasonable and arbitrary classification as renders the statute in- valid, as denying the equal protection of the laws, but is within the discretion vested in the legislature in exercising the police power. Watson v. Maryland, 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644. affirming judgment (1907), 66 A. 635, 105 Md. 650. Resident physicians or assistant physi- cians at hospitals, and students on hos- pital or dispensary duty or in the office of physicians, physicians and surgeons from other states, or residing on the borders of a neighboring state, army and navy surgeons, chiropodists, midwives, and masseurs, could be exeinpted by Code Pub. Gen. Laws Md. 1904, art. 43, § 101, from the provisions of that article for the registration of physicians, without ren- dering the statute invalid as denying the equal protection of the laws. Watson f. Maryland, 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644. Since hospitals may be and very often are the subject of state or municipal regulation control, and employment in them may be by boards responsible to public authority under state lav/ or mu- nicipal ordinance, the conduct of such in- stitutions may be regulated by such laws or municipal regulations as may not reach the general practitioner of medicine. In any event, it can not be said that these exceptions are so wholly arbitrary and have such slight relation to the objects to be attained bv the law as to require the courts to strike them down as a denial of the equal protection of the law, within the meaning of the federal constitution. Watson V. Marvland. 218 U. S. 173, 54 L. Ed. 987, 30 S. Ct. 644. 526-47d. Distinction between paid and gratuitous services. — Collins v. Texas, 223 U. S. 288. 56 L. Ed. 439, 32 S. Ct. 286._ The distinction between _ gratuitous medical services and those paid for, made by Tex. Laws 1907, chap. 123, providing for registering and licensing medical practitioners who charge a compensation for services, does not render the statute repugnant to the federal constitution. Col- lins 7'. Texas, 223 U. S. 288, 56 L. Ed. 439. 32 S. Ct. 286. 97i 526-527 POLICE POWER. Vol. IX. the general practice of medicine for money by persons not licensed or regis- tered, can constitutionally attach the same condition to a single transaction of a kind not likely to occur otherwise than as an instance of a general practice, such as the treatment of a single patient for hay fever by osteopathy-^"*" Applicability of Statute — Construction by State Courts. — In determin- ing the constitutionality of such a statute, the federal supreme court will ac- cept the construction of the state courts as to who are persons practicing med- icine within its terms.^"^ cYi. Use of Name or Portrait of Individual for Advertising Purposes. — It is within the power of the legislature to forbid the use of the names or portraits of individuals for advertising purposes without the written consent, first had and obtained, of the person whose name or portrait it is desired to use, and to give a right of action to the person whose name or portrait is so used. Such a statute may discriminate as between the rights of an earlier and later time, and is not obnoxious to constitutional objections because it is made to apply to and forbid the use of photographs taken thereafter and not to those taken before its enactment. ^^^^ c^. Advertising in or on Public Convey apices, in Streets, Highways, and Other Public Places. — A municipal ordinance prohibiting the use of advertising trucks, vans, or wagons in the city streets is a valid exercise of the police power.^"'' Equal Protection of the Laws. — And the equal protection of the laws is not denied to a stage coach company by a municipal ordinance prohibiting the use of advertising trucks, vans, or wagons in the city streets, because "ordinary business wagons" when "engaged in the usual business or regular work of the owner, and not used merely or mainly for advertising," are expressly permitted to exhibit "business notices," nor because advertising is allowed on the stairs of the elevated railways and on elevated structures.-'' '^'^ e. Suppression of Monopolies and Combinations in Restraint of Trade. — See ante. Monopolies and Corporate Trusts, p. 87'4. h. Inspection Laws. — See ante, Inspection Laws, p. 670; Interstate and Foreign Commerce, p. 689. j. Licenses; Occupation Taxes. — See ante, Interstate and Foreign Com- merce, p. 689; Intoxicating Liquors, p. 803; Licenses, p. 826; post. Tax- ation. 526-47e. Single acts and transactions. — other public places. — Fifth Ave. Coach Co. Collins V. Texas, 223 U. S. 288, 50 L. Ed. v. New York, 221 U. S. 467, 55 L. Ed. 439, 32 S. Ct. 286. 815, 31 S. Ct. 709, affirming decree (1909), 526-47f. Applicability of statute— Con- 86 N. E. 824, 194 N. Y. 19, 21 L. R. A. (N. struction by state court. — Collins v. Texas, S.) 744, 16 A. & E. Ann. Cas. 695, which 223 U. S. 288, 50 L. Ed. 439, 32 S. Ct. 286. affirms (1908), 110 N. Y. S. 1037, which The ruling of the state court that osteo- affirms 111 N. Y. S. 759. See, also, ante, paths are persons practicing medicine, SERVANT, p. 851. within the meaning of Tex. Laws 1907, 527-50c. Equal protection of the laws. chap. 123, providing- for licensing and reg- — Fifth Ave. Coach Co. v. New York, 221 istering medical practitioners, will be fol- U. S. 467, 55 L. Ed. 815, 31 S. Ct. 709, af- lowed by the federal supreme court in de- firming 194 N. Y. 19, 86 N. E. 824, 21 L. termining the constitutionality of such R. A. (N. S.) 744, 16 A. & E. Ann. Cas. statute on writ of error to the state court. 695, which affirms 110 N. Y. 1037, which Collins V. Texas, 223 U. S. 288, 50 L. Ed. affirms 111 N. Y. 759. 439, 32 S. Ct. 280. Display of advertisements for hire by 527-50a. Use of name or portrait of in- stage company. — See, generally, ante, dividual for advertising purposes.— DUE PROCESS OF lAw, p. 475. As Sperry, etc., Co. v. Rhodes, 220 U. S. 502, to the impairment of contract or charter 55 L. Ed. 561, 31 S. Ct. 490. rights, see ante, IMPAIRMENT OF 527-50b. Advertising in or on public OBLIGATION OF CONTRACTS, p. conveyances, in streets, highways, and 024. 970 Vol. IX. POLICE POJJ ER. 529 k. Regulation of the Relation of Master and Sen-ant; Protection of Em- ployees, etc. — (1) Generally. — See note 56. (3) Protection of Laborer against Himself; Legislature Takes Xotice That Employer and Employee Xot upon an Equal Footing. — See note 59. 529-56. Relation of master and servant — Protection of employees — Generally. — In dealing with the relation of employer and employed, the legislature has neces- sarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from op- pression. What differences, as to the ex- tent of this power, may exist with respect to particular employments, and how far that which may be authorized as to one department of activity may appear to be arbitrary in another, must be determined as cases are presented for decision. Chi- cago, etc.. R. Co. V. McGuire, 219 U. S. 549, 55 L. Ed. 32S. 31 S. Ct. 259. See. gen- erally, ante. FELLOW SERVANTS, p. 579; INTERSTATE AND FOREIGN COMMERCE, p. 689; MASTER AND SERVANT, p. 851. As to federal Employers' Liability Acts, and as to the validity of state Em- ployers' Liability Acts in so far as they affect interstate commerce, see ante, IN- TERSTATE AND FOREIGN COM- MIE RCE, p. 689. 529-59. Protection of laborer against himself — Legislature takes notice that em- ployer and employee not upon an equal footing. — It is well established' that, so far as its regulations are valid, not being arbitrary or unrelated to a proper pur- pose, the legislature undoubtedly may prevent them from being nullified by pro- hibiting contracts which, by modification or waiver, would alter or impair the ol)li- gation imposed. Chicago, etc., R. Co. z'. IvIcGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. As was pointed out in Holden f. Hardy, 169 U. S._366, 42 L. Ed. 780, 18 S. Ct. 383: "The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proorietors of these establishments and their operatives do not stand upon an eqiiality, and that their interests are, to a certain extent, conflicting. The former naturallv desire to obtain as much labnr as possible from their employees, while the latter are often induced bj^ the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legisla- 12 U S Enc— 62 9 ture may properly interpose its authority * * *. But the facts that both parties are of full age and competent to contract does not necessarily deprive the state of the power to interfere v%-here the parties do not stand upon an equality, or where the public health demands that one party lo the contract shall be protected against himself. 'The state still retains an in- terest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.' " Chicago, etc., R. Co. v. ^Ic- Guire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259. In the cases within its purview it ex- tended the liability of the common law by abolishing the fellow-servant rule. Having authority to establish this regu- lation, it is manifest that the legislature was also entitled to insure its efficacj^ by prohibiting contracts in derogation of its provisions. In the exercise of this power, the legislature was not limited with re- spect either to the form of the contract, or the nature of the consideration, or the absolute or conditional character of the engagement. It was as competent to prohibit contracts which, on a specified event, or in a given contingency, should operate to relieve the corporation from the statutory liability which would other- wise exist, as it was to deny validity to agreements of absolute waiver. Chicago, '-tc, R. Co. V. McGuire, 219 U. S. 549, 55 L. Ed. 328. 31 S. Ct. 259. The freedom of contract is not uncon- stitutionally infringed by amending the provisions of Code Iowa, § 2071, which define the liability of railway corporations for injuries resulting from negligence and mismanagement in the use and operation of their railways, so that a railway com- pany, when sued on such liability, is pre- cluded from making the defense that a recovery is barred by the acceptance of benefits under a contract of membership in its relief department. Chicago, etc., R. Co. z\ McGuire, 219 U. S. 549, 55 L. Ed. 328, 31 S. Ct. 259, affirming judgment in McGuire v. Chicago, B. & Q. R. Co. (1908), 116 N. W. 801. 138 Iowa 664. See. also, ante, DUE PROCESS OF LAW, p. 475: INTERSTATE AND FOREIGN COMMERCE, p. 689. Membership in railway relief depart- ment operating as a release of damages. — As to the power of congress to provide that the acceptance of benefits under a contract of membership in a railway re- 530 POLICE POWER. Vol. IX. (53/^) Civil Liability for Death or Injury of Employee, Generally. — The civil liability of employers for the death or injury of their employees, resulting from their negligence, is a matter of public concern, and not of mere private right, it is closely connected with the safety of the employees, and belongs to that class of subjects over which the legislature possesses a regulatory but not a contracting power.^^^ (6) Abolishing or Modifying the Doctrine of Fellow Servants. — See, gen- erally, ante, Constitutional Law, p. 264; Fellow Servants, p. 579; Master AND Servant, p. 851. As to federal employers' liability acts, and state acts alleged to unlawfully interfere with interstate commerce, see ante, Interstate AND Foreign Commerce, p. 689. (6^) Abolishing or Modifying Doctrine of Comparative and Contributory Negligence. — See references above under "Abolishing or ^Modifying the Doc- trine of Fellow Servants," VI, K, 4, k, (6). (7) Securing Payment of Wages Promptly and in Money — (a) Generally — Assignments of Wages. — A statute making invalid against the employer as- signments of, or orders for, wages to be earned in the future, unless recorded, accepted in writing by the employer, and accompanied by the written consent of the wife of the employee, is a valid exercise of the police power and does not deny due process of law to the assignee. '^^'^ (8) Limiting Days and Hours of Employment — (b) Eight-Hour Lazi's.— See note 65. (9) Prohibiting the Discharge of Employees because of Membership in La- bor Organization. — See ante, DuE Process of Law, p. 475. 1. Imitations and Adulterations. — The police power of the state extends to lief department shall not operate to bar a recovery of damages for the death or injury of an employee, and to avoid any agreement to that effect, see ante. IN- TERSTATE AND FOREIGN COM- MERCE, p. 689. 530-63a. Civil liability for death or in- jury of employees, generally. — Texas, etc., R. Co. v. Miller, 221 U. S. 408, 55 L. Ed. 789, 31 S. Ct. 534. See, generally, ante. CONSTITUTIONAL LAW, p. 264; DUE PROCESS OF LAW, p. 475; FEL- LOW SERVANTS, p. 579; MASTER AND SERVANT, p. 851. As to federal Employers' Liability Acts, and state acts alleged to unlawfully inter- fere with interstate commerce, see ante, INTERSTATE AND FOREIGN COM- MERCE, p. 689. As to powers of territorial legislatures, see ante, CONSTITUTIONAL LAW, o. 264. As to contracts designed to modify or restrict the statutory or common-law lia- bility of the master for the death or in- jury of the sejvant, see ante, INTER- STATE AND FOREIGN COMMERCE. p. GS9. See, also, ante, "Protection of La- borer against Himself — Legislature Takes Notice That Employer and Employee Not upon an Equal Footing," VI, K, 4, k, (3). A provision in a railway charter ex- empting the company from liability for the death of any person in its service, even if caused by its negligence, creates no contract right protected against repeal by the contract clause of the federal con- stitution, since the subject is one over which the legislature possesses a regulat- ing but not a contracting power. Texas, etc., R. Co. f. Miller, 221 U. S. 408, 55 L. Ed. 789. 31 S. Ct. 534. affirming judgment (Tex. Civ. App. 1910), 128 S. W. 1165; Texas, etc., R. Co. v. Gross, 221 U. S. 417, 55 L. Ed. 796, 31 S. Ct. 536, affirming judgment (Tex. Civ. App. 1910), 128 S. W 1173. Forbidding miners working upon quan- tity rates from contracting upon basis of screened coal. — See post, "Operation of Mines." VI, K, 5, s. 530-63b. Assignments of wages. — Mu- tual Loan Co. v. Martell, 222 U. S. 225, 56 L. Ed. 175, 32 S. Ct. 74, affirming judg- ment (1909), 86 N. E. 916, 200 Mass. 482. See. also, ante, CONSTITUTIONAL LAW. p. 264. 530-65. Eight-hour laws. — See, gener- ally, ante, CONSTITUTIONAL LAW, p. 264; LABOR, p. 816. Discrimination between male and fe- male employees.— Rights under the four- teenth amendment to the federal constitu- tion are not infringed by the limitation of tlie hours of labor of women employed in laundries to ten hours daily which is made by Oregon Laws, 1903, p. 148, al- though like legislation affecting male em- ployees mav be invalid. ]\Iuller r. Oregon, 208 U. S. 412, 52 L. En. 551, 28 S. Ct. 324. 978 Vol. IX. POLICE POWER. 530 the prevention of the manufacture and sale of adulterated articles, and to re- quiring the publication of their composition. ^^^ m. Fraudulent and J'oliintary Conveyances — (1) Generally. — See, generally, ante. Fraud and Deceit, p. 597; Fraudulent and Voluntary Conveyances, p. 600. (2) Sales in Bulk Acts. — Disposing of a stock in trade outside of the regu- lar course of business, by methods which, if uncontrolled, are often resorted to for the consummation of fraud to the injury of innocent creditors is within the lawful scope of the police authority of the state.*^'^'' n. Requiring Public Service Companies to Discharge Duties to the Public — (1) Generally. — The states have the power to modify and cut down property rights to a certain limited extent without compensation, for public purposes^ as a necessary incident of government, under the power commonly called the police power. Upon this principle, railroads and other public service corpora- tions can be required to fulfill the purposes for which they were chartered and to do what is reasonably necessary to serve the public in the way in which they undertake to serve it, without compensation for the performance of some part of their duties that does not pay.^^'^ Of course, the fact that the furnish- ing of a necessary facility ordered may occasion an incidental pecuniary loss is an important criterion to be taken into view in determining the reasonable- ness of the order, but it is not the only one. As the duty to furnish necessary 530-65a. Imitations and adulterations. —Heath, etc., Mfg. Co. r. Worst, 207 U. S. 338, 353, 52 L. Ed. 236, 28 S. Ct. 114. See, generally, ante, CONSTITUTIONAL LAW, p. 264. See, also, ante, "Food Stuffs," VI, J, 6. As to Pure Food and Drugs Acts, state and federal, see, generally, ante. INTER- STATE AND FOREIGN COMMERCE, p. 689. As to the adulteration of paints, see post, "Application of Principles to Particular Business, Trade, Occupation or Profession,"' VI, K, 5. 530-65b. Sales in bulk acts. — Lemieux 1-. Young, 211 U. S. 489, 493, 53 L. Ed. 295, 29 S. Ct. 174; Kidd, etc., Co. v. Musselman Grocer Co., 217 U. S. 461, 54 L. Ed. 839, 31 S. Ct. 606. See, generally, ante. CON- STITUTIONAL LAW, p. 264. Due process of law is not denied retail dealers bj' the provisions of Gen. St. Conn. 1902. §§ 4868, 4869, avoiding, as against creditors, sales in bulk, unless no- tice of intention to make such sale be re- corded seven days before its consumma- tion, but such statute is a valid exercise of the police power of the state. Judg- ment (1907), Young V. Lemieux, 65 A. 436, 79 Conn. 434, affirmed. Lemieux v. Young, 211 U. S. 489, 53 L. Ed. 295, 29 S. Ct. 174. 530-65C. Requiring public service com- panies to discharge duties to the public — Generally — Right to compensation. — Mis- souri Pac. R. Co. V. Nebraska, 217 U. S. 196, 54 L. Ed. 727, 30 S. Ct. 461; Missouri Pac. R. Co. V. Railroad Commr's, 216 U. S. 262, 54 L. Ed. 472, 30 S. Ct. 330; Wis- consin, etc.. Railroad v. Jacobson, 179 U. S. 287, 45 L. Ed. 194, 21 S. Ct. 115; At- lantic, etc., R. Co. c'. North Carolina Corp. Comm., 206 U. S. 1, 51 L. Ed. 933, 27 S. Ct. 585. See, also, ante, CARRIERS, p. 2] 6; INTI^RSTATE AND FOREIGN COMMERCE, p. 689. See, also, post, "Regulation of Rates," VI, L. Suspending collection of tolls until turnpike put in order. — This principle has been appHed to the case of a turnpike company as to which it was held that, conformably to a state statute, the col- lection of tolls by the company might be suspended until its roads should have been put in proper repair, and that the property of the company was not taken without due process of law contrary to the provisions of the fourteenth amend- ment in such case because the travel did not yield a sufficient revenue to keep ths roads in good order. Norfolk, etc.. Turn- pike Co. V. Virginia, 225 U. S. 264, 56 L. Ed. 1082, 32 S. Ct. 828. Unreasonable requirements as to gas pressure. — The requirements as to gas pressure made by N. Y. Laws 1905, chap. 736, and Laws 1906, chap. 125, fi.xing gas rates in New York city, are confiscatory, where, to put this pressure upon the mains and other service pipes, in their present condition, is to run a great risk of explosion and consequent disaster, and to eliminate such danger requires an expenditure of many millions of dollars, from which no return can be had at the rates established by those acts. Willcox V. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 .S. Ct. 192. Compelling water company to make service connections at pecuniary loss. — See post. WATER COMPANIES AND WATERWORKS. 979 530 POLICE POWER. Vol. IX. facilities is coterminous with the powers of the corporation, the obligation to discharge that duty must be considered in connection with the nature and pro- ductiveness of the corporate business as a whole, the character of the services required, and the public need for its performance.'^'^'^ Where a duty which a corporation is obliged to render is a necessary consequence of the acceptance and continued enjoyment of its corporate rights, those rights not having been surrendered by the corporation, other considerations are, in the nature of things, paramount, since it can not be said that an order compelling the performance of such a duty at a pecuniary loss is unreasonable. To conclude to the contrary would be but to declare that a corporate charter was purely unilateral; that is, was binding in favor of the corporation as to all rights conferred upon it, and was devoid of obligation as to duties imposed, even although such duties were the absolute correlative of the rights conferred.*^^^ Distinction between Compelling Discharge of Corporate Duties and Establishment of Confiscatory Rates. — There is a distinction between the exertion of the legislative power to compel a corporation to render a service which it is essentially its duty to perform and an order establishing rates in such a manner as to confiscate the property of a corporation by fixing them below a proper remunerative standard. To illustrate, it is the primal duty of a carrier to furnish adequate facilities to the public, and the performance of that duty may be compelled, although by doing so some pecuniary loss may incidentally result. The mere incurring of such loss does not, in and of itself, necessarily give rise to the conclusion of unreasonableness; but it would be otherwise as to an order fixing rates so low as to render the whole scheme unreasonable and confiscatory.*'-^^ Doctrine Applicable to Both State and Federal Powers. — The principle here laid down is applicable to the powers of both the state and national govern- ments, and. in so far as those powers operate in different orbits, there can be no conflict between them; but it is to be observed that, resulting from the paramount operation of the constitution of the United States, even the lawful powers of a state can not be exerted so as to directly burden interstate com- merce. ^^^ (2) Forbidding Contracts Restricting or Modifying C ommon-Lazo or Statu- tory Liability. — See, generally, ante. Carriers, p. 216; Coxstitutional Law, p. 264; Corporations, p. 381; Due Process of Law, p. 475; Interstate axd Foreign Commerce, p. 689; post. Railroads; Telegraphs and Telephones, See, also, ante, "Protection of Laborer against Himself; Legislature Takes Notice That Employer and Employee Not upon an Equal Footing," VI, K, 4, k, (3) ; post, "Telegraphs and Telephones," VI, K, 5, e. As to the power of congress to outlaw and prevent the making of future contracts or the carry- ing out of existing contracts for rebates reduced transportation, etc., see ante, Interstate and Foreign Commerce, p. 689. As to federal regulations for- bidding contracts designed to waive or modify the provisions of statutes in- tended to protect the employees of interstate carriers, such as that the accept- 530-65d. Incidental pecuniary loss not tablishment of confiscatory rates. — Mis- the only criterion. — Missouri Pac. R. Co. souri Pac. R. Co. v. Railroad Comni'rs, V. Railroad Comni'rs. 216 U. S. 262, 54 L. 216 U. S. 262, 54 L. Ed. 472. 30 S. Ct. 330: Ed. 472, 30 S. Ct. 330; Atlantic, etc., R. Co. Atlantic, etc., R. Co. v. North Carolina V. North Carolina Corp. Comm.. 206 U. Corp. Comm., 206 U. S. 1, 51 L. Ed. 933. S. 1. 51 L. Ed. 933, 27 S. Ct. 585. 27 S. Ct. 585. See, also, post, "Regulation 530-65e. Same.— Missouri Pac. R. Co. z: of Rates." VI, L. Railroad Comm'rs, 216 U. S. 262, 54 L. 530-65g. Doctrine applicable to both Ed. 472, 30 S. Ct. 330. State and federal powers. — Alissouri Pac. 530-65f. Distinctions between compell- R. Co. r. Railroad Comm'rs, 216 U. S. ing discharge of corporate duties and es- 262. 54 L. Ed. 472, 30 S. Ct. 330. 9S0 Vol. IX. POLICE POWER. 531 ance of benefits under a contract of membership shall not operate as a release of damages, see ante, Interstate and Foreign Commerce, p. 689. 5. Application of Principles to Particular Business, Trade, Occupa- tion OR Profession — a. Regulation of the Import Trade. — See ante. Inter- state AND Foreign Commerce, p. 689. b. Common Carriers. — See ante, Carriers, p. 216; Constitutional Law, p. 264; Interstate and Foreign Commerce, p. 689. See, also, post, "Regula- tion of Rates," VI, K, et seq. c. Regulation of Railroads. — See, generally, ante. Carriers, p. 216; Constitu- tional Law, p. 264 ; Corporations, p. 381 ; Due Process of Law, p. 475 ; For- eign Corporations, p. 584; Interstate and Foreign Commerce, p. 689; post. Railroads. See, also, ante, "Requiring Public Service Companies to Discharge Duties to the Public." \l. K. 4. n. et seq. ; post, "Regulation of Rates," VI, L. Equipment of Trains, Number in Train Crew, etc. — A railway com- pany is not deprived of its property without due process of law by a statute which penalizes the operation of freight trains of more than twenty-five cars with less than three brakemen, regardless of any equipment with automatic couplers and airbrakes.""^ Requiring Track Connections, Interchange of Facilities, etc. — Where the order requiring a railway company to make a track connection requires it not only to spend money but prevents it from using for other purposes the land on which the tracks are to be laid, it is not a mere administrative regulation, but a taking of property, and can not be sustained merely because of the fact that the carrier has been given an opportunity to be heard. Such an order is to be tested by considering whether, in view of all the facts, ,the taking was arbitrary- and unreasonable, or was justified by the public necessities wdiich' the carrier could lawfully be compelled to meet. In other words, the guaranty of the constitution extends to the protection of fundamental rights — to the substance of the order as well as to the notice and hearing which precede it; and the mere form of the proceeding instituted against the company, even though it be admitted to defend, can not convert the process used into due proc- ess of law, if the necessary result be to deprive it of its property without compensation." '"^ d. Street Raikcays. — The business conducted by a street railway company operating under a franchise is not purely private. It is of that class so affected by a public interest that it is subject, within constitutional limits, to the govern- mental power of regulation.'^ '"^ e. Telegraphs and Telephones. — See, generally, ante. Constitutional Law, p. 264; Interstate and Foreign Commerce, p. 689; post. Telegraphs and Telephones. As to stipulations limiting the common-law or statutory liability 531-7ba. Equipment of trains, number r. Ames, 169 U. S. 466. 43 L- Ed. 819; in train crew, etc. — Chicago, etc., R. Co. Chicago, etc., R. Co. v. Thompkins. 176 U. z: Arkansas, 219 U. S. 453, 55 L. Ed. 290, S. 167. 173, 44 L. Ed. 417. See, generally, 31 S. Ct. 275, affirming judgment (1908), ante. DUE PROCESS OF LAW, p. 475; 111 S. W. 456, 86 Ark. 412. See, also, on INTERSTATE AND FOREIGN COM- this point, ante, INTERSTATE AND MERCE. p. 689; post. RAILROADS. FOREIGN COMMERCE, p. 689. 531-70c. Street railways.— Honolulu, 531-70b. Requiring track connections — etc.. Land Co. z: Hawaii. 211 U. S. 282, Interchange of facilities, etc. — Oregon R., 290. 53 L. Ed. 186, 29 S. Ct. 55. See, gen- etc. Co. z: Fairchild, 224 U. S. 510. 523. 56 erally, post, STREET RAILWAYS. And L. Ed. 863, 32 S. Ct. 535, citing Chicago, see post, "Regulation of Rates," VI, L. etc., R. Co. V. Chicago, 166 U. S. 226, 236, As to the exercise of legislative or ad- 41 L. Ed. 979; Missouri Pac. R. Co. z". Ne- ministrative functions by the judiciary braska 164 U. S. 403, 416. 41 L. Ed. 489; with respect to street railways, see ante, Chicago, etc., R. Co. z: Minnesota, 134 U. CONSTITUTIONAL LAW, p. 264. S. 418, 33 L. Ed. 970, 10 S. Ct. 462; Smyth 981 533 POLICE POWER. \o\. IX. of such companies, and the power of the state to forbid the same, see post. Telegraphs and Telephones. f. Warehouses and Elevators. — As to regulations concerning elevators and warehouses as instruments of interstate and foreign commerce, see ante. Inter- state AND Foreign Commerce, p. 689. g. Port and Harbor Regulations. — See ante, Constitutional Law, p. 264; Due Process of Law, p. 475; Interstate and Foreign Commerce, p. 689; Navigable Waters, p. 914; Pilots, p. 950; post. Ships and Shipping; etc. h. Pilots and Pilotage.— See ante. Pilots, p. 950. i. Wharves and JVharfage. — See, generally, ante. Interstate and Foreign Commerce, p. 689; Navigable Waters, p. 914; post, Wharves and Wharf- ingers. As to compensation for the taking or injury of property rights in private wharves, the right to the exclusive use of the same, etc., see ante, DuE Process of Law, p. 475. j. Insurance. — Generally. — Insurance companies, in common with all cor- porations, associations, and individuals, within the jurisdiction of a state, are subject to such regulations, in respect of their relative rights and duties, as the state may, in the exercise of its police power, and in harmony with its own and federal constitution, prescribe for the public convenience and the general good. Regulations having a real, substantial relation to that end, and which are not essentially arbitrary, can not properly be characterized as a deprivation of property without due process of law. They are enacted under the power with which the states have never parted, of caring for the common good within the limits of constitutional authority." ^^ Combinations to Control Prices. — The business of fire insurance is of an extensive and peculiar character, and its management concerns a very large number of people, particularly those w^ho own property and desire to protect themselves by insurance. Fire insurance companies, acting together, may have owners of property practically at their mercy in the matter of rates, and may have in their power to deprive the public generally of the advantages flowing from competition between rival organizations engaged in the business of fire insurance. In order to meet the evils of such combinations or associations, the state is competent to adopt appropriate regulations that will tend to substitute competition in the place of combination or monopoly.'' ^^ 533-73a. Insurance — Generally. — German such statute is a valid exercise of the po- Alliance Ins. Co. v. Hale, 219 U. S. 307, lice power of the state, to discourage mo- 55 L. Ed. 229, 31 S. Ct. 246, citing Jacob- nopolies and to encourage competition in son V. Massachusetts. 197 U. S. 11, 31, the matter of insurance rates. German 49 L. Ed. 643, 25 S. Ct. 358; Lake .Shore, Alliance Ins. Co. z: Hale, 219 U. S. 307, etc., R. Co. 7'. Ohio, 173 U. S. 285, 297, 55 L. Ed. 229, 31 S. Ct. 246. 43 L. Ed. 702, 19 S. Ct. 465: House z'. An insurance company connected with J\Tayes, ^19 U. S. 270, 55 L. Ed. 213, ?1 a tariff association which fixes rates is vS Ct. 234. See, generally, ante, IXSUR- act denied the eaual protection of the ANCE, p. 674. ^ _ laws by Code Ala. 1896, §§ 2619, 2620, un- 533-73b. Combinations to control prices. (ler which the insured or beneficiary in a — German Alliance Ins. Co. z'. Hale. 219 policy issued by such company may re- U. S. 307, 55 L. Ed. 229, 31 S. Ct. 246; cover, in addition to the actual loss or Carroll v. Greenwich Ins. Co., 199 U. S. damage, 25 per cent of the amount of such 401, 411, 50 L. Ed. 246. 26 S. Ct. 66. actuaf loss or damage, since such statute Due process of law is not denied to an places upon an equality in every respect insurance company connected with a tariff all insures which, at the time of issuing association which fixes rates, by Code the insurance, or subsequently, and be- Ala. 1896, §§ 2619, 2620, under vv'hich the fore trial, were in any way connected with insured or beneficiary in a policy issued any other persons, associations, or cor- by such company may recover, in addi- porations which acted together in fixing tion to the actual loss, 25 per cent of the insurance rates. German Alliance Ins. amount of such actual loss or damage, Co. v. Hale, 219 U. S. 307, 55 L. Ed. 229, any stipulation in the contract of insur- 31 S. Ct. 246. ance to the contrary notwithstanding; but "It was for the state, keeping within the 982 Vol. IX. POLICE POWER. 533-536 Reorganization of Insurance Companies by State. — A'ested rights, priv- ileges, or property rights of the members of an association insuring lives upon the co-operative plan are not taken without due process of law, nor is the obligation of any contract right impaired by the reorganization, pursuant to state law, of such association as a mutual level premium company under a new name and without the consent of the members."^^*^ 1. Sale of Drugs, Poisons, etc. — As to the national Pure Food and Drugs Act, see ante. Interstate and Foreign Commerce, p. 689. m. Mafuifacturc and Sale of Into.vicafing Liquors. — See, generally, ante, Interstate and Foreign Commerce, p. 689; Intoxicating Liquors, p. 803; Licenses, p. 826; post. Taxation. That an ordinance regulating the sale of intoxicants in the original package under the authority of the Wilson Act is not unconstitutional because it results in raising some revenue, see ante, "Must Be Reasonable; Arbitrary Interference Not Permissible," VI, K, 3, d, (1). As to the validity of a state law requiring the publication and registry of re- ceipts for payment of federal internal revenue tax upon the business of selling intoxicating liquors, see ante, "Neither Government to Control the Discretion Nor to Interfere with the Exercise of the Acknowledged Powers of the Other," II, A, 5, a, (5). o. Manufacture and Sale of Food Stuffs. — See, generally, as to pure food laws, state and national, ante. Interstate and Foreign Commerce, p. 689. See, also, ante, "Food Stuffs," Yl, J, 6. r. Hawkers, Peddlers, Hucksters, etc. — As to whether the exaction of a li- cense tax from such individuals is an interference with interstate commerce, see ante, Interstate and Foreign Commerce, p. 689. s. Operation of Mines. — See note 86. V. Laundries. — See ante, Constitutional Law, p. 264. As to discrimina- tions in working hours of employees based on sex, see ante, "Must Be Reason- able; Arbitrarv Interference Not Permissible," Yl, K, 3, d, (1) ; "Eight-Hour Laws," VI, K, 4, k, (8), (b), et seq. X. Gift Enterprises. — A "gift enterprise" is defined to be "a scheme for the limits of its constitutional powers, to say of the weight of the coal as originally pro- what particular means it would prescribe duced in the mine, but such statute is a for the protection of the public in such valid exercise of the police power. Judg- matters. The court certainly can not say ment (190G), 98 S. W. 729, 81 Ark. 304. that the means here adopted are not, in affirmed. ' ]\IcLean v. Arkansas, 211 U. S. any real or substantial sense, germane to 539, 53 L. Ed. 315, 29 S. Ct. 206. the end sought to be attained by the stat- The exemption of coal mines not em- ute. Those means may not be the best ploying ten or more men from the opera- that could have been devised, but tiie court tion of Acts Ark. 1905, p. 558. c. 219, § 1, can not, for any such reason, declare them under which miners employed at quantity illegal or beyond the power of the state rates are prevented from contracting for to establish." German Alliance Ins. Co. wages upon the basis of screened coal 7'. Hale, 219 U. S. 307, 55 L. Ed. 220, 31 instead of the weight of the coal as origi- S. Ct. 246. nally produced in the mine, does not 533-730. Reorganization of insurance render such statute invalid under Const. companies by state. — Polk f. Mutual, etc., U. S. amendment fourteen, as denying the Life Ass'n, 207 U. S. 310, 52 L. Ed. 222, equal protection of the laws. Judgment 28 S. Ct. 65. See, also, ante, IMPAIR- (1906), 98 S. W. 729, 81 Ark. 304, affirmed. MENT OF OBLIGATION OF CON- McLean z: Arkansas, 211 U. S. 539, 53 L. TRACTS, p. 624, Ed. 315, 29 S. Ct. 206. 536-86. Operation of mines — Wages of Use of powder and other explosives; employees. — The libertj^ of contract power to regulate size and character of secured by Const. U. S., 14th Amend.. package, etc. — See ante. CONSTITU- against state invasion, is not infringed TIONAL LAW, p. 264; DUE PROCESS by the provision of Act Ark. 1905. OF LAW, p. 475: INTERSTATE AND p. 558, c. 219, § 1, rmder which m.in- FOREIGN COMMERCE, p. 689. See, ers employed at quantity rates are also, post, '"Powder and Other Explo- prevented from contracting for wages sives," VI, K, 5, z, ii. upon the basis of screened coal instead 983 538 POLICE POWER. Vol. IX. division or distribution of certain articles of property, to be determined by chance, amongst those who have taken shares in the scheme." So defined, it can not be said that the words necessarily include conduct which lies out- side the range of the legislative interference in the exercise of police power. In other words, a business or enterprise coming within the scope of this def- inition is within the range of the police power to regulate or prohibit. ^^'^ y. Banks and Banking. — A person desiring to engage in the banking business has no such constitutional right to carry it on at will as to raise him above state laws designed to regulate that business and not manifestly unfit to accom- plish the supposed end, nor greatly in excess of the need, nor arbitrary and capricious in discrimination.^^'' z. Brokerage and Commission Business; Dealing in Futures, etc. — See ante, Brokers, p. 212; Interstate and Foreign Commerce, p. 689. As to gam- bling, option, and margin contracts, see ante. Constitutional Law^, p. 264; Due Process of Law, p. 475; Interstate and Foreign Commerce, p. 689. See, also, ante, "Gambling; Option and Margin Contracts, etc.," VI, E, 1. aa. Boards of Trade and Stock E.x'changes. — A board of trade in the manage- ment of its afifairs has such close and constant relations to the general public that the conduct of its business may be regulated by such means, not arbitrary or unreasonable in their nature, as may be found by the state necessary or needful to protect the people against their unfair practices that may likely occur from time to time. Such regulations do not, in any true sense, interfere with that "liberty of contract" which the individual members of the board of trade are undoubtedly entitled, under the constitution, to enjoy, without un- necessary interference from government ; for the liberty of contract which that instrument protects against invasion by the state is subject to such regulations, of the character just stated, as the state may establish for the protection of the public and the promotion of the general welfare. If such state regulations are not unreasonable, that is, not simply arbitrary nor beyond the necessities of the case, they are not forbidden by the constitution of the United States. S'"' 538-89a. Gift enterprises. — In re Greg- deposit and holding them until the in- ory, 219 U. S. 210, 55 L. Ed. 184, 31 S. Ct. dividual deposits reach an amount suffi- 143. cient to be transmitted to other states Liberty and property are not taken and to foreign countries, is engaged in in- without due process of law, contrary to terstate and foreign commerce, see ante, U. S. Const., fifth amendment, by the pro- BANKS AND BANKING, p. 184; IN- yisions of D. C. Rev. Stat., § 1177, mak- TERSTATE AND FOREIGN COM- ing it a crime to engage in any manner MERGE, p. 689. in any gift enterprise business in the dis- 538-89c. Boards of trade and stock ex- irict. In re Gregory. 219 U. S. 210, 55 L. changes.— House v. Mayes, 219 U. S. 270, Ed. 184, 31 S. Ct. 143. 55 L. Ed. 213, 31 S. Ct. 234, affirmiuj 538-89b. Banks and banking. — Engel v. judgment (1910), 127 S. W. 305, 227 Mo. O'Malley.' 219 U. S. 128, 55 L. Ed. 128, 31 ^^^- ^^e generally, ante, BROKERS, p. S. Ct. 191; Noble State Bank v. Haskell, ^12 And see ante. Gambling— Option 219 U S 104 55 L Ed ll'' 31 S Ct ^ ixlargin Contracts, etc.. VI, E, 1. 186; Shallenberger v. First State Bank! Making criminal any deduction by the 219 U. S. 114, 55 L. Ed. 117, 31 S. Ct. 189; Purchaser from the actual weight of Assaria State Bank v. DoUey, 219 U. S. S^ain. seed, hay. or coal, under a claim 121, 55 L. Ed. 123, 31 S. Ct. 189. See, °5 "-J^ ^l reason of any custom or rule generally, ante, BANKS AND BANK- ?^ ^ ^^^''l °^, ^^'f^^,^' 'L^""^ J/. r^"?* ING, p. 184; CONSTITUTIONAL LAW, J""^.^; ^^^^ ^'^""^K ^J,°- ^T' P" ^^^^' '! 9g^ a valid exercise of the police power of 7 , f , . , r ^^1^ state and does not interfere with the As to the poxyer of the state with refer- \\],^rty of contract nor take property with- ^"5xtJo A^^^'n^^^'fir/A?^^'^^' ^^^ ^"*^' ^'"t due process of law. House v. Mayes, BANKS AND BANKING, p. 184. .,^^ u. S. 270. 55 L. Ed. 213, 31 S. Ct. 234, As to whether a banker, whose business affirming judgment (1910), 127 S. W. 305, consists chiefly in receiving small sums on 227 Mo. 617. 984 Vol. IX. POLICE POWER. 538 bb. Sale of Patented Articles, Patent Rights, etc. — See ante, Constitutional Law, p. 264; Patents, p. 936. cc. Pool Rooms. — That the keeping of a bilHard hall has a harmful tendency is a fact requiring no proof, and incapable of being controverted by testimony that the business in a particular instance is lawfully conducted, free from gaming or anything which could affect the morality of the community or of its patrons. The fact that there has been no disorder or open violation of the law does not prevent the municipal authorities from taking legislative notice of the idleness and other evils which result from the maintenance of a resort where it is the business of one to stimulate others to play beyond what is proper for legitimate recreation. Such ordinances are not aimed at the game, but at the place ; and where, in the exercise of the police power, the municipal au- thorities determine that the keeping of such resorts should be prohibited, the courts can not go behind their finding and inquire into local conditions ; or whether the defendant's hall was an orderly establishment, or had been conducted in such manner as to produce the evils sought to be prevented by the ordinance. ^■•'^ Abolishing Existing Pool Room. — The proprietor of an existing billiard and pool room is not deprived of his property without due process of law, contrary to U. S. Const.. 14th Amend., by the passage of a municipal ordi- nance prohibiting the keeping of billiard or pool tables for hire or public use.^''^ Equal Protection of the Laws. — A municipal ordinance prohibiting the keeping of billiard or pool tables for hire or public use does not deny the equal protection of the law^s, because hotel keepers are permitted to maintain a bil- liard or pool room in which their regular and registered guests may play.^^^ dd. Advertising. — See ante, "Advertising in or on Public Conveyances ; in Streets, Highways, and other Public Places," VI, K, 4, cj4> and references there given. ee. Drnmming and Soliciting on Raikvay Trains, in or about Stations, Rail- way Premises, etc. — The legislature clearly has the power to make regulations for the convenience and comfort of travelers on railroads, and a statute which singles out hotels, lodging houses, eating houses, bath houses, physicians, mas- seurs, surgeons, and other medical practitioners, and prohibits them and their representatives from drumming and soliciting business or patronage upon rail- way trains and premises of common carriers, is a reasonable regulation for the benefit of travelers, and is not unconstitutional as being opposed to the due process or equal protection of clauses of the fourteenth amendment. ^^° ff. Manufacture and Sale of Paints. — The protection of the public against the sale of inferior and adulterated paints is a matter clearly within the police power of the state, and as one of the means to that end the legislature may re- quire that the packages in which paints are sold shall bear labels showing their composition.'^^'' 538-89d. Pool rooms. — Murphy v. Call- 538-89h. Manufacture and sale of fornia, 225 U. S. 623, 56 L. Ed. 1229, 32 paints.— Heath, etc., Mfg. f. Worst, 207 S. Ct. 697. See, also, ante, "Reguladon U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114. May Extend to Suppression," VI, K, 3, Manufacturers and sellers of mixed d, (2). paints containing other ingredients than 538-89e. Abolishing existing pool room. pure linseed oil. pure carbonate of lead. — Murphy 7\ California, 225 U. S. 623, 56 oxid of zinc, turpentine. Japan dryer, and L. Ed. 1229, 32 S. Ct. 697. pure colors, are not deprived of their lib- 538-89f. Equal protection of the laws. — erty without due process of law by a state Murphy v. California, 225 U. S. 623, 56 L. statute which makes such manufacture Ed. 1229, 32 S. Ct. 697. and sale a misdemeanor unless the label 538-89g. Drumming and soliciting on shows the constituent ingredients and railway trains, in or about stations, rail- quantity or amount of each. Heath, etc., way premises, etc.— Williams v. Arkansas, Mfg. Co. f. Worst. 207 U. S. 338, 52 L. 217 U. S. 79, 54 L. Ed. 673, 30 S. Ct. 493, Ed. 236, 28 S. Ct. 114. affirming 108 S. W. 838. The equal protection of the laws is not 985 538 POLICE POWER. \'o\. IX. gg. Gas and Gas Companies. — See, generally, ante, Gas, p. 607. As to regu- lation of gas rates, see post, "Regulation of Rates," VI, L, et seq. As to the conservation of natural gas and the power of the state to prevent the piping of the same beyond state limits, see ante. Interstate and Fore;ign Commerce, p. 689. As to the reasonableness of requirements as to pressure in gas mains, see ante, "Generally," VI, K, 4, n, (1). Waste of Natural Carbonic Acid Gas. — It is within the police power of the state to enact reasonable regulations concerning the pumping of natural mineral waters for the purpose of collecting and vending the natural carbonic acid gas with which such waters are charged, to the end that there shall be no undue waste of the natural resources of the state either to the detriment of the state or to the interest of individual proprietors drawing from the common source of supply. s^' Discrimination — Equal Protection. — Because the statute is directed against pumping from wells bored or drilled into the rock, but not against pumping from wells not penetrating the rock, and because it is directed against pumping for the purpose of collecting the gas and vending it apart from the waters, but not against pumping for other purposes, does not make it arbitrary in its classi- fication, and consequently a denial of the equal protection of the laws to those whom it affects. ^''^ hh. Oil and Other Illuminating Fluids. — See, generally, ante. Mines and Minerals, p. 865. Fixing Standard. — It is within the legislative power to fix a reasonable standard of safety for oils and other illuminating fluids offered for sale within the state, and to forbid the sale of those fluids which do not measure up to such standard; and as the subject is clearly within the police power of the state, it is not within the province of the judiciary to disregard the statute and treat it as void upon the theory that the legislature has acted unwisely in fixing the standard prescribed by the statute, even though it is made to appear that some oils which do not measure up to the standard would be perfectly safe for use.^^'' denied to manufacturers and sellers of not penetrating the rock, and such pump- mixed paints containing other ingredients ing as is done for other purposes than col- than pure linseed oil, pure carbonate of lecting and vending, as a separate corn- lead, oxid of zinc, turpentine, Japan dryer, modity, tlie carbonic acid gas contained and pure colors, by a state statute which in mineral waters, from the operation of makes the manufacture and sale of such the provisions of Laws N. Y. 1908, c. 429, paints a misdemeanor unless the label prohibiting the pumping or artificially shows the constituent ingredients and the drawing of unnatural quantities of mineral quantity or amount of each, because the waters from a common underground manufacture and sale of mixed paints con- source of supply, and wasting them to taining only the ingredients specified in the injury and impairment of other pro- the statute, and, possibly, of all paste prietors. Lindsley v. Natural Carbonic paints, are free from such consequence or Gas Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. condition. Heath, etc., Mfg. Co. v. Worst, Ct. 337. affirming decree (C. C. 1909) 170 207 U. S. 338, 52 L. Ed. 236, 28 S. Ct. 114. F. 1023. 538-89i. Waste of natural carbonic acid 538-89k. Oil and other illuminating fluids gas. — Lindsley v. Natural Carbonic Gas — Fixing standards. — ^Waters-Pierce Oil Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. Co. v. Deselms, 212 U. S. 159, 53 L. Ed. 337, affirming 170 Fed. 1023. See, also, 453, 29 S. Ct. 270. ante, DUE PROCESS OF LAW, p. 475. As to whether such a regulation is an 538-89J. Discrimination — Equal protec- interference with interstate commerce, see tion.— Lindsley v. Natural Carbonic Gas ante, INTERSTATE AND FOREIGN Co., 220 U. S. 61, 55 L. Ed. 369, 31 S. Ct. COMMERCE, p. 68? 337. The exclusion from the territory by The substantial difference in point of Okla. Laws, 1899. p. 186, § 2, of illuminat- harmful result, which, so far as the case as ing fluids which have a specific gravity made shows, may exist, affords a reason- above 46 degrees Baume, is within the able basis, under the equal protection of police power of the territory, although the laws clause of the federal constitution, some oils may thus be excluded which are for the exemption of pumping from wells as safe for use as those which comply with 986 Vol. IX. POLICE POWER 538-539 ii. Powder and Other Explosives. — Powder is an explosive, dangerous to han- dle, the degree of danger corresponding to its quality. It is subject, therefore, to a measure of regulation from which harmless articles' of commerce may be exempt ^^^ jj. Waters, Water Companies, and Waterzvorks. — See, generally, ante, DuE Process of Law, p. 475; Interstate and Foreign Commerce, p. 689; Nav- igable Waters, p. 914; post, Water Companies and Waterworks; Waters and Watercourses. As to the jurisdiction, sovereignty and eminent domain of the state over waters within its territorial limits, see ante, Constitutional, Law, p. 264 : Interstate and Foreign Commerce, p. 689. L. Regulation of Rates. — As to regulation by congress and interstate commerce commission, see ante. Interstate and Foreign Commerce, p. 689. 1. Powder to Regulate — a. In General. — Inherent in Every Sovereignty. — See note 92. Continuing in Its Nature — Can Not Be Bargained Away. — See note 93, the statutory standard. Waters-Pierce Oil Co. T. Deselms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. "Relying upon testimony which was of- fered tending to show that from some lo- calities oils which are perfectly safe are obtained, although they have a specific gravity somewhat above 46 Baume, it is insisted that the law in question was not a legitimate exercise of the police power, since by selecting 46 degrees Baume as the standard, oils are excluded which would be as safe for use as oil complying with the standard fixed by the statute. But we think the court below was clearly right in deciding that, as the subject was within the police power of the state, it was not within the province of the judiciary to disregard the statute and treat it as void upon the theory that the legislature had acted unwisely in fixing the standard which the statute prescribed." Waters- Pierce Oil Co. V. Deselms, 212 U. S. 159, 173, 53 L. Ed. 453, 29 S. Ct. 270. 538-891. Powder and other explosives. — Williams v. Walsh, 222 U. S. 415, 56 L. Ed. 253, 32 S. Ct. 137. Regulating size and character of pack- age. — A statute of Kansas (Laws, 1907, c. 250), which provides that: "It shall be unlawful for any individual, firm or cor- poration to sell, offer for sale or deliver for use at any coal mine or mines in the state of Kansas, black powder in any man- ner except in original packages containing twelve and one-half pounds of powder, said package to be securely sealed; said powder to be delivered bj' the company to the miner at its powder house, not more than three hundred feet from pit-head, un- less hereafter otherwise provided by con- tract; provided, however, this act shall not be construed as in any manner conflicting with any existing contract of sale of black powder," was* a valid exercise of the po- lice power of the state to regulate the handling of explosives, especially in min- ing operations, and was not unconstitu- tional as a regulation of commerce nor as violating the due process or equal protec- tion clauses of the fourteenth amendment. Williams v. Walsh, 222 U. S. 415, 418, 56 L. Ed. 253, 32 S. Ct. 137. The exception in favor of existing con- tracts, contained in Laws Kan. 1907, c. 250, making it criminal to sell or deliver black powder for use in any coal mines in the state except in original sealed packages containing 12^ pounds of powder, does not make such statute repugnant to Const. U. S. amend, fourteen, as denying the rqual protection of the laws. (1912), Williams v. Walsh, 222 U. S. 415, 56 L. Ed. •?53, 32 S. Ct. 137, affirming order (1908) Ex parte Williams, 98 P. 777, 79 Kan. 212. 538-92. Under the powers inherent in every sovereignty. — Home Tel., etc.. Co. r. Los Angeles, 211 U. S. 265, 271, 53 L. Ed. 176, 29 S. Ct. 50. 539-93. Power to regulate can not be bargained away. — Home Tel., etc., Co. f. Los Angeles, 211 U. S. 265, 271, 53 L. Ed. 176, 29 S. Ct. 50. See, also, as to charter and contract rights suspending the power of the state or municipality to regulate rates, ante, IMPAIR^IENT OE OBLI- GATION OF CONTRACTS, p. 624. Power of municipality to bargain or surrender right. — A charter power of a municipal corporation to fix and determine ''barges of telephones and telephone serv- 'ce and connections, is an ample authority for exercising the governmental power to regulate such charges, but it is not an au- thority to enter into a contract to abandon the governmental power itself: in other words it is an authority to prescrilie rates, l)Ut not an authority to enter into a con- tract or agreement as to rates, and a con- tract binding the city to certain rates for the entire period of the franchise of the telephone company can not be sustained upon the authority of such a provision. Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 280, 53 L. Ed. 176, 29 S. Ct. 50. 987 539 POLICE POWER. Vol. IX. Limitations of Power — Confiscation — Right to Compensation — Gen- erally. — See note 94. . Compelling Performance of Some Service at a Loss. — See ante, "Gen- erally," VI, K, 4, n, (1). Same — biscriminating between Certain Classes of Patrons or Con- sumers. — Where neither individual consumers nor the city are complaining of the provision of a statute which prescribes one rate for individual consum- ers of gas and another for the city, the only interest which the gas company has in the question is to find out vv'hether, upon the whole, it is able to realize a sufficient return to comply with what it has a right to demand. So long as the total profits from the gas supplied to all consumers is sufficient to insure the requisite return upon the investment, it is not important that, with relation to some customers, the price is not enough. ^^^ Limits under Reserved Power. — A general power reserved to regulate rates is limited only by the fourteenth amendment.^'*^ b. Power to Prescribe Rates a Legislatk^e Function. — See note 95. c. Delegation of Pozver. — To Commissions, etc. — See ante, "Power to Prescribe Rates a Legislative Function," VI, L, 1, b. 539-94. Limitations of power — Confisca- tion — Right to compensation — Generally. — Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 271, 53 L. Ed. 176, 29 S. Ct. 5(3. Legislative regulation of gas rates is in- valid, where such rates are plainly unrea- sonable to the extent that their enforce- ment will be equivalent to the taking of property for public use without such com- pensation as, under the circumstances, is just, both to the owner and the public. There must be a fair return upon the rea- sonable value of the property at the time it is being used for the public. Willcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. 539-94a. Discriminating between certain classes of patrons or consumers — Rates too low as to some. — Willcox v. Consoli- dated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. In determining -the reasonableness of Laws N. Y. 1905, p. 2091, c. 736. and Laws 1906, p. 235, c. 125, fixing gas rates in New York city, a discrimination between indi- vidual consumers and the city is not ma- terial to the inquiry, if the total profits from the gas supplied to all consumers is sufficient to insure the requisite return upon the property used by the gas com- pany in its business. Decree (C. C. 1907) Consolidated Gas Co. v. City of New York, 157 F. 849, reversed. Willcox v. Consolidated Gas Co.. 232 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. 539-94b. Limits under reserved power. — Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655, 56 L. Ed. 594, 32 S. Ct. 389. Half fares for school children. — See post, "Street Railways," VL L, 1, d, (4). 539-95. Power to prescribe rates a leg- islative function. — The function of rate making is purely legislative in its charac- ter, and this is true, whether it is exercised directly by the legislature itself or by some subordinate or administrative body, to whom the power of fixing rates in detail has been delegated. The completed act derives its authority from the legislature and invist be regarded as an exercise of the legislative power. Knoxville v. Knox- ville Water Co., 212 U. S. 1, 53 L. Ed. 373, 29 S. Ct. 148; Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67; Honolulu, etc., Land Co. v. Hawaii, 211 U. S. 282, 53 L. Ed. 186, 29 S. Ct. 55; Home Tel., etc., Co. v. Los An- geles, 211 U. S. 265, 271, 53 L. Ed. 176, 29 S. Ct. 50. See, also, ante, DUE PROC- ESS OF LAW, p. 475. The enforcement of the continuance by a H.nwaiian street railway company ot a 10-minute schedule on certain of its lines, upon the ground that the public conven- ience demands such a schedule, is not within the limits of the judicial power, and is totally inconsistent with the power to regulate the management of the street railway in this respect, which is untimately vested by Haw. Rev. Laws, § 843 (Sess. Laws 1905, Act No. 78), in the executive authorities. Honolulu, etc.. Land Co. v. Hawaii, 211 U. S. 282, 53 L. Ed. 186, 29 S. Ct. 55. The power to regulate rates and sched- ules is a legislative function, and it is an unwarranted assumption of legislative powers for a court, not invested with any special statutory authority, nor having the property in its control by receivership, to undertake, solely by virtue of its gen- eral judicial powers, to control to such an extent and in such detail the business of a transportation corporation. A fortiori is this true where the legislature has dele- gated this power to an administrative iaody. Honolulu, etc., Land Co. v. Hawaii, 211 U. S. 282, 53 L. Ed. 186, 29 S. Ct. 55. 9S8 Vol. IX. POLICE POWER. 539-541 To Municipal Corporations. — See note 97. d. Exercise of the Power zcitli Respect to Particular Corporations — (1) Rail- roads and Other Public Service Companies. — See, generally, ante, Carriers, p. 216; post, Railroads. (2) Stockyards. — As to the regulation of stockyard and terminal charges, see ante, Interstate and Foreign Commerce, pp. 689, 761. (3) Grain Elevators. — See ante. Interstate and Foreign Commerce, p. 689. (4) Street Raihvays. — See, generally, post. Street Railways. Half Fares for Children. — A street railway company whose charter subjects it to "all the duties, liabilities, and restrictions set forth in all general laws now or hereafter in force, relating to street railway companies," is bound by the requirement of a statute previously enacted, that street railway companies shall transport school children at a reduced rate, although such statute may be un- constitutional as to already existing corporations.^'' (5) Telegraphs and Telephones. — See post, Telegraphs and Telephones. (6) Water Companies. — See post, Water Companies and Waterworks. (7) Turnpikes and Tollroads. — Suspending the collection of tolls by a turn- pike company, conformably to a state statute, which was in force long before the road was constructed or acquired by the plaintififs, until the roads shall be put in proper repair, does not take property without due process of law, con- trary to U. S. Const., 14th Amendment, because the travel does not yield a sufficient revenue to keep the roads in good order. ^'' V/i. Right oe Interested Parties to Notice and Hearing — a. Before Establishment of Rate. — See ante, Due Process of Law, p. 475. b. After Establishment of Rate. — See, generally, post, "Right of Courts to Interfere," VI, L, 2, a. See, also, ante, DuE Process of Law, p. 475. As to whether the legislature can, by providing for a notice and hearing to in- terested parties previous to the adoption of a rate, render the statute or order res ad judicata and preclude the right to afterwards resort to the courts to test 539-97. Delegation of power to munici- ' See. also. post. TURX PIKES AND palities.— Home Tel., etc., Co. v. Los An- TOLLROADS. seles, 211 U. S. 2(55, 271, 53 L. Ed. 176, 29 The statute in this case had l)een a law S. Ct. 50. of Virginia, with little change, since Feb- 541-4a. Half fares for children.— Inter- ruary 7, 1817, and the motions below did state, etc., St. R. Co. v. Massachusetts, 207 "ot amount to a clami against the rates U. S. 79, 52 L Ed. Ill, 28 S. Ct. 26. Per se, but simply asserted that as the ATass Rev Taws rhan 112 8 72 re- travel on the turnpikes was not sufficient Mass Kev. i.aws, chap. 112, § ^2, re ^^ ^^^^^ ^j j^. j^ti^,, ^o be profitable, quired the railway company o transport ^j^^^ j^ ^^ ^J ^^^^^^^ ^ sufficient rev- children to and from the public schools ^^^^ ^^ ^^^>^,^ ^,1;^ ^^^^j^ ^^ ,^^ ^ .^ for hall tare. As education is one ot the j j ^i r ^u i r ,.• • „ r u- u ^u 1- good order, theretore tne obligation im- purposes for which the police power may ^ i t ^i ^ ^ ,. ^ i.. ,^.,,.;i t ^ -jiU-ijj 4. li posed bv the statute and voluntarily as- be exercised, this l)urden does not exceed i^,,.^„j '. i ,. „ ,. ^„ u^ ^„(^..^^a ti,^ ■ ^ ,. -i • • r ,-1 J-,.- u- 1 sumed ought not to be entorceu. ine its limits, in view of the condition which . .'^ . r ^.t • ■^^^.. ^^-./t ^, A/r 1 <-<- ^11- 1 i ■ i. mere statement of this proposition, said the Massachusetts court believed to exist ., ^ ^, ^ ^a-^. „. ,^ f^ ^,V^ki;.i, .Vo ^^ ^, T ^ ,. ^ i o^ -o r< -Mt the court, was sufficient to establish its en- saclnisett" 207 U 179 5o L Ed llf 'og ^ire want of merit: that to suspend the S pf or taking of tolls while the roads were out b. L-t. ^b. ^^ repair was not a taking of property, The majority of the court considered i^^t ^^s simply a method provided by stat- that this case was disposed of by the fact ute to enforce the discharge of the public that the statute in question was in force ^I^ty respecting the safe and convenient when the plaintiff in error took its charter, maintenance of a public highway. In and the court confined itself to that other words, as observed by the attorney ground. Interstate, etc., St. R. Co. v. Mas- g-eneral for the commonwealth, the bur- sachusetts, 207 U. S. 79, 52 L. Ed. Ill, 28 ^^^ of keeping the turnpikes in repair was S. Ct. 26. made a condition precedent to the right 541-4b. Turnpikes and tollroads.— Nor- to collect tolls. Norfolk, etc.. Turnpike folk, etc.. Turnpike Co. :'. Virginia, Co. v. Virginia, 225 U. S. 264, 56 L. Ed. 225 U. S. 264, 56 L. Ed. 1082, .32 S. Ct. S28. 1082, 32 S. Ct. 828. 9S9 542 POLICE POWER. Vol. IX. its reasonableness, see ante, Constitutional Law, p. 264; Due; Process of Law, p. 475. As to the validity of a statute which imposes penalties so severe as to deter parties from resorting to the courts to test the reasonableness of its provisions and vindicate their rights, see ante, Constitutional Law, p. 264; Due Process of Law, p. 475. 1>4. Remedy against Unjust Rates. — See ante, Due Process oe Law, p. 475. See, also, post, ''Right of Courts to Interfere," VI, L, 2, a. 2. Reasonableness of Rates — a. Right of Courts to Interfere. — In Gen- eral — Conclusiveness of Legislative Determination, — See note 6. Duty to Exhaust Remedies in State Courts. — Where, under the state law, the parties in interest are given notice and opportunity to be heard before a railroad or corporation commission in a proceeding to fix rates, and are given an appeal, as a matter of right, from the order of the commission prescribing the rates, to a state court of last resort, the plaintiffs, before filing a bill to en- join the enforcement of the rates, should first exercise their right of appeal to the state court of last resort, and thus make sure that the state, in its final ac- tion through that body or tribunal having the last word upon the subject, will not respect what the plaintiffs consider their rights to be. If they should be met by an adverse decision in the state court of last resort, they will then be at liberty to make their application to the federal courts without fear of being met by plea of res judicata.*'** Same — Effect of Existence of Alleged Contract Right. — The duty of a plaintiff corporation to first exercise its right of appeal to the state court of last resort before filing a bill in the federal court to enjoin the enforcement of the order prescribing rates is not affected by the fact that the plaintiiT has, or claims to have, a contract right against the alleged reduction of the rates. On the question of contract, as on that of confiscation, it is reasonable and proper that the case should be laid, in the first instance, before the state body having the last word upon the subject.*"' Dismissal without Prejudice Where Plaintiff Mistakes Its Remedy.— \\'here a public service corporation mistakes its remedy and files its bill for injunction in the federal court without first exercising its right of appeal to the state court of last resort, and, while the proceedings on such bill are pending, the time within which the appeal to the state court of last resort might have been taken goes by, the federal supreme court will retain the bill to see whether the state court will, if an appeal be taken, declare the same to be too late. If such appeal to the state court of last resort is declared to be too late, the su- preme court of the United States will then render a decree upon the bill. On the other hand, if the state court entertayis the appeal, the bill- in the federal court will be dismissed without prejudice to the right to file it again in the 542-6. Conclusiveness of legislative de- 212 U. S. 1, 53 L. Ed. 371. 29 S. Ct. 148. termination.— The courts of the states. See. also, ante, DUE PROCESS OF LAW, and certainly the courts of the United p. 47.5. States, are open to those who complain Power of legislature to make statute or that their property has been confiscated l)y order res adjudicata by giving notice and an act of regulation of this kind, and the hearing before adoption of rate. — See iuitc, latter courts will, under all circumstances, CONSTITUTIONAL LAW, p. 264; LHJE determine for themselves whether such PROCESS OF LAW, p. 475. confiscation exists. Home Tel., etc., Co. 542-6a. Duty to exhaust remedies in V. Los Angeles, 211 U. S. 265, 278, 53 L. state courts. — Prentis v. Atlantic Coast Ed. 176. 29 S. Ct. 50. Line Co., 211 U. S. 210, 53 L. Ed. 150, ":'.) The courts in clear cases, ought not to S. Ct. 67. hestitate to arrest the operation of a con- 542-6b. Same — Effect of existence of al- fiscatory law, but they ought to refrain leged contract right. — Prentis v. Atlantic from interfering in cases of any other Coast Line Co., 211 U. S. 210, 53 L. Ed. kind. Knoxville v. Knoxville Water C.x, 150, 29 S. Ct. 67. 990 Vol. IX. POLICE POWER. 542-543 event the final decision of the state court should be adverse to the federal rights set up.*^'" Not Necessary to Await Prosecution. — It is not necessary to wait until the institution of a prosecution under an alleged unconstitutional rate law be- fore applying for an injunction to restrain the enforcement of the same.*''^ Suit against State, — When the rate is fixed by a state railroad or a corpora- tion commission and affirmed upon appeal to the state court of last resort, a bill against the commission to restrain the parties from enforcing it is not bad as an attempt to enjoin legislation or as a suit against the state, but is the proper form of the remedy.^'' Enjoining Other Courts. — Proceedings to fix rates are legislative in their nature and are not proceedings in a court within the meaning of Rev. Stats., § 720, which section forbids federal courts to enjoin proceedings in state courts. And it does not matter what may be the general or dominant character of the body in which such proceedings may take place. The question depends not upon the character of a body but upon the character of the proceedings. Hence a bill will lie in a federal court against a state corporation commission to enjoin it from enforcing rates which it has prescribed and which are alleged to be confiscatory.^'^ Presumption and Burden of Proof as to Reasonableness of Rate. — In judging the constitutionality of legislative or administrative orders regulat- ing rates, the presumption is in favor of validity, and the burden is upon those W'ho oppose such regulations to show their invalidit}'. To invalidate such regulations, it is not sufficient to show mere possibility of evil under the statute, but, on the other hand, if the validity of such regulations can be sustained upon any conceivable state of facts, the existence of those facts, in the absence of proof to the contrary, will be presumed. ^^ Court to Enjoin Rate Only Where Same Clearly Unconstitutional. — See note 9. 542-6C. Dismissal without prejudice where plaintiff mistakes its remedy. — Prentis r. Atlantic Coast Line Co., 211 U. S. ^'10. 53 L. Ed. 150, 29 S. Ct. G7. 542-6d. Not necessary to await prosecu- tion. — Prentis v. Atlantic Coast Line Co., 211 U. S. 210. 5.3 L. Ed. 150, 29 S. Ct. 67. 542-6e. Suit against state. — Prentis v. Atlantic Coast Line Co.. 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. See, also, Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. See, s:enerally, ante, DUB PROCESS OF LAW, p. 475; post, STATES. 542-6f. Enjoining other courts. — Prentis V. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67, citing McNeill V. Southern R. Co.. 202 U. S. 543, 50 L. Ed. 1142; Ex parte Virginia, 100 U. S. 339. 349. 25 L. Ed. 676. 543-8a. Presumption and burden of proof as to reasonableness of rate. — Home Tel., etc., Co. v. Los Angeles. 211 U. S. 265, 281, 53 L. Ed. 176. 29 S. Ct. 50. See, also, ante, CONSTITUTIONAL LAW, p. 264. An act of a state legislature, fixing rates for either passenger or freight transporta- tion is to be regarded as prima facie valid, and the onus rests upon the carrier to prove its assertion to the contrary. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. If a company of this kind chooses to decline to observe an ordinance of this nature, and prefers rather to go into court with the claim that the ordinance is un- constitutional, it must be prepared to show to the satisfaction of the court that the ordinance would necessarily be so con- fiscatory in its effect to violate the con- stitution of the United States. Knoxville v. Knoxville Water Co., 212 U. S. '1, 53 L. Ed. 371. 29 S. Ct. 148; Ex parte Young, 209 U. S. 123. 52 L. Ed. 714, 28 S. Ct. 441. 543-9. Court to enjoin rate only where same clearly unconstitutional. — Judicial interference should never occur unless the case presents, clearly and bej^ond all doubt, such a flagrant attack upon the rights of property under the guise of reg- ulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use. Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148; Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441; San Diego Land, etc., Co. v. Na- tional City, 174 U. S. 739, 754, 43 L. Ed. 1154, 19 S. Ct. 804. The case must be a clear one before 091 543-544 POLICE POWER. Vol. IX. Rates to Be Given Fair Trial in Case of Doubt. — If there is any reason- able doubt as to the reasonableness of the rates a court of equity ought not to interfere by injunction with state legislation fixing the same before a fair trial has been made of continuing the business under such rates, especially where the rates complained of show a very narrow line of division between possible confiscation and proper regulation, as based upon the findings as to the value of the property, and the division depends upon variant opinions as to value and upon the results in the future of operating under such rates.*^^ Same — Dismissal without Prejudice. — The dismissal of a bill which seeks to enjoin the enforcement of legislative regulation of gas rates as con- fiscatory in advance of any actual experience of the practical result of such rates should be without prejudice, where such practical experience may prove that the complainant can not obtain a fair return upon the property used by it in its business.^'' Separability of Statute or Ordinance. — The invalidity of provisions as to gas pressure and penalties contained in a statute regulating gas rates, does not invalidate the other provisions of the act respecting rates, from which the invalid provisions are clearly separable.^'^ c. Basis for Calculating Reasonableness of Rates — (1) In General. — See note 16. the courts should be asked to interfere by injunction in advance of any actual ex- perience of the practical result of such rates. Willcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. No injunction ought to be awarded by a federal court against the enforcement of a state railroad rate law which is alleged to violate the federal constitution, unless the case is reasonably free from doubt. Ex parte Young. 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. Legislative regulation of gas rates is in- valid only where such rates are so plainly unreasonable that their enforcement will be equivalent to the taking of property for public use without such compensation as, under the circumstances, is just, both to tjie owner and the public. Decree (C. C. 1907), Consolidated Gas Co. v. City of New York, 157 F. 849, reversed. Willcox V. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. 543-9a. Rates to be given fair trial in case of doubt. — Willcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. The enforcement of a municipal ordi- nance fixing telephone rates should not be enjoined as confiscatory before giving such ordinance a trial to show its actual effect, where the evidence leaves the prob- able result very close to the dividing line between the yield of a fair return and con- fiscation. Louisville zk Cumberland Tel., etc., Co., 225 U. S. 430, 56 L. Ed. 1151, 32 S. Ct. 741. 543-9b. Same — Dismissal without prej- udice.- — Willcox V. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382. 29 S. Ct. 192. See in accord, as to water company. Knox- ville V. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. The evidence in this case considered, and held that a judgment of a state court, dismissing a bill to restrain the enforce- ment of an ordinance fixing 90 cents per thousand cubic feet as a maximum gas rate, without prejudice to a later suit after the ordinance, which had not been enforced before the commencement of the suit, had been given a fair test, the court estimating on a value fixed by it for the plant considerably in excess of its cost, that the return under the ordinance would be over 6 per cent, will not be disturbed on review by the supreme court of the United States on the ground that the rates fixed by the ordinance was confiscatory and a deprivation of the property without due process of law in violation of the fourteenth amendment. Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655, 56 L. Ed. 594, 32 S. Ct. 389. 543-90. Separability of statute or ordi- nance. — Willcox z'. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. As to unreasonable requirements as to gas pressure, see ante, "Generally," VL K, 4, n, (1). 544-16. Proper basis of calculation stated. — The rule by which to determine this question is pretty well established. The rates must be plainly unreasonable to the extent that their enforcement would be equivalent to the taking of property for public use without such compensation as, under the circuinstances, is just both to the owner and the public. Willcox v. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192, citing San Diego Land, etc., Co. v. National City, 174 U. S. 739, 757, 43 L. Ed. 1154, 19 S. Ct. 804; San Diego Land, etc., Co. v. Jasper, 189 U. S. 439, 442, 47 L. Ed. 892, 23 S. Ct. 571. 992 Vol. IX. POLICE POWER. 545 (1^) J^ ablation of Property. — Tliere must be a fair return upon the rea- sonable value of the property at the time it is being used for the public, and the valuation of the property of the company, upon which it is entitled to a fair return, must, as a general rule, be determined as of the time when the inquiry is made regarding the reasonableness of rates fixed by statute, giving the company the benefit of any increase in the value of the property since it was acquired. ^^'^ (I14) Good JJlll. — Xo allowance for the value of the good will should be made in estimating the value of the property of a gas company upon which it is entitled to earn a fair return, for the purpose of testing the reasonableness of the rates fixed by statute, where such company is secure from possible com- petition.^'^" (1/4) Franchises. — The valuation of the franchises of the constituent gas companies as fixed by them when organizing a consolidated corporation, which valuation was included in the total sum of which the consolidated corporation issued its stock, must be accepted by the courts in testing the reasonableness of legislative regulation of gas rates as conclusive of such value at the time of con- solidation, where the validity of the agreement fixing the valuation has always been recognized, and the stock has earned large dividends and had been largely dealt in for many years on the basis of the validity of the valuation of the stock. ^^'^ Increase Since Consolidation. — Increase since consolidation of the tangi- ble assets of a consolidated gas company and in the amount of gas supplied by it does not justify the court, when testing the reasonableness of the rates fixed by statute, in attributing a proportional increase to the value of the fran- chises as fixed by the constituent companies at the time of consolidation. ^-'^ Valuation of Franchise for Taxation. — The assessed value for taxation of the franchises of a gas company furnishes no criterion by which to ascertain their value, when testing the reasonableness of gas rates fi.xed by statute, where the taxes are treated by the company as part of its operating expenses, to be paid out of its earnings before the net amount applicable to dividends can be ascertained.^®^ (l-;4) Capitalizatioi. — Capitalization affords no guide to the present value of the tangible property of a waterworks company which is objecting to the rates fixed by municipal ordinance as confiscatory, where substantially all the common and preferred stock was issued under construction contracts entered into with persons who controlled the corporate action, and was greatly in ex- cess of the true value of the property furnished under the contracts. ^^^ (2) Original Cost. — Depreciation of Plant. — Depreciation represented by the destruction or obsolescence of parts of the original plant and by impair- ment in value of those parts which remain in existence and continue in use can not be added to the present value of the surviving parts when determining the value of the tangible property of a waterworks company for the purpose of testing the reasonableness of the rates fixed by municipal ordinance. -^^ 545-18a. Valuation of property — Gener- 545-18e. Valuation of franchise for tax- ally. — Willcox :•. Consolidated Gas Co., ation. — Willcox t'. Consolidated Gas Co., 212 U. S. 19. 5.3 L. Ed. 382, 29 S. Ct. 192. 212 U. S. 19. .53 L. Kd. 382. 29 S. Ct. 192. 545-18b. Good will. — Willcox v. Consol- 545-18f. Capitalization. — Knoxville r-. idated Gas Co.. 212 U. S. 19, .53- L. Ed. 382. Knoxville Water Co., 212 U. S. 1. 53 L. 29 S. Ct. 192. Ed. 371, 29 S. Ct. 148. 545-18C. Value of franchise.— Willcox :■. 545-21a. Original cost— Depreciation of Consolidated Gas Co., 212 U. S. 19, 53 L. plant.— Knoxville v. Knoxville Water Co., Ed. 382, 29 S. Ct. 192. 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 545-18d. Increase since consolidation. — A water plant with all its additions be- Willcox c'. Consolidated Gas Co., 212 U. S. gins to depreciate in value from the mo- 19, 53 L. Ed. 382, 29 S. Ct. 192. ment of its use. and before coming- to the 12 U S Enc— 63 993 545-547 POUCH POWER. Vol. IX. (2>^) Cost of Reproduction. — Deduction for Depreciation.— A deduc- tion for depreciation from age and use must be made from the estimated cost of reproducing a waterworks plant when determining the present value of the tangible property for the purpose of testing the reasonableness of the rates fixed by a municipal ordinance.^^'' (3) Capacity to Pay Dizndends as a Factor. — Generally. — See note 22. Right to Discounts for Prompt Payment to Be Considered.— The ab- sence of any requirement in a municipal ordinance fixing water rates, that the waterworks company shall continue to give a discount for prompt payment, must be taken into consideration when determining, for the purpose of testing the reasonableness of such rates, the reduction in the company's income which Avill be produced by the infringement of such ordinance. 22a (35^) Previous Income. — The net income of a waterworks company during the years succeeding the passage of a municipal ordinance fixing maximum water rates, which has never been enforced, should be considered by the courts in determining the reasonableness of such rates. ^2^ (4) Valuation of Property for Taxation. — See ante, "Franchises," VI, L, 2, c, (1/.). M. Conservation of Natural Resources — 1. Power of State in Gen- eral. — It is recognized that the state, as quasi sovereign and representative of the interests of the public, has a standing in court to protect the atmosphere, the water, and the forests within its territory, irrespective of the assent or dis- sent of the private owners of the land most immediately concerned. ^^^ Exercise of Power Not Dependent upon Exact Estimates nor Specu- lative Needs. — The constitutional power of the state to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any question of profit or net return at all, the company is entitled to earn a sufficient sum annually to provide not only for the current repairs but for making good de- preciation and replacing the parts of the property when they come to an end of their life. The company can not there- fore claim, when an attempt is made to regulate its rates, that its income in the past has not been sufficient to make these repairs and to replace worn out parts, ond that it has had to invest new capital, not derived from its earnings, for the purpose of making these repairs, _ and that in es- tablishing the value of its property for the purpose of determining whether the proposed rates are reasonable it is entitled to add to the present value of the plant, the amount of outside capital it has been compelled to invest in the unkeep of its property. Knoxville v. Knoxville Water Co.. 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 545-21b. Cost of reproduction — Deduc- tion for depreciation. — Knoxville v. Knox- ville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 546-22. Capacity to pay dividends as a factor. — Whether property has been taken imconstitutionally through the promulga- tion and enforcement of an order prescrib- ing rates depends upon valuation of the property, the income arising from the pro- posed rates and the proportion between the two. Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. There is no particular rate of compen- sation which any corporation subject to legislative control respecting rates has the right to obtain without legislative in- terference. Willcox V. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed 382, 29 S. Ct. 192. Gas rates, which will yield to a corpo- ration having a monopoly of the gas serv- ice in New York city a return of 6 per cent upon the fair value of the property actually used by such company in its busi- ness, are not confiscatory. Willcox v.. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. See in accord, as to a water company, Knoxville v. Knox- ville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 546-22a. Right to discounts for prompt payment to be considered. — Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 546-22b. Previous income. — Knoxville 7'. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. 547-26a. Conservation of natural re- sources — Power of state in general. — Hudson County Water Co. v. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529; Kansas v. Colorado, 185 U. S. 125, 141, 46. L. Ed. 838, 22 S. Ct. 552. 994 Vol. IX. POSSBSSIOX, WRIT OF. 547 nice estimate of the extent of present use or speculation as to future needs.-'*^*' 2. Power as Applied to Particular Subjects. — Natural Gas. — As to the power of the state to prohibit the exportation of natural gas to other states, see ante, Constitutional Law, p. 264; Due Process oe Law, p. 475; Gas, p. 607; Interstate and Foreign Commerce, p. 689. Natural Mineral Waters and Carbonic Acid Gas.— See ante. "Gas and Gas Companies." \'I, K, 3, gg, and references there given. Diversion of Waters of State Stream. — The police power of the state justifies the enactment of a law under which a riparian owner may be pre- vented from diverting the waters of a stream of such state into any other state, for use therein. -^"^ Fish and Game. — See ante, "Fish and Game." \l, I, and references there given. N. Control of Counties, Municipal Corporations and Other Municipal Subdivisions. — See ante. Coxstitutioxal Law, p. 264: Due Process oe Law, p. 475; Impairment of Obligation of Contracts, p. 624; Municipal Corporations, p. 895. 0. Separation of the Races in Schools, Public Conveyances, etc. — See ante. Civil Rights, p. 236; Constitutional Law. p. 264; Due Process OF Law. p. 475 ; Interstate and Foreign Commerce, p. 689. P. Control of Coin or Currency, — As to whether the Philippine Act for- bidding the exportation of the silver coinage of those islands is a valid exercise of the police power, see ante. Constitutional Law, p. 264. POLICY OF INSURANCE.— See ante. Insurance, p. 674. POLITICAL COMMUNITY.— See note la. POLITICAL CONTRIBUTIONS.— See post, Public Officers. PORTO RICO,— See ante, Constitutional Law, p. 264; post, Territories. POSSESSION. — See ante. Limitation of Actions and Adverse Posses- sion, p. 828; post. Quieting Title. POSSESSION, WRIT OF.— See the title Possession, Writ of, vol. 9, p. 549, and references there given. 547-26b. Exercise of power not depend- stream. — Hudson County Water Co. 7: ent upon exact estimates nor speculative AlcCarter, 209 U. S. 349, 52 L. Ed. 828, 28 needs.— Hudson County Water Co. z: Mc- S. Ct. 529. See, also, ante, CO\STlTU- Cirtcr, 209 U. S. £49. 52 L. Ed. 828, 28 S. TIONAL LAW, p. 264; DUE PROCESS Ct. 529. OF LAW, p. 475; INTERSTATE AND "We are of opinion, that the constitu- FOREIGN COMMERCE, p. 689. tional power of the state to insist that its 547-la. Political community. — That tliere natural advantages shall remain unim- existed an organized political community paired by its citizens is not dependent in the Hawaiian Islands, exercising politi- upon any nice estimate of the extent of cal, civil and penal jurisdiction through- present use or speculation as to future out what now constitutes the territory of needs. The legal conception of the nee- Hawaii, including jurisdiction over the essary is apt to be confined to somewhat bay or haven in question, when that ter- rudimentary wants, and there are benefits ritory was acquired under the joint reso- from a great river that might escape a lution of congress of July 7, 1 898, did not lawyer's view. But the state is not re- prevent the operation of § 5339, Rev. Stat., quired to submit even to an aesthetic anal- defining criminal jurisdiction of federal ysis. Any analysis may be inadequate. courts. That political community did It finds itself in possession of what all ad- not constitute one of the states of the mit to be a great public good, and what United States; and if the other jurisdic- it has it may keep and give no one to rea- tional facts existed, § 5339 came at son for its will." Hudson County Water once into operation. Wynne v. United Co. V. McCarter, 209 U. S. 349, 52 L. Ed. States, 217 U. S. 234, 243, 54 L. Ed. 748, 828, 28 S. Ct. 529. 30 S. Ct. 447. See ante, COURTS, n. 398; 547-26C. Diversion of waters of state CRIMINAL LAW, p. 434. 995 553-567 POSTAL LAWS. Vol. IX. POSTAL LAWS. II. Power of the Federal Government under the Constitution, 996. A. In General. 996. XII. Carriage of Mails, 996. A. Power of Postmaster General, 996. B. Contracts for Carriage, 996. 3. Compensation, 996. b><. Implied Contract, 996. c. Compensation for Carriage over Subsidized Railroads, 997. 7. Construction of Contracts, 997. XIV. Offenses against the Postal Laws, 997. B. Particular Offenses, 997. 8. Unlawful Use of Mail, 997. b. Use for Disseminating flatter Pertaining to Lotteries, 997. c. Use for Disseminating [Matter Pertaining to Schemes to De- fraud or to Sell Counterfeit ]\Ioney, 997. XV. Rulings of PostofRce Department Determining to Whom Mail Shall Be Delivered, ')')8. CROSS REFERENCES. See the title Postal Laws, vol. 9, p. 550, and references there given. In addition, see ante. Carriers, p. 216; Injunctions, p. 657. II. Power of the Federal Government under the Constitution. A. In General. — The power of congress to establish postofhces and post roads is not infringed by Act Pa. April 4, 1868, under which a railway postal clerk, injured in the course of his employment, can have no greater rights against the railway company than if he were an employee."'' XII. Carriage of Mails. A. Power of Postmaster General. — See note 99. B. Contracts for Carriage — 3. Compensation — hYz. Implied Contract. — The United States is not liable as on an implied contract to pay the reason- able value of the railway postoffi.ce car service furnished and actually used by the postoffice department, consisting of "full lines" of cars 60 feet in length, where the railway company, being under no obligation to carry the mails or to supply postoffice cars, chose to furnish such service after being informed that the department only needed and would only pay for 50-foot cars on the return trip, and had established "half lines," consisting of 60-foot cars going and 50-foot cars returning, instead of exercising its right to' decline to supply 553-7a. Statute held not to infringe way postoffice car service not exceediner power of congress. — Alar tin r. Pittsburg, the statutory maximum, which varies in etc.. R. Co., 203 U. S. 284, 51 L. Ed. 184, 27 proportion to the length of the car, ex- S. Ct. 100. affirming 72 Ohio St. 659, 76 N. tends to fixing the same price for the E 1129. See ante, CARRIERS, p. 216. longer as for the shorter cars, and to abol- 567-99. The authority of the postmaster ishing "full lines" or establishing "half general under the Act of Alarch 2, 1907 (.34 lines," and adjusting the rates accordingly. Stat, at L. 1212, chap. 2513, U. S. Comp. Atchison, etc.. R. Co. v. United States. Stat. Supp. 1911, p. 1148), to name any 225 U. S. 640, 56 L. Ed. 1236, 32 S. Ct. 702. rate for additional compensation for rail- 996 Vol. IX. POSTAL LAU S. 567-586 the service on the conditions named. "'^ c. Compensation for Carriage over Subsidized Railroads. — See note 11. 7. CoxsTRUCTiox OF CONTRACTS. — See note 47. XIV. Offenses against the Postal Laws. B. Particular Offenses — 8. Uxl.wvful. Use of :\Iail— b. Use for Dis- seminating Matter Pertaining to Lotteries. — The offense of using the mails in furtherance of "schemes devised for the purpose of obtaining money or prop- erty under false pretenses,"' denounced by Rev. St., § 3894 ( U. S.'Comp. St. 1901. p. 2659), includes only schemes having a similitude to the lottery and other like schemes particularly described by the particular words of the sec- tion, and does not cover the use of the mails to promote other schemes to obtain money or property by means of false pretenses, which is embraced by the pro- visions of section 5480 ( U. S. Comp. St. 1901, p. 3696), making criminal the use of the mails to carry on any scheme of artifice to defraud. ^'^ c. Use for Disseminating Matter Pertaining to Schemes to Defraud or to Sell Counterfeit Money. — Laying the venue of the trial of a conspiracy to com- mit the oft'ense against the United States denounced by the United States Re- vised Statute, § 5480,-'"^ making criminal the use of the mails to carry on a scheme or artifice to defraud, in the state and federal judicial district where an overt act is performed, satisfies the recjuirement of the sixth amendment to the constitution of the United States that all crimes be tried in the state and district where committed.-*^'' The exact place of the formation of such a conspiracy need not be stated in an indictment which lays the venue at the 567-lOa. United States not liable as on an implied contract. — Atchison, etc., R. Co. f. United States. 225 U. S. 640. 56 L. Ed. 1236. 32 S. Ct. 702. 568-11. Construction of statute fixing rates on subsidized railroads. — A railway company carrying the mails over a con- tinuous route which includes certain land- aided railroads is only entitled to the land- grant rates for those portions of the route, under the provisions of Act July 12. 1S76. c. 179, § 13, 19 Stat. 82 ("U. S. Comp. St. 1901. p. 2722), that railroad companies whose railroad was constructed in whole or in part by a grant of land made by con- gress on the condition that the mails should be transported over their roads at such price as congress should by law direct should receive only SO per cent of the compensation fixed by that act for similar service for nonland-aided roads, which provisions must be construed as extend- ing not only to the original land-aided companies, but to every other company carrying the mails over such roads. Judg- ment (1908), 43 Ct. CI. 595, affirmed. Chi- cago, etc., R. Co. V. United States. 217 U. S.'lSO, 54 U. Ed. 721. 30 S. Ct. 470. 572-47. Screen wagon mail service — Service included in contract. — The service contemplated by a screen wagon mail service contract for carriage between the postoffice and railway mail stations at Omaha must be deemed to include the mails to and from all the railroads using the union station at that point, although some of such railroads were not specific- ally named in the contract, where it had long been the practice of the government and the screen wagon contractors to re- gard such service as a part of the contract, and the public advertisement for propos- als, expressl)^ made a part of the contract, warned bidders to familiarize themselves with the situation by personal investiga- tion and inquiry. Huse v. United States, 222 U. S. 496. 56 L. Ed. 285, 32 S. Ct. 119, affirming 44 Ct. CI. 19. 585-17a. Offenses covered by Revised Statutes, § 3894.— United States r. Stever, 222 U. S. 167, 56 L. Ed. 145, 32 S. Ct. 51. flaking false and fraudulent representa- tions through the mails to prospective buj-ers of cattle, to promote a scheme to defraud by inducing them to come and in- pect the cattle, after which inferior cattle were to be substituted in the place of those inspected and sold, is not punisha- ble under Rev. St.. § 3894 (U. S. Comp. St. 1901, p. 2659), making criminal the use of the mails in furtherance of lotteries, or schemes of gain dependent upon chance, or "schemes devised for the purpose of ol)taining monej' or property under false pretenses," but such acts constitute the oflfense prohibited by § 5480 (U. S. Comp. St. 1901. p. 3696) of using the mails to carry on any scheme or artifice to defraud. United States v. Stever. 222 U. S. 167. 56 L. Ed. 145. 32 S. Ct. 51. 586-26a. Laying venue.— U. S. Comp. Stat. 1901, p. 3f)y.i. 586-26b. Rrown i. Elliott. 225 U. S. 392, 56 L. Ed. 1136,32 S. Ct. 812. See post. VENUE. 99: 586-587 POWERS. Vol. IX. place where an overt act was committed. ^^'^ Where the indictment alleges that the conspiracy was designed to be and was in fact continuous, it continues, so far as the statute of limitations is concerned, so long as any overt acts are done by any of the conspirators in furtherance of the conspiracy.^^*^ XV. Rulings of PostofRce Department Determining to Whom Mail Shall Be Delivered. The courts will not interfere with a ruling of the postofifice department de- termining to whom mail, addressed in a certain way, shall be delivered, where such ruling is not palpably erroneous. ^''^ POSTMASTER GENERAL.— See ante, Postal Laws, p. 996. POST ROADS. — See ante, Postal Laws, p. 996. And see ante, Lntkrstate AND Foreign Commerce, p. 689; post, Telegraphs and Telephones. POWDER. — Powder is an explosive.^ POWER OF ATTORNEY.— See post, Powers. As to revocation of power of attorney to accept service of process, see ante. Insurance, p. 674 ; post, Summons and Process. POWERS. m. Revocation, 998. CROSS REFERENCES. See the title Powers, vol. 9, p. 588, and references there given. In addition, see ante, Insurance, p. 674; post. Summons and Process. As to revocation of power of attorney to accept service of process in suit against foreign insurance company, see ante, Insurance, p. 674 ; post, Sum- -MONs AND Process. III. Revocation. With certain exceptions, a princi]ial named in a power of attorney may re- 586-26C. Indictment need not state ex- with no further designation of the party act place of formation of conspiracy. — for whom it is intended, be delivered to Brown v. Elliott, 225 U. vS. 392, .50 L. Ed. the "Central Trust Company of Illinois," ]136, 32 S. Ct. 812. See, also, ante, IN- an Illinois banking corporation, and not DICTMENTS, INFORMATIONS, PRE- to a foreign corporation, engaged in the SENTMENTS AND COMPLAINTS, p. mining, promoting, real estate, and trust 652. business, in the city of Chicago, under the 586-26d. Statute of limitations. — Brown name of the "Central Trust Company." V. Elliott, 225 U. S. 392, 56 L. Ed. 1136, 32 Central Trust Co. v. Central Trust Co., S. Ct. 812. 2] 6 U. S. 251, 54 L. Ed. 4G9, 30 S. Ct. 341. 587-27a. Rulings with which the courts 587-a. "Powder is an explosive, danger- will not interfere. — The ruling of the post- ous to handle, the degree of danger cor- office department that mail addressed to responding to its quantity. It is subject, the "National Life Insurance Company" therefore, to a measure of regulation at Chicago, 111., without street or office ad- from which harmless articles of com- dress, be delivered to the corporation of merce may be exempt." Williams v. that name, and not to a company subse- Walsh, 222 U. S. 415, 424, 56 L. Ed. 253, quently incorporated, with a similar name, 32 S. Ct. 137. See ante, INTERSTATE will not be interfered with because, judg- AND FOREIGN COMMERCE, p. 689. ing from past experience, the very great Blasting powder is an explosive and majority of the mail so addressed is. in one of power. It is included in the words fact, intended for the latter company. Na- "or other explosives" as used in a condi- tional Life Ins. Co. v. National Life Ins. tion of a fire insurance policy, prohibiting Co., 209 U. S. 317, 52 L. Ed. 808, 28 S. Ct. the keeping, use or allowance of certain 541. designated explosives and inllammable The courts will not interfere, where no substances, "or other explosives." Pen- palpable error appears, with the ruling of man z'. St. Paul Fire, etc., Ins. Co., 216 U. the postoffice department, that mail ad- S. 311. 5 L. Ed. 493, 30 S. Ct. 312. See dressed, "Central Trust Co., Chicago, 111.." ante, INSURANCE, p. 674. 998 Vol. IX. PRESCRIPTION. 593-611 voke such an interest at his mere pleasure, though the agency may be expressly claimed to be irrevocable; but when the authority or power is coupled with an interest, or when it is a part of the security, the power is irrevocable, whether so expressed or not.^^^ PRACTICE CONFORMITY ACT.— See ante, Courts, p. 398. And see the particular titles. PRACTICE OF LAW.— See ante, Attorney and Client, p. 158: post, Treatiks. PRACTICING MEDICINE.— See note la. PRE-EMPTION.— See post, Pubuc Lands. PREFERENCE. — See ante. Fraudulent and Voluntary Conveyances p. 600. PREFERENTIAL TRANSFER.— See ante. Fraudulent and \^oluntary CoXVEVANCES. p. 600. PREMATURE SUITS.— See the title Premature Suits, vol. 9, p. 610, and references there given. As to a premature action upon the redelivery bond in replevin, see post, Replevin. PRESCRIPTION. CROSS REFERENCES. See the title Prescription, vol. 9, p. 611, and references there given. Under Spanish and Civil Law.— See note 4a. 593-19a. Strong- c'. Buffalo Land, etc., Co., 203 U. S. 582, 51 L. Ed. 327, 27 S. Ct. 780, affirming- 91 Minn. 84, 97 N. W. 575. See, also, Hunter v. Mutual Reserve Life Ins. Co., 218 U. S. 573, 54 L. Ed. 1155, 31 S. Ct. 127. 609-la. Practicing medicine. — Section 13 of the Texas Act establishing- a board of n-iedical examiners, declares that ''any person shall be regarded as practicing medicine within the meaning" or this act * * * (2) Or -who shall treat or ofifer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to ef- fect cures thereof and charge therefor, directly or indirectlj^ money or other compensation." The court said: "We are far from agreeing -vN'ith the plaintifif in error that the definition of practicing medicine in § 13 is arbitrary or irrational, but it -w'ould be immaterial if it were, as its only object is to explain who fall within purview of the act." Collins v. Texas, 223 U. S. 288, 295, 56 L. Ed. 439, 32 S. Ct. 286. See ante. PHYSICLA.XS AND SURGEONS, p. 949. 611-4a. Under Spanish and civil law. — Book 12. title 4. law 14, of the Recopila- cion de Leyes de las Indias, confers title on those who hold by just a prescription. Prescription is also mentioned in the royal Cedula of Oct. 15, 1753: "Where such pos- sessors shall not be able to produce title deeds, it shall be sufficient if 'they shall show that ancient possession, as a valid title by prescription." It may be that this means possession from before 1700, but at all events the principle is admitted. If prescription, even against crown lands, was recognized by the laws in Spain, there is no reason for hesitating to admit that it was recognized in the Philippines in re- gard to lands over which Spain had only a paper sovereignty. Carino v. Insular Government, 212 U. S. 449, 460, 53 L. Ed. 594, 29 S. Ct. 334. The rule of prescription of civil law con- fers ownership on those who establish that they have possessed the lands in question for the requisite time under just title and in good faith. The phrase "justo titulo" means a title such as to transfer the propert^^ or, as it is defined in the Civil Code, § 1952, "that which le- gally suffices to transfer the ownership on property rights, the prescription of which is in question." This does not mean that the titulo must have been ef- fective in the particular case, for then prescription would be unnecessary. For instance if a private person in possession ot crown lands, seeming to be the owner, executes a formall}^ valid conveyance un- der which the grantee held, supposing his title good, possession for the requisite period, that creates an indisputal)le right: l)ut if the public facts known by the grantee showed that the conveyance to him was valid, it would not constitute a stalling point for the running of time :ind the grantee's actual belief would not help 999 623-634 PRESUMPTIOXS AXD BURDEX OF PROOF. \'ol. IX. PRESENTMENT. — See ante, Ixdictments, Informations, Presentments AND Complaints, p. 632. PRESIDENT OF THE UNITED STATES.— See the title President oe IHE United States, vol. 9, p. 614, and references there given. PRESUMPTIO JURIS.— See post. Presumptions and Burden of Proof. PRESUMPTION OF INNOCENCE.— See post, Presumptions and Burden of Proof. PRESUMPTIONS AND BURDEN OF PROOF. I. Presumptions, 1000. F. Presumptions in Criminal Cases, 1000. 2. Presumption of Innocence, 1000. O. Presumption That Things Are Rightly Done, 1000. 2. Presumption That Persons Do Their Dutv. 1000. b. Public Officers, 1000. II. Burden of Proof, 1001. B^. Where Party Sets Up Exception in Contract or Statutes. 1001. E. Shifting of the Burden. 1001. 1. In Civil Cases. 1001. CROSS REFERENCES. See the title Presumptions and Burden of Proof, vol. 9, p. 618. and refer- ences there given. I. Presumptions. F. Presumptions in Criminal Cases — 2. Presumption of Innocence. — Presumptio Juris. — See note 13. 0. Presumption That Things Are Rightly Done — 2. Presumption That Persons Do Their Duty — b. Public Officers. — See note 51. his case. Indeed, he would not be' re- garded as holding in good faith, within the requirement of the rule, because a man is not allowed to take advantage of his ignorance of the law. Tiglao z'. In- sular Government, 215 U. S. 410, 54 L. Ed. 257, 30 S. Ct. 129. A wholly unauthorized grant of public land in the Philippine Islands by subor- dinate Spanish officials, showing its in- validity on its face, can not serve as the basis of a prescriptive title under the Spanish royal decree of June 25, 1880, under which a prescriptive right can be founded on possession for ten years un- der just title and in good faith. Tiglao f. Insular Government, 215 U. S. 410, 54 L. Ed. 257, 30 S. Ct. 129. A person who had occupied land in the province of Benguet for more than fifty years before the treaty of Paris, April 11, 1899, is entitled to possession therefor and should not be deprived of his property through a refined interpreta- tion of almost forgotten Spanish law. Carino v. Insular Government, 2J2 U. S. 449, 460, 53 L. Ed. 594, 29 S. Ct. 334. 623-13. Presumptio juris. — Holt v. United States. 218 U. S. 245, 253, 54 L. Ed. 1021, 31 S. Ct. 2. Beyond a reasonable doubt. — The jury is correctly instructed as to the presump- tion of innocence where the court states that a criminal prosecution begins with the presumption that the defendant, al- though accused, is innocent, and that to overcome this legal presumption the evi- dence must be clear and convincing, and sufficiently strong to convince the jury beyond a reasonable doubt that the de- fendant is guilty. Holt f. United States, 218 U. S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, affirming judgment in United States v. Holt (C. C. 1909), 168 F. 141. 634-51. Acts presupposing existence of other acts. — It will be presumed in the absence of any showing to the contrary, that the governor general of the Philip- pines reported a grant of tide lands to his superiors at Madrid, as required by royal decree. Costas v. Insular Government, 221 U. S. 623, 55 L. Ed. 884, 31 S. Ct. 664. See post, PUBLIC OFFICERS. A presumption, though not a conclusive one, that there has been a compliance with the condition precedent to the issu- ance of county bonds in payment of a sub- scription to the capital stock of a rail- way company, that the county should first be exonerated froin a prior subscription 1000 Vol. IX. PRINCIPAL AXD AGEXT. 636-648 II. Burden of Proof. B^. Where Party Sets Up Exception in Contract or Statutes.— When a proviso embodying a condition subsequent carves an exception out of the body of a statute or contract, those who set up such exception must prove it.^^* E. Shifting of the Burden— 1. Ix Civil Cases.— See note 62. PRIMA FACIE.— See ante. Evidence, p. 558. PRIMARY EVIDENCE.— See ante, Best and Secondary Evidence, p 202 PRIMARY LIMITS.— See post, Public Lands. PRINCIPAL AND AGENT. V. Manner of Conferring Authority, 1001. B. Authority Conferred by Implication. 1001. IX. Rights, Duties and Liabilities, 1002. A. As between Principal and Agent, 1002. 1. Duties and Liabilities of Agent to Principal. 1002. c. Good Faith in Dealing with Principal, 1002. (1) In General. 1002. e. Accounting, 1002. f. Action by Principal against Agent, 1002. B. As between Principal or Agent and Third Persons. 1002. 6. Notice to Agent as Notice to Principal, 1002. a. General Rule. 1002. CROSS REFERENCES. See the title Principal and Agent, vol. 9. p. 640. and references there given. In addition, see ante. PoW'Ers. p. 998. As to questions of agencv relating to officers of the public, see post. Public Officers. V. Manner of Conferring Authority. B. Authority Conferred by Implication. — The relation of a government acting in its political capacity to a person who furnishes the information upon which it acts can not, from the very nature of things, be that of principal and agent.-*'* to the stock of another railroad companj% Panama, over which the Costa Rican gov- arises from the mere fact of subscription ernment exercised de facto sovereignty, and issuance by the officer charged with was injured through the acts of the Costa the duty of issuing the bonds upon the Rican officers and soldiers acting pursu- performance to the condition precedent. ant to an alleged conspiracy between the Judgment (C. C. A. 1907). Quinlan f. officers and defendant, plaintiff's com- Green County, 157 F. 33, modified. Green petitor in business, defendant could not County V. Quinlan, 211 U. S. 582, 53 L. be charged with the acts of such Costa Ed. 335. 29 S. Ct. 162. Rican officials on the theory that the 636-59a. Burden of proof. — Javierre v. Costa Rican government merely acted as Central Altagracia, 217 U. S. 502. 507, 5+ defendant's agent in carrying out its de- L. Ed. 859. 30 S. Ct. 598. sires: there being nothing to show that 637-62. Setting up facts amounting to the Costa Rican government was not act- indirect negative. — An allegation of fact ing on its own responsibility and in its that is material only as an indirect nega- governmental capacity. Jud,gment (C. C. tive of something to be proved by the 1908). 160 F. 184, affirmed. (1908) Amori- other party does not shift the burden of can Banana Co. v. United Fruit Co.. 166 proof. Javierre v. Central Altagracia, 217 F. 261, 92 C. C. .\. 325. judgment affirmed U. vS. 502, 508, 54 L. Ed. 859, 30 S. Ct. 598. American Banana Co. v. United Fruit Co.. 648-26a. Authority conferred by indica- 213 U. S. 347. 53 L. Ed. 826, 29 S. Ct. 511. ticn. — Where plaintiff's plantation in 1001 667-692 PRIXCIPAL AND AGEXT. Vol. IX. IX. Rights, Duties and Liabilities. A. As between Principal and Agent — 1. Duties and Liabilities of Agent to Principal — c. Good Faith in Dealing zvith Principal — (1) In Gen- eral. — See note 32. An agent who makes a secret profit in the execution of his agency may be compelled to disgorge.^'*^ And when an agent agrees to purchase property for a buyer at not exceeding a specified sum, he can not avail himself of an unexpired option antedating the employment to purchase the property at a less price himself and make the difiference.-^^'' e. Accounting. — An army engineer in charge of a harbor improvement, who secretly receives from the contractors a proportion of the abnormal profits realized by them in the execution of their contracts, may be required to account in equity to the United States for the share so received, without any showing of any specific abuse of discretion on his part, of any actual loss to the govern- ment by fraud or otherwise. ^^'^ f. Action by Principal against Agent. — An agent who makes a secret profit m the execution of his agency may be compelled to disgorge and required to do so in an action upon an implied promise.*""' B. As between Principal or Agent and Third Persons — 6. Notice to Agent as Notice to Principal — a. General Rule. — See note 67. 667-32. Good faith in dealing with principal — In general. — United States :•. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515; Sandoval v. Randolph, 222 U. S. 161, 56 L. Ed. 142, 32 S. Ct. 48. See post, "Accounting." IX, A, 1, 2. 668-34a. Accounting for profits. — San- doval z: Randolph. 222 U. S. 161. 56 L. Ed. 142, 32 S. Ct. 48. 668-34b. Purchasing for himself. — Sandoval v. Randolph, 222 U. S. 161, 56 L. Ed. 142, 32 S. Ct. 48. The contention of one sued in assumpsit as the agent for the buyer of a mine, upon an implied promise to refund a secret profit made in the execution of the agenc}', that he was in fact the owner of the mine at the time he agreed to act for the buyer in purchasing it, is not estab- lished by a contract antedating the agency, by which the owners agreed to sell the mine to the defendant in con- sideration, with right of redemption within six months, of a specified sum, with the further agreement that they would not exercise the right of redemption if he should pay to them the further considera- tion of a specified sum, since such con- tract is nothing more than an option. San- doval r. Randolph, 222 U. S. 161. 56 L. Ed. 142, 32 S. Ct. 48, affirming judgment (1908), 95 P. 119, 11 Ariz. 871. 672-58a. Accounting. — United States v. Carter, 217 U. S. 2S6, 51 L. Ed. 769. 30 S. Ct. 515. See post, PUBLIC OFFICERS; UNITED STATES. In United States v. Carter, 217 U. S. 286, 305, 54 L- Ed. 769, 30 S. Ct. 515, Mr. Justice Lnrton in delivering the opinion of the court said: "If it be once assumed that the defendant. Carter, did secretly receive from Greene and Gaynor a pro- portion of the profits gained by them in the execution of the contracts in ques- tion, the right of the United States in equity to a decree against him for the sliare so received is made out. It is im- material if that appears Vwliether the com- plainant was able to show any specific abuse of discretion, or whether it was able to show that it had suffered any ac- tual loss by fraud or otherwise. It is not enougli for out- occupying a confidential relation to another, Avho is shov/n to have secretly received a benefit from the op- posite party, to say. 'You can not show any fraud, or you can not show that you have sustained any loss by my conduct.' Such an agent has the power to conceal his fraud and hide the injury done his principal. It would be a dangerous prec- edent to lay down as law that unless some affirmative fraud or loss can be shown, the agent may hold on to any secret benefit he may be able to make out of his agency. The larger interests of public justice will not tolerate, under any circumstances, that a public official shall retain any profit or advantage which he may realize through the acquirement of an interest in conflict with his fidelity as an agent. If he takes any gift, gratuitj' or benefit in violation of his duty, or acqvures any interest adverse to his prin- cipal without a full disclosure, it is a be- trayal of his trust and a breach of confi- dence, and he must account to his prin- cipal for all lie lias received." 673-60a. Action in assumpsit. — Sandoval f. Randolph, 222 U. S. 161, 56 L. Ed. 142, 32 S. Ct. 48. 692-67. Notice to agent as notice to principal — In general.- — Knowledge of the local attorney and president of the local board of directors of a foreign building and loan association in regard to a mat- 1002 Vol. IX. PRLXCIPAL AXD SURETY. 718 PRINCIPAL AND SURETY. II. The Contract of Suretyship, 1003. E. Construction, 1003. 1. General Rule, 1003. F. Liability on Contract, 1004. 1. Measure of Surety's Liability, 1004. b. Liability of Surety on Bond, 1004. III. Discharge or Release of Surety, 1004. C. Alteration of Contract, 1004. 1. General Rule, 1004. 6. Extension of Time to Principal, 1004. D. Acts or Omissions of Creditor or Obligee, 1004. 2. Extension of Time to Principal, 1004. b. Limitations or ^Modifications of Rule. 1004. (2) Necessity for Consideration, 1004. (3) Must Be without Surety's Consent, 1004. (5) Agreement ]Must Be for Definite Delay, 1004. 4. Failure to Give Notice to Surety of Default, 1004. 5. Neglect to Proceed against Principal, 1004. F. Consent by Surety to Transactions between Creditor and Principal, 1004. IV. Rights and Remedies of Sureties, 1004. A. As against Principal, 1004. 2. Right to Reimbursement and Exoneration, 1004. 3. Subrogation to Rights of Creditor, 1005. V. Actions or Suits against Principal and Surety, 1005. D. Parties, 1005. H. Judgment or Decree, 1005. 2. Against Surety, 1005. CROSS REFERENCES. See the title Principal axd Surety, vol. 9, p. 713, and references there given. As to discharge of surety in redelivery bond, see post, ReplEvix. II. The Contract of Suretyship. E. Construction — 1. General Rule. — Instrument Construed as a Whole. — Where the contract of suretyship makes another instrument a part thereof, the former must be construed in connection with it.^^^ ter coming within the sphere of their statements, in writing, made by the as- duty, and acquired while acting with refer- sistant cashier of the bank as to the du- ence thereto, and before sending to the ties and accounts of the president, and company at its home office the report such statements are, by the terms of the which it was their duty to make, must be bond, made a part thereof, the bond and imputed to the company. Decree (1903), statements together form the contract, 22 App. D. C. 368, affirmed. Armstrong z: and on the construction as a whole depend Ashley, 204 U. S. 272, 51 L. Ed. 482, 27 the rights and liabilities of the parties. S. Ct. 270. Judgment, Willoughby v. Fidelity & De- 718-18a. Instrument construed as a posit Co. of Maryland (1906), 85 P. 713, 16 whole. — In an action against a surety com- Okl. 546, 7 L. R. A. (X. S.) 548, affirmed, pany to recover on the bond of a de- Cherry -■. Fidelity, etc., Co., 205 U. S. 537, faulting bank president, where the bond 51 L. Ed. 920, 27 S. Ct. 790. See ante, IN- is issued by the surety company and ac- TERPRETATIOX AXD CONSTRUC- cepted by the bank on the faith of certain TIOX, p. 688. 1003 722-725 PRINCIPAL AND SURETY. Vol. IX. F. Liability on Contract — 1. Measure of Surety's Liability — b. Lia- bility of Surety on Bond. — As to liability of surety on working contractor's bond, see post, Working Contracts. III. Discharge or Release of Surety. C. Alteration of Contract — 1. General Rule. — See note 39. 6. Extension of Time to Principal. — See post, "Extension of Time tO' Principal," III, D, 2. D. Acts or Omissions of Creditor or Obligee — 2. Extension of Time TO Principal— b. Limitations or Modifications of Rule — (2) Necessity for Consideration. — See note 50. (3) Must Be zvithout Sitrety's Consent. — See note 51. (5) Agreement Must Be for Definite Delay. — See note 55. 4. Failure to Give Notice to Surety of Default. — The sureties on a bond conditioned on the payment by the principals of the purchase price of goods four months after sale, which contained no provision as to notice, are not discharged by failure to give notice that their principals had not made payment as required. ^*^^ 5. Neglect to Proceed against Principal. — ^Sureties are not discharged by the mere delay in enforcing the obligation of the principals.'^''''' F. Consent by Surety to Transactions between Creditor and Princi- pal. — AX'here a bond is conditio-ned on the i)a}-ment by the principals of the purchase price of goods four months after sale, in the absence of any agree- ment with the surety to the contrary, the law imposes no restrictions on ar- rangements between the principals and the obligees that may aiTect the terms of their continuing business/'''''' IV. Rights and Remedies of Sureties. A. As against Principal — 2. Right to Reimbursement and Exonera- tion. — ;See note 62. 722-39. Changes in plans agreed to in it might be necessary or very convenient writing before work contemplated by such to extend the time, and expressly pro- change begun. — Provisions in a contract vrJed for a per diem deduction from the for a public work requiring that changes contract price for a delay beyond the time in the plans or specifications, deemed de- prescribed for the completion of the sirable by the government, be agreed to work. United States v. McMullen, 322 U. in writing by the parties to the contract S. 460, 56 L. Ed. 269, 32 S. Ct. 128. before the work contemplated by such 725-55. No definite time. — Clark v. changes is begun, do not require the as- Gerstley, 26 App. D. C. 205, judgment af- sent of the sureties in order not to work firmed in Claric v. Gerstley, 204 U. S. 504, their discharge. United States v. Mc- 51 L. Ed. 589, 27 S. Ct. 337. }^Iullen, 222 U. S. 460, 56 L. Ed. 269, 32 725-56a. Failure to give notice to surety S. Ct. 128, reversing judgment (1909) Mc- of default.— Clark v. Gerstley, 26 App. D. Mullen V. United States, 167 F. 460, 93 C. C. 205, judgment affirmed in Clark f. C. A. 96. Gerstley, 204 U. S. 504. 51 L. Ed. 589, 37 724-50. Agreements must have consid- S. Ct. 337. eraticn to support it. — Clark v. Gerstley, 725-56b. Neglect to proceed against 26 App. D. C. 205. Judgment affirmed in principals. — Clark v. Gerstley, 26 App. D. Clark V. Gerstley, 204 U. S. 504, 51 L. Ed. C. 205, judgment affirmed in Clark v. 589, 27 S. Ct. 337. Gerstley, 204 U. S. 504, 51 L. Ed. 589, 27 724-51. Where contract contemplates S. Ct. 337. extension of time. — The sureties on th'^ 725-59a. Consent by surety to tran&ac- l)ond of public contractor, conditioned tions between creditor and principal. — upon the faithful performance of a con- McGuire v. Gersiley, 26 App. D. C. 193, tract for dredging a channel, wet>e not judgment affirmed in McGuire v. Gerstley, discharged by an extension of the time 204 U. S. 489, 51 L. Ed. 581. fixed for performance, accorded by the 725-62. Right of surety on appeal bond government to the contractor, where the — Taking security from judgment cred- contract definitely contemplated, what the itor. — The surety on an appeal bond may nature of the work made manifest, that recover from its principals the amount of 1004 \'ol. IX. PRn\ATE JVHARJ'ES. 727-733 3. Subrogation to Rights of Crewtor. — See post, Subrogation. V. Actions or Suits against Principal and Surety. D. Parties?. — In a suit brought by the surety to set aside a judgment against him and the principal, the principal is a necessary party plaintiit."-'"' H. Judgment or Decree — 2. Against Surety. — Attacking Judgment. — So long as a judgment against the principal stands, a judgment against the surety can not be impeached. '^*^* PRIORITIES. — See references under Priorities, vol. 9, p. 728. PRISONS AND PRISONERS.— See the title Prisons and Prisoners, vol. 9, p. 729, and references there given. PRIVATE CORPORATIONS.— See ante. Banks and Banking, p. 184; Corporations. ]). 381. PRIVATE ENTRIES.— See post, Public Lands. PRIVATE LAND CLAIMS.— See post. Public Lands. PRIVATE PROPERTY.— See note L PRIVATE WAYS. CROSS REFERENCES. See the title Private Ways. vol. 9, p. 733). and references there given. In addition, see ante. Easements, p. 534. General Consideration. — A private right of way is an easement and is land, and may be acquired by the United States as an incident to the fee upon payment of compensation. The value of the easement can not be ascertained without reference to the dominant estate to which it is attached. The same reasoning that allows a recovery for the taking of land by permanent occupa- tion, allows it for right of way taken in the same manner.^'' PRIVATE WHARVES.— See post. Wharfs and Wharfingers. the judgment which it paid after an affirm- execution had not then issued on the ance on the appeal to a territorial su- judgment, and the governor may not have preme court, although, when makin'g such had the power to carry out his threat, payment, it took from the judgment cred- United States Fidelit}^ etc., Co. x'. San- itor a bond with collateral security con- doval. 22:^ U. S. 227, 56 L. Ed. 415, 32 S. ditioned for the reimbursement of the Ct. 298. money so paid in case the judgment 727-75a. Principal necessary party. — should be reversed on a proposed further Steele :■. Culver. 211 L". S. 26, 53 L,. Ed. appeal to the federal supreme court, since 74, 29 S. Ct. 9. the surety, by so acting, was not speculat- 728-86a. Attacking judgment. — Steele z'. ing out of its principals, but was bene- Culver. 211 U. S. 2(j. 53 L. Ed. 74, 29 S. fiting them by acquiring security to which Ct. 9. they could be subrogated in case of a re- 733-1. Tribal property. — "There is a versal of the jud.gment. United States broad distinction between tribal property Fidelity, etc., Co. v. Sandoval, 223 U. S. and private property, and between the 227, 56 L. Ed. 415, 32 S. Ct. 298. power to abrogate a statute and the au- Payment held not voluntary or negli- thority to destroy rights acquired under gent. — The payment of the judgment in such law." Choate z'. Trapp. 224 U. S. good faith by the surety on an appeal 665, 671, 56 L. Ed. 941, 32 S. Ct. 565. See bond, after an affirmance on the appeal to ante, COXSTITUTIOXAL LAW, p. 264; a territorial supreme court, and after re- DUE PROCESS OF LAW, p. 475; IX- ceiving notice from the governor that un- DIAXS. p. 641. less the judgment were paid the surety 733-4a. United States t'. \\'elch. 217 U. would forfeit its right to do business in S. 333, 54 L. Ed. 787, 30 S. Ct. 527. fol- the territory, can not be said to have lowed in United States v. Sewell, 217 U. been made voluntarily or negligently, so S. 601, 54 L. Ed. 897, 30 S. Ct. 091, and as to defeat the surety's right to reim- United States 7'. Grizzard, 219 U. S. 180, bursement from its principals, altliough 55 L. T^d. 105, 31 S. Ct. 162. 736-742 PRIJ'ILEGED COMMUXICATIONS. Vol. IX. PRIVILEGE. II. Privilege of Persons in Public Service, 1006. B. Privilege of Members of Legislative Bodies, 1006. 1. From Arrest and Service of Process, 1006. a. Origin and History of Privilege in England, 1006. b. Privilege of Members of National Congress, 1006. CROSS REFERENCES. See the title Privilege, vol. 9, p. 734, and references there given. In addition, see ante. Appeal and Error, p. 34 ; Coxstitutioxal Law, p. 264; post, Witnesses. II. Privilege of Persons in Public Service. B. Privilege of Members of Legislative Bodies — 1. From Arrest axd Service of Process — a. Origin and History of Privilege in England. — See note 11. b. Privilege of Members- of National Congress. — All criminal offenses are comprehended by the terms "treason, felony, and breach of the peace," as used in Const. V. S. art. 1, § 6, cl. 1, excepting these cases from the operation of the privilege from arrest therein conferred vipon senators and representatives during their attendance at the sessions of their respective houses, and in going to and returnins: from the same.^"^ PRIVILEGED COMMUNICATIONS. I. Confidential Communications, 1006. F. Statement of Principle and Reasons Therefor, 1006. CROSS REFERENCES. See the title Privileged Communications, vol. 9, p. 740, and references there given. I. Confidential Communications. F. Statement of Principle and Reasons Therefor. — It may be stated, as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. On this principle, suits can not be maintained which would require a disclosure of the confidences of the con- fessional, or those between husband and wife, or of communications by a client to his counsel for professional advice, or of a patient to his physician for a similar purpose. Much greater reason exists for the application of the prin- ciple to cases of contract for secret services with the government, as the exist- ence of a contract of that kind is itself a fact not to be disclosed.^^ 736-11. Origin of privilege in England. U. S. 42o, 52 L. Ed. 278. 28 S. Ct. 163. — Williamson i\ United States, 207 U. S. 742-8a. Statement of principle and rea- 42.5, 52 L. Ed. 278. 28 S. Ct. 163. son therefor.— Totten v. United States, 93 736-17a. Privilege of members of con- U. S. 105, 107, 23 L. Ed. 605. gress. — Williamson z\ United States, 207 1006 Vol. IX. PROBATE OF WILLS. 733-758 PRIVILEGES AND IMMUNITIES.— See ante, Citizenship, p. 235; Civil. Rights, p. 236; Coxstitutioxal Law, p. 264; Impairmext of Obligatiox OF COXTRACTS, p. 624. PRIVY— PRIVITY.— See note 7. PRIZE. IV. Capture and Condemnation or Restoration, 1007. F. \'essels and Property Subject to Capture and Condemnation. 1007. 2. Enemies" Vessels and Property. 1007. h. Exemptions from Capture and Condemnation, 1007. (3) Articles of Capitulation. 1007. (4) Proclamation of President of United States or of Com- manding Officer, 1007. CROSS REFERENCES. See the title Prize, vol. 9, p. 744, and references there given. In addition, see, as to captures on land, post. War. As to seizures for breach of the revenue laws, see post, Rex'exue Laws. IV. Capture and Condemnation or Restoration. F. Vessels and Proj)erty Subject to Capture and Condemnation — 2. Enemies' A'essels axd Property — h. Exemptions from Capture and Con- demnation — (3) Articles of Capitulation. — The capitulation of Santiago and the cessation of active military operations in the Santiago district did not change the character of a Spanish merchant vessel lying in the harbor as en- emies property, nor exempt it from liability to capture by the military author- ities for military purposes." ^^ (4) Proclamation of President of United States or of Commanding Officer^ — See note 77. . PROBABLE CAUSE. — See ante, Malicious Prosecutiox. p. 837. PROBATE. — See ante. Executors axd Admixistrators, p. 564. PROBATE COURT.— See ante, Courts, p. 398. PROBATE OF WILLS.— See post. Wills. 733-7. Estoppel of judgment. — See owner of the vessel of "privity or knowl- post, RES ADJUDICATA. edge," within the meaning of Revised In Bigelow v. Old Dominion Copper Statutes. § 4283, according to shipowners Min., etc., Co.. 225 U. S. Ill, 128, 56 L. a limited exemption from liability. La Ed. 1009, 32 S. Ct. 641, the court said: Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 "What is. privity? As used when dealing S. Ct. 664. See ante, COLLISION, p. with the estoppel of a judgment, privity 243: post, SHIPS AXD _SH IPPIXG. denotes mutual or successive relationship 758-76a. Effect of capitulation and ces- to the same right of property. Litchfield sation of active military operations. — V. Goodnow, 123 U. S. 549, 31 L. Ed. 199, Hcrrera r. United States, 222 U. S. 558. 8 S Ct. 203. The ground upon which 56 L. Ed. 316. 32 S. Ct. 179; Diaz z: United privies are bound by a judgment. States, 222 U. S. 574, 56 L. Ed. 321, 32 S. says Prof. Greenleaf, in his work upon Ct. 184. Evidence, 13th ed., vol. 1. § 523. 'is, 758-77. The president's proclamation of that they are identified with him in inter- July 13, 1898, with reference to the rights est; and wherever this identity is found of private property, did not change the to exist, all are alike concluded. Hence, character of a Spanish merchant vessel all privies, whether in estate, in blood, or lying in the harbor of Santiago, as enemy's in law, are estopped from litigating that property, nor exempt it from liability to which is conclusive upon him with whom capture by the military authorities for they are in privity.' " military purposes. Herrera v. United Privity or knov^ledge.— Mere negli- States. 222 U. S. 558, 56 L. Ed. 316. 32 S. gence. of itself, does not necessarily es- Ct. 179; Diaz f. United States. 222 U. S. Tablish the existence on the part of the 574, 56 L. Ed. 321, 32 §. Ct. 184. 1007 786-789 PRODUCTION OF DOCUMENTS. Vol. IX. PROBATE PROCEEDINGS. — See ante, Executors and Administrators, p. 564. PROCEEDINGS IN REM AND IN PERSONAM.— See note 1. PROCESS.— See ante. Apparatus, p. Z2>\ Machine, p. 837; Patents, p. 936. PROCESS OF LAW.— See note 3. PRO CONFESSO. — See ante; Judgments and Decrees, p. 807. PRODUCTION OF DOCUMENTS. I. Definition and Nature of Subpoena Duces Tecum, 1008. II. Power to Compel Production, 1008. xA.. Power of Federal Courts, 1008. 1. In General, 1008. IV. Who May Be Compelled to Produce, 1009. D. AA'itnesses, 1009. VI. Effect of Failure to Produce Documents after Notice, 1009. Cy.. Contempt of Court. 1009. D. Presumptions in Case of Failure to Produce, 1009. VIII. Mode of Compelling Production, 1009. CROSS REFERENCES. See the title Production of Documents, vol. 9, p. 788, and references there given. In addition, see ante. Constitutional Lav^, p. 264 ; Discovery, p. 465 ; Due Process of Law, p. 475; Searches and Seizures. I. Definition and Nature of Subpoena Duces Tecum. A subpoena duces tecum is not invalid because it contains no ad testificandum clause, but simply directs a corporation, wdiich could not give oral testimony, to produce books.''^ And even though the subpoena contains the usual ad tes- tificandum clause, it is not necessary for the party requiring the production to have the person producing the documents sworn as a witness.'^'' II. Power to Compel Production. A. Power of Federal Courts — 1. In General. — See notes 4. 5. The pur- 786-1. Proceedings for registration. — ■ 28 L. Ed. 232." Twining i'. New Jersey, In Carino v. Insular Government. 212 U. 211 U. S. 78, 101, 53 L. Ed. 97, 29 S. Ct. 14. S. 449, 456, 53 L. Ed. 594, 29 S. Ct. 334, See ante. DUE PROCESS OF LAW. p. the court said: "The proceeding for reg- 475. istration is likened to bills in equity to 789-3a. Ad testificandum clause not es- quiet title, but it is different in principle. sential. — Wilson 7'. United States, 221 U. It is a proceeding in rem under a statute S. 3G!. 55 L. Ed. 777, 31 S. Ct. 538. of the type of the Torrens Act, such as 789-3b. Not necessary to have person was discussed in Tyler v. Court of Reg- producing documents sworn as a witness, istration, 175 Massachusetts 71. It is — -Wilson v. United States, 221 U. S. 361, nearer to law than to equity, and is an as- 55 L- Ed. 777, 31 S. Ct. 538. sertion of legal title; but we think it un- 789-4. Power of federal courts to com- necessary to nut it into either pioeon pel production of documents. — Carpenter hole." See post, QUIETING TITLE. v. Winn, 221 U. S. 533, 55 L. Ed. 842, 31 786-3. Process of law. — "'A process of S. Ct. 683, reversing 165 Fed. Rep. 636, law." said ]Mr. Justice Matthews, com- 91 C. C. A. 301. mcnting on this statement of Mr. Justice 789-5. Production can be required only Curtis, 'which is not otherwise forbidden, where chancery would grant discovery. — must be taken to be due process of law, Carpenter v. Winn, 221 U. S. 533, 55 L. if it can show the sanction of settled us- Ed. 842, 31 S. Ct. 683, reversing 165 Fed. age both in England and this country.' Rep. 636, 91 C. C. A. 301. Hurtado v. California, 110 U. S. 516, 528, 1008 Vol. IX. PRODUCTIOX OF DOCUMEXTS. 789-792 pose of § 15 of the Judiciary Act of 1789, which is substantially reproduced in § 724 of the Revised Statutes, is to provide a substitute for a bill of discovery in aid of a legal action.*^^ It may be invoked only when the document sought "contains evidence pertinent to the issue. "*^^'''' Under it a court of law is not empowered to compel one party to an action to produce books and papers in advance of trial for his adversary's examination and inspection.*^'^ An author- ity to issue subpoenas duces tecum was comprehended in the power conferred upon the federal courts by the Act of September 24, 1789, ^'^^ to issue all writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions, and agreeable to the practice and usages of law.i"" IV. Who May Be Compelled to Produce. D. Witnesses. — \\here a witness is required to produce documentary evi- dence, it is his duty to produce what is called for, if it is in his possession or control. ^'^^ VI. Effect of Failure to Produce Documents after Notice. C|. Contempt of Court. — The officer of a corporation having in his pos- session the books of the corporation, described in a subpoena duces tecum di- rected to the corporation, must produce the books or be held in contempt.^'^^ D. Presumptions in Case of Failure to Produce. — See post. Ships axd Shippixg. VIII. Mode of Compelling Production. Under the federal statutes a subpoena duces tecum may issue to compel a party to the action to produce books or writings. i'^'' 789-6a. Substitute for a bill of discov- ery. — Carpenter v. Winn, 221 U. S. 533, 55 L. Ed. 842. 31 S. Ct. 683, reversing 165 Fed. Rep. 636. 91 C. C. A. 301. See. also, ante, DISCOVERY, p. 465. 789-6b. Production required only when document contains evidence pertinent to issue. — Carpenter v. Winn, 221 U. S. 533, 55 L. Ed. 842, 31 S. Ct. 683, reversing 165 Fed. Rep. 636, 91 C. C. A. 301. 789-6C. A party can not be compelled to produce documents in advance of trial. — CarT^enter z\ \\'inn. 221 V. S. ."33. 55 L. Ed. 842, 31 S. Ct. 683, reversing 165 Fed. Rep. 636, 91 C. C. A. 301. 790-lOa. 1 Stat, at L. 81, chap. 20, § 14, U. S. Rev. Stat., § 713, U. S. Coinp. Slat. 1901. p. 580. 790-lOb. Authority to issue subpoenas duces tecum. — American Lithographic Co. z: Werckmeister, 221 U. S. 603, 55 L. Ed. 873, 31 S. Ct. 676, affirming 165 Fed. Rep. 426. 91 C. C. A. 376. 791-13a. Witnesses. — Consolidated Ren- dering Co. i: Vermont. 207 U. S. 541. 52 L. Ed. 327. 28 S. Ct. 178. 792-19a. Failure to produce books is contempt of court. — Wilson z-. United States 221 U. ?. 361. 55 L. Ed. 771, 31 S. Ct. 538. See ante. COXTE^IPT. p. 367. Objections not available to corporation fined for contempt. — The o1)jcction that incriminating books and papers were re- quired to be produced before a grand jury under Act Vt. Oct. 9. 1906. p. 79. Xo. 12 U S Enc— 04 1009 75, without extending immunity from criminal prosecution, is not available to a corporation winch has been fined for contempt in failing and absolutely refus- ing to produce any of the books and pa- pers called for, with some unimportant exceptions, and has thus prevented the court from inquiring into the validity of the objection. Judgment, In re Consoli- dated Rendering Co. (Vt. 1907), 66 A. 790, affirmed. Consolidated Rendering Co. z: Vermont, 207 U. S. 541. 52 U Ed. 327, 28 S. Ct. 178. A corporation which, with unimportant exceptions, refuses to produce certain books and papers before a grand jury, in compliance with the Vermont Act of Oc- tober 9, 1906, can not urge the sweeping character of the notice to produce to in- validate the order adjudging the corpora- tion guilty of a contempt. Consolidated Rendering Co. z: Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. 792-19b. Mode of compelling produc- tion. — Compulsory production of the hooks of a corporate defendant under a subpoena duces tecum served upon an of- ficer of the corporation in an action to recover the penalties prescribed by Rev. St., § 4965 (U. S. Comp. St. 1901. p. 3414) for printing and selling copies of a copy- righted painting, did not, after the change of the rule as to the incompetency of par- ties as witnesses, made by section 858 (page 659), violate any of the rights of the corporation under § 724 (page 583) 797-814 PRO PI ED AD. Vol. IX. PROFERT AND OYER. — See the title Profert and Oyer, vol. 9, p. and references there given. PROFITS.— See note 1. 793, PROHIBITION. III. When Writ Lies, 1010. A. Discretion of Court, 1010. C. Want or Excess of Jurisdiction. 1010. 1. In General, 1010. D. As Dependent upon Existence of Other Remedies, 1010. 1. Where Other Remedies Exist, 1010. a. In General, 1010. CROSS REFERENCES. See the title Prohibition, vol. 9, p. 798, and references there given. III. When Writ Lies. A. Discretion of Court. — See note 9. C. Want or Excess of Jurisdiction — 1. In General. — See note 16. D. As Dependent upon Existence of Other Remedies — 1. \\ here Other Remedies Exist — a. In General. — See note 22. PROMISSORY NOTES.— See ante, Bills, Notes and Checks, p. 204. PROPIEDAD.— See note 4a. providing- for the production on notice and motion ol a party's books and papers, since this section can not be regarded as providing an exclusive procedure. Ameri- can Lithographic Co. v. Werckmeister, 221 U. S. G03, 55 L. Ed. 873, 31 S. Ct. 676. Requisites of subpcena duces tecum. — As to the requisites and sufficiency of a subpoena duces tecum, see ante, "Defini- tion and Nature of Subpoena Duces Tecum," I. 797-1. Profits realized. — A contractor for the construction of a public w^ork realizes a profit "under said contract v^'ith the United States," within the mean- ing of an agreement to repay, in the con- tingency of such profit, certain moneys advanced, where the contractor, without himself doing the work, made a profit out of his arrangement with a subcon- tractor, although the work was actually constructed at a heavy loss. Sand Filtra- tion Corp. V. Cowardin, 213 U. S. 360, 53 L. Ed. 833, 29 S. Ct. 509. See post, UNITED STATES. 800-9. When discretionary. — Ex parte Oklahoma, 220 U. S. 191, 55 L. Ed. 431, 31 S. Ct. 426; Ex parte Oklahoma, No. 2, 220 U. S. 210, 55 L. Ed. 436, 31 S. Ct. 431.. When matter of right. — Ex parte Okla- homa, 220 U. S. 191, 55 L. Ed. 431, 31 S. Ct. 426; Ex parte Oklahoma, No. 2, 220 U. S. 210, 55 L. Ed. 436, 31 S. Ct. 431. 802-16. Want of excess of jurisdiction — In general. — Ex parte Oklahoma, 220 U. S. 191. 55 L. Ed. 431, 31 S. Ct. 426; Ex parte Oklahoma, No. 2, 220 U. S. 210, 55 L. Ed. 436, 31 S. Ct. 431. 804-22. Where other remedies exist in general. — Ex parte Oklahoma. 220 U. S. 191, 55 L. Ed. 431, 31 S. Ct. 426; Ex parte Oklahoma, No. 2, 220 U. S. 210, 55 L. Ed. 436, 31 S. Ct. 431. Prohibition against proceedings in tl:e federal circuit court to enjoin the prose- cution of search and seizure proceedings instituted in the state courts, under Sess. Laws Okl. 1907-08, c. 69, against intoxi- cating liquors shipped into the state, will not be granted by the federal supreme court, since adequate relief is afforded by the full right of review in the latter court and in the proper circuit court of appeals bv appeal of certiorari. Ex parte Okla- homa, 220 U. S. 191, 55 L. Ed. 431, 31 S. Ct. 426; Ex parte Oklahoma, No. 2, 220 U. S. 210. 55 L. Ed. 436, 31 S. Ct. 431. 814-4a. Propiedad. — "The eighth arti- cle of the Treaty of Paris declares that the cession of sovereigntj' 'can not in any respect impair the property rights which by law belong to the peaceful possession of property of all kinds,' etc., but that stipulation does not relate to the rights connected with trades and professions. The word propiedad used in the Spanish text is defined by Escriche as the right to enjoy and dispose freely of one's things in so far as the laws do not prohibit it. 4 Escriche 736. The same word appears in Article IX, providing that Spanish 1010 Vol. IX. PUBLIC IMPROVEMENTS. 815-817 PROPRIETOR. — As to proprietor as used in copyright law, see ante, Copy- right, p. Z77. See, also, ante, Assigns, p. 154. PROSECUTE— PROSECUTION.— See note 2 PROSTITUTION.— See note 3a. PROTEST. — See ante, Bills, Xotks and Checks, p. 204. PROVABLE CLAIMS AND DEBTS.— See ante. Bankruptcy, p. 168. PROVINCE OF COURT AND JURY.— See post, Questions of Law and Fact. PROVING A WILL.— See post. Wills. PROVISIONAL COURTS.— See ante, Military Law, p. 862. PROXIMATE CAUSE.— See ante. Negligence, p. 920. PUBLICATION.— See note 1. PUBLICATION OF LIBEL.— See ante. Libel and Slander, p. 824. PUBLIC DOCUMENTS. — As to term as used in provision against self- incrimination, see ante. Constitutional Law, p. 264. PUBLIC DOMAIN.— See post, Public Lands. PUBLIC HEALTH.— See ante. Health, p. 617. PUBLIC IMPROVEMENTS.— See post. Special Assessments. subjects nia}^ retain, whether they remain or remove from the territory, "all their rights of property, including the right to sell or dispose of such property or of its proceeds." Clearly the right to practice law was not referred to as 'property' there, and they are followed b}"- the words "and they shall also have the right to carry on their industry, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners.' " Bosque v. United States. 209 U. S. 91, 100, 52 L. Ed. 698, 28 S. Ct. 501. See post, TREATIES. 815-2. Prosecution of offenses under Hepburn Act. — The exception from the operation of the provision repealing con- flicting laws, which is made by the Hep- burn Act of June 29. 1906 (34 Stat, at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), § 10, in favor of causes pending in the federal courts, which ■'shall be prosecuted to conclusion in the manner heretofore provided by law," was addressed solely to the procedure to be followed in pending cases, and such sec- tion, therefore, does not supersede the general provision of U. S. Rev. Stat., § 13, saving existing forfeitures, penalties, or liabilities from repeal, so as to prevent future criminal prosecutions for offenses against the Elkins Act of Feb. 19, 1903 (32 Stat, at L. 847, chap. 708, U. S. Comp. Stat. Supp. 1907, p. 880), committed prior to the adoption of the later statute. Great Northern R. Co. v. United States, 208 U. S. 452. 52 L. Ed. 577, 28 S. Ct. 313. See ante. INTERSTATE AND FOR- EIGN C0M:^IERCE. p. 689. 815-3a. Prostitution is the act of per- mitting illicit intercourse for hire — an indiscriminate intercourse, or what is deemed puljlic prostitution. ( C. C. 1907) United States v. Bitty. 155 F. 938, judg- ment reversed in United States v. P>itTv. 208 U. S. 393, 52 L. Ed. 543, 28 S. Ct. 396, on another point. Any prostitution. — In the Act of Feb. 20, lyOi, prohibiting importation of alien women "for the purpose of prostitution, or for any other imm.oral purpose," there can be no doubt as to what class was aimed at by the clause forbidding the importation of alien women for purposes of prostitution. It refers to women who for hire or without hire offer their bodies to indiscriminate intercourse with men. The lives and examples of such persons are in hostility to ''the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement."' Congress no doubt proceeded on the ground that con- tact with society on the part of alien women leading such lives would be hurt- ful to the cause of sound private and pub- lic morality and to the general well-being of the people. Therefore the importa- tion of alien women for purposes of prostitution was forbidden and made a crime against the United States. United States V. Bitty, 208 U. S. 393, 398, 52 L. Ed. 543, 28 S. Ct. 396. See ante, ALIENS, p. 18. 817-1. Publication of paintings and stat- utes, within meaning of copyright laws. — See American Tobacco Co. v. W'erck- meistcr, 207 U. S. 284, 52 L. Ed. 208. 28 S. Ct. 72. See, also, ante. COPYRIGHT, p. 377. 1011 PUBLIC LANDS. Vol. X. PUBLIC LANDS. I. Definitions, Nature and General Consideration, 1015. A. Definitions and ^Meaning of Terms, 1015. II. Acquisition, Control and Disposal, 1015. A. By the States, 1015. 2. Disposal, 1015. i. Patent or Grant, 1015. (7) Contest. Cancellation or Impeachment, 1015. B. By United States Government, 1015. 2. Control, 1015. a. In General, 1015. c. Cutting and Removing Timber, 1015. (1) Right to Cut and Remove, 1015. (a) In General, 1015. e. Regulation of Pasturage, 1016. , 3. Disposal. 1016. a. Power of Disposal and Laws Controlling. 1016. (1) General Statement, 1016. b. Lands Subject to Entry and Sale, 1016. (4) Land Previouslv Granted, Appropriated or Reserved, 1016. (b) Land to Which Inchoate Rights Attached, 1016. bb. Lands Entered by Record, 1016. faa) Prior to Cancellation or Forfeiture, 1016. (c) Lands Granted to Railroad, 1016. (6) Indian Lands. 1016. d. Regular Disposition to Private Individuals, 1016. (2) Right to Acquire and IMethods of Disposal, 1016. (d) Pre-Emptibn, 1016. ee. Amount and Location, 1016. ff. Procedure to Obtain Title, 1017. (bb) Settlement, Occupancy and Improve- ment, 1017. aaa. In General, 1017. ccc. \\'hat Constitutes a Sufficient Set- tlement, 1017. (aaa) In General, 1017. (e) Homestead. 1017. ff. Procedure to Obtain, 1017. (bb) Residence, 1017. (f ) Desert Land, Timber and Stone Land and Tim- ber Culture, 1017. bb. Timber and Stone Land and Timber Culture, 1017. (g) Town Site, 1019. dd. Rights of Occupants — Statement of Claim and Payment of Price, 1019. (a) Right and Title under Entrv, 1019. (5) Right and Title to Public Land, 1019. (c) Prior to Issuance of Patent. 1019. cc. Title and Rights Acquired Prior to Fulfillment of Conditions, 1019. 1012 \'ol. X. PUBLIC LAXDS. (bb) Rights as against Third Parties, 1019. (9) Remedies. 1020. (b) Before the Courts. 1020. cc. Recovery of Money Paid. 1020. (dd) Recovery of Excess. 1020. f. Grants in Aid of Railroads, 1020. (2) Grants in Aid of Construction, 1020. (c) A'esting of Title, 1020. aa. In General— Grants in Prassenti. 1020. (aa) Original Grant. 1020. (j) Lands Included, 1020. aa. General Statement, 1020. cc. Particular Lands Excluded. 1022. (aa) Lands Included in Prior Railroad Grant, 1022. ddd. Railroad Grant Forfeited. 1022. (bb) Reserved Swamp Lands, 1022. (ff) Indian Land, 1022. (hh) Land Claims Arising under General Land Laws, 1023. bbb. Sufficiency and \^aliditv of Claim, 1023. ccc. Effect of Liability to Subsequent Cancellation. 1023. (m) Indemnity Lands, 1023. aa. In General, 1023. bb. A'esting of Title — Selection and Approval. 1023. cc. Land Subject and Amount. 1024. (bb) Lands Subject. 1024. dd. Withdrawal of Indemnity Lands. 1024. (n) Conflicting Grants and Claims. 1025. bb. Railroad Grants Conflicting with Private En- tries. 1025. (r) Rights of Purchasers under Railroad Land Grants. 1025. bb. Recoverv of Purchase Price from Railroad, 1025.' (3) Grant for Right of Way. Station Purposes, etc., 1025. / (c) Lands Subject and Location of Line, 1025. aa. Lands Subject, 1025. (bb) Land Subject to Existing Claims. 1025. (d) Vesting of Title and Estate Acquired, 1026. aa. Vesting of Title, 1026. (h) Forfeiture, Abandonment and Repeal, 1026. (i) Conflicting Claims and Superiority, 1026. h. School and L'niversity Grants and Reservations. 1027. (3) Lands Included and Subiect to Selection, 1027. (c) Mineral Lands. 1027. (11) Sale and Lease of School Land. 1027. Cc) Disposition of Proceeds. 1027. (e) Right to Purchase — Purpose of Purchase. 1027. i. Swamp and Overflowed Land Grants. 1027. (5) Identification. Survev and Selection. 1027. (a) Identification. 1027. bb. By Whom Made and Sufficiency of. 1027. 101.3 PUBLIC LANDS. Vol. X. k. Oregon Donation Acts, 1027. p. Reservations, 1028. (3) Forest Reserves, 1028. q. Grants for Parks, 1028. 4. The Land Department, 1028. c. Land Department Subject to Will of Congress, 1028. h. Review, Cancellation and Correction in Land Department, 1028. (3) Review of Decision of Predecessor, 1028. i. Operation and Effect of Decisions of Land Department, 1028. (1) Conclusiveness — Direct and Collateral Attack, 1028. (b) Questions Concluded or Reviewable, 1028. bb. Construction of Law, 1028. cc. Decisions upon Questions of Fact, 1029. dd. Mixed Question of Law and Fact, 1029. (d) Direct Attack, 1029. bb. At Law or in Equity, 1029. cc. Suits by Government, 1030. (ii) Pleading, 1030. aaa. Sufficiency and Certainty of Al- legations, 1030. (jj) Defenses, 1030. bbb. Laches and Limitations, 1030. (kk) Evidence, 1030. bbb. Admissibility, 1030. ccc. Weight and Sufficiency, 1030. dd. Suits by Private Individuals, 1031. (bb) Proper Relief, 1031. aaa. Establishing of Trust, 1031. (cc) Rights of Parties and Grounds for Re- lief, 1031. aaa. Interest of Complainant, 1031. bbb. Grounds for Relief, 1031. (ccc) Fraud and False Testimonv, 1031. aaaa. In General, 1031. 5. Jurisdiction of and Review by Courts, 1031. a. Before Patent Issued, 1031. III. Grants or Claims Emanating from or Arising under Former Sov- ereign, 1032. C. Spanish, French and Mexican Grants, 1032. 2. Acquisition of Right and Title under Former Sovereigns, 1032. c. Authority to Make and Manner of Making, 1032. (1) Laws Controhing, 1032. (a) In General, 1032. (4) Power of States and Territories, 1032. d. Construction, Operation and Effect, 1032. (2) Conditions, 1032. (f) Effect of Noncompliance, 1032. 3. Recognition, Validation and Confirmation, 1033. a. In General, 1033. c. Legislative Confirmation and Completion of Claims, 1033. (1) Necessity for Confirmation and Ascertainment, 1033. (a) Claims Recognized by Treaty — Perfect and Im- perfect, 1033. 1014 Vol. X. PUBLIC LANDS. 2 5-54 (3) Proceeding to Confirm, Ascertain and Complete, 1034. (d) Determination by Commissioners, 1034. bb. Jurisdiction, Powers and Duties, 1034. (bb) Claims Cognizable, 1034. (e) Determination by State, Territory and Federal Courts, 1034. (cc) Claims Cognizable and Confirmable, 1034. d. Evidence of Grant from Former Sovereign, 1034, (2) Presumption and Burden of Proof, 1034. (b) Presumption of Grant, 1034. CROSS REFERENCES. See the title Public Lands, vol. 10, p. 1, and references there given. ' I. Definitions, Nature and General Consideration. A. Definitions and Meaning of Terms. — See note 2. II. Acquisition, Control and Disposal. A. By the States— 2. Disposal— i. Patent or Grant— {7) Contest, Cancella- tion or Impeachment. — Cancellation or Impeachment. — See note 26. Patents from a state for its public lands, signed by the proper officers, and in due form to convey the title of the state to the patentees, are not subjects of individual attack as improperly issued because the land scrip accepted by the state in lieu of the purchase price was not legally receivable for the land in question, but such patents can be set aside only in judicial proceedings instituted on behalf of the state. -^^ B. By United States Government — 2. Control — a. In General. — ^The public lands are vested in congress in trust for the people, and it is not for the courts to say how the trust shall be administered.^ i'^ c. Cutting and Removing Timber — (1) Right to Cut and Remove — (a) In General. — See note 35. 25-2. Term "public land." — "As stated for the courts to say how that trust shall in Newhall i: Sanger, 92 U. S. 761, 763, 23 be administered. That is for congress to L. Ed. 769: 'The •v\ords ''public lands" are determine. The courts can not compel it h.abitnally used in our legislation to rle- to set aside lands for settlement, or to tcribe such as are subject to sale or other suffer them to be used for agricultural or disposal under general laws.' "' Union grazing purposes, nor interfere when, in Pac. R. Co. z'. Harris, LH."> U. S. 383. 34 the exercise of its discretion, congress L. Ed. 246,_ 30 S. Ct. 138. See, also, establishes a forest reserve for what it Barker v. Rarvey, 181 U- S. 48i. 490, 45 decides to be national and public pur- L. Ed. 963, 21 S. Ct. 690; Minnesota v. poses. In the same way and in the exer- Hitchcock, 185 U. 3. 373, 391, 46 L. Ed. cise of the same trust it may disestab- 954, 22 S. Ct. 650 lish a reserve, and devote the property to 39-26. Proceeding to annul title. — some otlier national and public purpose. Titles to public land acquired in violation These are rights incident to proprietor- of a state statute mav be disaffirmed by ship, to say nothing of the power of the the state, and annulled in a proceeding for United States as a sovereign over the that purpose. Kydj i\ United States, 35 jjroperty belonging to it." Light v. United Afin. D. C- 451. writ ' f certiorari granted. States. 220 U. S. 523. 55 L. Ed. 570, 31 S. Hyde v. United States, 218 U. S. 681, 54 Ct. 485. L. Ed. 1207, 31 S. Ct. 228. 54-35. Right to cut and remove timber. 39-28a. Who may attack. — Frellsen & — The authority to cut timber from the Co. 7\ Crandell. 217 U. S. 71. 54 L. Ed. 670, public domain under Act June 3, 1878, c. 30 S. Ct. 490. affirming 120 La. 712. 150, 20 Stat. 88 (U. S. Comp_. St. 1901. 54-31a. Public lands vested in congress p. 1528), upon "lands being mineral, and in trust. — " 'All the public lands of the not subject to entry under existing laws nation are held in trust for the people of the United States, except for mineral of the whole country.' United States f. entry," does not extend to land adjacent Trinidad Coal, etc., Co.. 137 U. S. 160. 34 to lands valuable for mineral purposes, L. Ed. 640, 11 S. Ct. 57. And it is not but only includes lands known to l)e them- 1015 69-74 PUBLIC LAXDS. \o\. X. e. Regulation of Pasturage. — As to regulation of pasturage on forest reserves, see ante. Animals, p. 27. As to delegation by congress of such authority, to the secretary of agriculture, see ante, Constitutionai, Law, p. 264. 3. Disposal — a. Poiver of Disposal and Lazi's Controlling — (1) General Statement. — See ante, "In General," II, B, 2, a. b. Lands Subject to Entry and Sale — (4) Land Previouslx Granted. Appro- priated or Reserved — (b) Land to Which Inchoate Rights Attached — bb. Lands Entered by Record — (aa) Prior to Cancellation or Forfeiture. — See note 99. (c) Lands Granted to Railroad. — See note 4. (6) Indian Lands. — But the rights of the Indians under the treaty of 1860 were not infringed by a grant to a railroad, the treaty making provision for such a grant on certain conditions being complied with, where the act making the grant fulfills such conditions. -•''' d. Regular Disposition to Private Individuals — (2) Right to Acquire and Methods of Disposal — (d) Pre-Emption — ee. Amount and Location. — The pre- selves valuable for minerals, which are the only lands excluded by the federal statutes from any but mineral entry. Judgment (1907), 151 F. 1022, 81 C. C. A. 682, reversed. United States v. Plowman, 216 U. S. 372, 54 L. Ed. 523, 30 S. Ct. 299. "As was said in Northern Pac. R. Co. V. Lewis, 162 U. S. 366, 376, 40 L. Ed. 1002, 16 S. Ct. 831, 'the right to cut is excep- tional and quite narrow,' and the party claiming the right must prove it. The only lands excluded in 1878 or now from any but mineral entry are lands 'valuable for minerals' or containing 'valuable min- eral deposits.' Rev. Stat.. §§ 2302, 2318, 2319, U. S. Comp. Stat., pp. 1410, 1423, 1424. See § 2320." United States v. Plow- man, 216 U. S. 372, 54 L. Ed. 523, 525, 30 S. Ct. 299. "The matter was much discussed in Davis V. Weibold, 139 U. S. 507, 35 L. Ed. 238, 11 S. Ct. 628, and there it was said that the exceptions of mineral land froin pre-emption and settlement, etc., 'are not held to exclude all lands in which min- erals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expendi- ture for its extraction, and known to be so at the date of the grant.' P. 519. A land-department rule is quoted, with seeming approval, that 'if the land is worth more tor agriculture than mining, it is not mineral land, although it may contain some measure of gold or silver.' " United States v. Plowman, 216 U. S. 372, 54 L. Ed. 523, 30 S. Ct. 299. 69-99. Prior to cancellation or forfei- ture. — A soldier's declaratory statement filed during the time allowed for an ap- peal to the secretary of the interior from a decision of the commissioner of the gen- eral land office against the validity of a prior homestead entry confers no rights upon the applicant, where, by a rule of the land department in force when a pat- ent for the land is finally issued, no ap- plication will be received or any rights recognized as initiated by the tender of an application for a tract embraced in an entry of record until said entry has been canceled from the records of the local office. Decree (1904), 79 P. 265, 15 Okl. 12, affirmed. Holt v. Murphy, 207 U. S. 407, 52 L. Ed. 271, 28 S. Ct. 212. 70-4. Lands granted to railroads. — The withdrawal from sale, pre-emption, or settJement of lands within the indemnity limits of the Railway Land Grant Act of March 3, 1863 (12 Stat- at L. 772), which withdrawal was authorized, because the road had not then been definitely located, does not prevent a homestead claim or right from attaching to such land before definite location, and such right will be protected as against the subsequent selec- tion of the land by the railway compan3^ Brandon r. Ard, 211 U. S. 11, 53 L. Ed. 68. 29 S. Ct. 1. See post, "Grants in Aid of Railroads," II, B. 3, f. 74-23a. Right under treaty not in- fringed. — Congress did not infringe any rights of the Indians to whom the lands in the Delaware Diminished Indian Res- ervation were assigned in severalty under the treaty of May 30, 1860 (12 Stat, at L. 1129), in which it was agreed that a specified railway company should have the perpetual right of way over any of the lands so assigned on the payment of a just coinpensation to those whose lands were crossed by its railroad, by the grant to such railway of a right of way 400 feet in width through the public lands, made by the Act of July 1. 1862 (12 Stat, at L. 489, chap. 120), which provided that the United States would, as rapidly as might be, extinguish the Indian titles to all lands required for such right of way, since the provisions of the statute and the treaty, taken together, mean that the right of way was granted not merely by the United States, but with the assent of the Indian assignees, and that the latter Avere to be justlj^ compensated Kindred v. Union Pac. R. Co.. 225 U. S. 582, 56 L- Ed. 1216, 32 S. Ct. 780. 1016 'ol. X. PUBLIC LAXDS. 87-105 emption settler has the right, under the Act of 1841. to enter either 160 acres in legal subdivisions lying contiguous to each other without reference to the quarter section lines, or he has the right to enter a quarter section as such, in which case he can take the amount of land contained therein as shown by the official survey. In entering a "quarter section." he can not, of course, depart from the ascertained lines, but must take 160 acres or less, as the case mav be.-*^ ti. Procedure to Obtain Title — (bb) Settlement, Occupancy and Iniprove- nient^aaa.. In General. — See note 6. ccc. What Constitutes a Sufficient Settlement — (aaa) In General. — See post. "\\'eight and Sufficiency." II, B. 4. i, ( 1 ). ( d ). cc. (kk), ccc. (e) Homestead — ff. Procedure to Obtain — ( bb ) Residence. — See note 84. (f ) Desert Land, Timber and Stone Land and Timber Culture — bb. Timber and Stone Land and Timber Culture.^See post. "Land Department Subject to Will of Congress." II. B. 4. c. Persons Entitled to Enter. — A special agent of the general land office is prevented from making a valid timber culture entry by Rev. St. U. S., § 452 [U. S. Comp. St. 1901. p. 257], prohibiting officers, clerks, and employees in the general land office from directly or indirectly purchasing or becoming in- terested in the purchase of any of the public land.^*^'' 87-4a. Amount and location. — St. Paul, etc.. R. Co. z\ Donohue. 210 U. S. 21, 52 L. Ed. 941. 28 S. Ct. 600. A homesteader who initiates a right as to either surve3-ed or unsiirveyed land, and complies with the legal regulations, may. when he enters the land, embrace in his claim land in contiguous quarter sections, if he does not exceed the quantity allowed by law, and provided that his improve- mients are upon some portion of the tract, and that he does such acts as put the pub- lic upon notice of the extent of his claim. Judgment. Donohue z\ St. Paul, M. & M. Ry. Co. (190T), 112 X. W. 413. 101 Minn. 239, affirmed. St. Paul. etc.. R. Co. f. Donohue. 210 U. S. 21. .52 L. Ed. 941. 28 S. Ct. 600. "This is further illustrated by the text of § 2306. Rev. Stat. (U. S. Comp. Stat. 1901. p. 1415). which provides that every person entitled to enter a soldier's and sailor's homestead, who had previously entered, under the homestead laws, a quantity of land less than 160 acres, was authorized 'to enter so much land as, when added lo the quantity previously entered, should not exceed 160 acres.'" St. Paul. etc.. R. Co. z: Donohue. 210 U. S. 21, 52 L. Ed. 941. 28 S. Ct. 600. The homestead law enacted on ^lay 20. 1862. 12 Stat, at L. 392. chap. 75. The text which was afterwards embodied in Rev. Stat.. § 2289. et seq. (U. S. Comp. Stat. 1901, p. 1388), makes it obvious that it was contemplated that, as under the settled rule applied in the enforcement of the pre-emption laws, the homesteader was not to be confined to a particular regular quarter-section tract in order that he might receive 160 acres, but was au- thorized to make up the allotted quantity by joining contiguous legal subdivisions. St. Paul, etc., R. Co. z'. Donohue, 210 U. S. 21, 52 L. Ed. 941. 28 S. Ct. 60(i. 87-6. Settlement, occupancy and im- provement. — "Both under the pre-emption law and under the homestead law, after the Act of 1880, the rights of the settler were initiated by settlement. In general terms it may be said that the pre-emption laws (Rev. Stat., §§ 2257 to 2288. U. S. Comp. Stat. 1901, pp. 1381-1385). as a con- dition to an entry of public lands, merely required that the appropriation should have been for the exclusive use of the settler, that he should erect a dwelling house on the land, reside upon the tract, and improve the same. By the homestead law, residence upon and cultivation of the land was required. Under neither law was there a specific requirement as to when the improvement of the land should be commenced or as to the nature and ex- lent of such improvement, nor was there any requirement that the land selected should be inclosed." St. Paul, etc., R. Co. r. Donohue. 210 U. S. 21. 52 L. Ed. 941, 28 S. Ct. 600. 101-84. Residence — Improvement. — Un- der the homestead law. after the Act of 1880, the rights of the settler were in- itiated by settlement. By the homestead law. residence upon and cultivation of the land was required. There was no specific requirement as to when the improvement of the land should be commenced or as to the nature and extent of such improve- ment that the land selected should be in- closed. St. Paul, etc., R. Co. z- Dono- hue. 210 U. S. 21. 52 L. Ed. 941. 28 S. Ct. 600. 105-16a. Right of special agent to en- ter. — Prosser z: Finn. 208 U. S. 67, 52 L. Ed- 392, 28 S. Ct. 225. "It is not clear from anj' document or 1017 105 PUBLIC LANDS. Vol. X. Alienation of Rights. — See note 18. Right Acquired by Entry. — Continuing in possession after ceasing to be a special agent of the land office is not the equivalent of a new timber culture decision to which our attention has been called, what is the scope of the duties of a special agent to the land office, but the existence of that office or position has long been recognized. Suffice it to say- that they have official connection with the general land oflice, and are under its su- pervision and control with respect to the administration of the public lands." Pros- ser V. Finn, 208 U. S. 67, 52 L. Ed. 392, 28 S. Ct. 225, citing Wells v. Nickles, 104 U. S. 444, 26 L. Ed. 825; 1 Land Dec. 608, 620, 696; Re Hall, 2 Land Dec. 814; Re Lawrence, 2 Land Dec. 819; Re North- ern P. R. Co., 2 Land Dec. 820; Re Fond du Lac Reservation, 2 Land Dec. 821; Re Ft. Camerson Reserve, 2 Land Dec. 822; 2 Land Dec. 827; Re Montana Improv. Co., 2 Land Dec. 828; 2 Land Dec. 832; 12 Land Dec. 499. 105-18. Alienation of rights. — An entry- man who has made an application under the Timber and Stone Act (Act June 3. 1878, c. 151, 20 Srat. 89), as amended by Act Aug. 4, 1892, c. 375, 27 Stat. 348 (U. S. Comp. St. 1901, p. 1545), in good faith, and for his exclusive use and benefit, is not prohibited from subsequently agree- ing to convey the land covered by his ap- plication to another, and to perfect his entry for the purpose, after patent, of ful- filling his contract, by the provision of the statute forbidding an entryman or ap- plicant from making an application os- tensibly in his own name, but in reality for, and on behalf of, another. Judgment (D. C. 1907), 157 F. 264, affirmed. United States V. Biggs. 211 U. S. 507, 53 L. Ed. 305, 29 S. Ct. 181; United States v. Free- m.-\n, 211 U. S. 525, 53 L Ed. 311, 29 S. Ct. 185: United States v. Sullenberger. 211 U. S. 522, 53 L. Ed. 311. 29 S. Ct. 186. The omission in Timber and Stone Act Tune 3, 1878, c. 151, § 3. 20 Stat. 89 [U. S. Comp. St. 1901. p. 15451, exacting on the final application some of the requirements made necessary on the original applica- tion for the purchase of land under that act, of any reiteration of the requirem_ents of the statute regarding a speculative pur- pose on the part of the applicant, his bona fides, and his intent to acquire the land for himself alone, is equivalent to an express declaration by congress that these requirements shall not be exacted at the final hearing. Williamson v. United States, 207 U. S. 425. 52 L. Ed. 278, 28 S. Ct. 163. Evidence of the motive of the entryman under Timber and Stone Act June 3, 1878. c. 151, § 3, 20 Stat. 89 [U. S. Comp. St. 1901. p. 1545], at the time of final hearing, which, under tliat act. can not defeat his right to a patent, is inadmissible, on a trial for conspiring to suborn perjury in the proceedings to acquire the land, to show motive in inaking the original ap- plication. Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278. 28 S. Ct. 163, cited in United States v. Biggs, 211 U. S. 507, 53 L. Ed. 305, 29 S. Ct. 181. "These conclusions are directly sus- tained by a recent ruling in Adams z-. Church, 193 U. S. 510, 48 L. Ed. 769, 24 S. Ct. 512. construing the Timber Culture Act. Under that law an applicant for en- try was obliged, among other things, in making his application, to swear to his good faith and to the absence of specula- tive purpose, in the exact words of the statute now under consideration. But in the Timber Culture Act, as in the Timber and Sione Act, the requirement was not reimposed in respect to the final proof. In the cited case the entryman, who had complied with the statute in making his application, had, between the date of the application and the final proof, disposed of his right, and the quesiion was whether by so doing he had forfeited his claim." Williamson v. United States, 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 163. "If the entryman has complied with the statute and made the entry in good faith, in accordance with the terms of the law and the oath required of him upon mak- ing such entry, and has done nothing in- consistent with the terms of the law, we find nothing in the fact that, during his term of occupancy, he has agreed to con- vey an interest to be conveyed after pat- ent issued, which will defeat his claim and forfeit the right acquired by planting the trees and complying with the terms of the law. Had congress intended such re- sult to follow from the alienation of an interest after entry in good faith, it would have so declared in the law." Williamson V. United States, 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 163, citing Myers v. Croft, 13 Wall. 291, 20 L. Ed. 562. Conspiracy to induce entrj'men to con- vey. — A conspirac}^ to induce entrymen who have made application under the Tim- ber and Stone Act of June 3, 1878. as amended by the Act of Aug. 4, 1898, to agree to convey after patent, is not one to defraud the United States "in any manner or for any purpose," within the meaning of the U. S. Rev. Stat., § 5440, U. S. Comp. Stat. 1901, p. 3676, since the former statute not only does not ex- pressly prohibit an entryman from mak- ing such an agreement, but impliedly sanctions it. United States v. Biggs, 211 U. S. 507. 53 L. Ed. 305. 29 S. Ct. 181. See, also, ante, CONSPIRACY, p. 256. 1018 Vol. X. PUBLIC LAXDS. 105-130 entry, where the original entrv^ was invalid because made in direct violation of Rev. St. U. S., § 452 [U. 'S. Comp. St. 1901, p. 257], while he was such special agent. -^^ Cancellation of Entry. — Reliance, in making a timber culture entry, upon the opinion of the commissioner of the general land ofifice, that the provisions of Rev. St. U. S., § 452 [U. S. Comp. St. 1901, p. 257], prohibiting officers, clerks, or employees in the general land office from entering lands within the public domain, did not embrace a special agent of the land office, can confer no interest upon such special agent which will prevent the government, by its proper officer or department, from cancelling his entr}^20b (g) Town Site — dd. Rights of Occupants — Statement of Claim and Pay- ment of Price — (aa) Right and Title under Entry. — See note 34. (5) Right and Title to Public Land — (c) Prior to Issuance of Patent — cc. Title and Rights Acquired Prior to Fulfillment of Conditions — (bb) Rights as against Third Parties. — See note 82. 105-20a. Rights acquired by entry. — Prosser z: Finn. 208 U. S. GT. 52 L. Ed. 392, 28 S. Ct. 225. 105-20b. Cancellation of entry. — Prosser z: Finn, 208 U. S. 67, .52 L. Ed. 392, 28 S. Ct. 22.5. 107-34. Under Act March 2, 1867.— "In Ashby z'. Hall. 119 U. S. 526, 30 L. Ed. 469, 7 S. Ct. 308, this court said, speaking by Mr. Justice Field, that 'the power vested in the legislature of the territory (Montana) in the execution of the trust (under § 2387) upon which the entry was made was confined to regulations for the disposal of the lots and the proceeds of the sales. These regulations might ex- tend to provisions for the ascertainment of the nature and extent of the occupancy of different claimants of lots, and the ex- ecution and delivery to those f9und to Vje occupants in good faith of some official recognition of title, in the nature of a con- veyance. P>nt they could not authorize any diminution of the rights of the oc- cupants when the extent of their occu- pancy was established. The entry v/as in trust for them, and nothing more was necessary than an official recognition of the extent of their occupancy. Under the authority conferred by the Town Site Act, the legislature could not change or close the streets, alleys, and blocks of the town by a new survey. Whatever power it may have had over them did not come from that act, but, if it existed at all, from the general grant of lesjislative power under the Organic Act of the territory.' See, also, Stringfellow f. Cain. 99 U. S. G10, 25 L. Ed. 421; Cofield z: McClelland. 16 Wall. 331, 21 L. Ed. 339; Hussey f. Smith. 99 U. S. 20, 25 L. Ed. 314. ^lany state cases are to the same effect, and may be found in the notes to § 2387 in United States Fed- eral Statutes Annotated, vol. 6, p. 344, et seq." Scully v. Squier. 215 U. S. 144, 54 L. Ed. 131. 30 S. Ct. 51. The rights of the occupants of town- site lots, fixed by the extent of their oc- cupancy, could not be diminished by con- ye>-nncfs from the mayor t'-ustee accord- ing to the plat made and filed under Act Idaho Jan. 8, 1873 (Laws 1873, p. 16), enacted pursuant to Rev. St. U. S., § 2387 (U. S. Comp. St. 1901. p. 1457), to pro- vide for the disposal of the lots — es- pecially where the state supreme court construes such statute as not giving the power to make a survey or plat which did not conform to the lines of occupation. Decree (1907), 90 P. 573, 13 Idaho 417, affirmed. Scully v. Squier, 215 U. S. 144, 54 L. Ed. 131, 30 S. Ct. 51. 130-82. Rights as against third parties. — In Shepley z: Cowan. 91 V. S. 330, 23 L. Ed. 424, there was conflict between a pre- emption claim and a selection on behalf of the state of Missouri under an act of congress conveying to the state a large quantity of land to be selected bv the governor, the act providing that if the selection should be approved by the secre- tary of the interior, patents were to issue. The court s&id: "The party who takes the initiatory step in such cases, if fol- lowed up to patent, is deemed to have acquired the better right, as against others, to the premises. The patent which is afterwards issued relates back to the date of the initiatory act. and cuts oflF all intervening claimants. Thus, the patent upon a state selection takes effect as of the time v/hen the selection is made and reported to the land office: and the pat- ent upon a pre-emption settlement takes eflfect from the time of the settlement, as disclosed in the declaratory statement or proofs of the settler to the register of the local land office." Weverhaeuser ?'. Hovt. 219 U S. 380, 55 L. td. 258. 31 S. Ct. 300. The court, in the above cited case, after distinguishing Frisbie z'. Whitnej'. 9 Wall. 187, 19 L. Ed. 66S, and The Yosemite Val- ley Case. 15 Wall. 77. 21 L. Ed. 82. said: "But whilst, according to these decisions, no vested right as against the United States is acquired until all the prerequisites for the acquisition of the ti^le have been 1019 131-174 PUBLIC LANDS. \o\. X. Entryman Acquires Equity. — One who has taken land under the pre- emption or homestead law acquires an equity of which he can not he deprived by any individual under the like laws.^-'"' (9) Remedies— h. Before the Courts — cc. Recovery of Money Paid — (dd) Recoverv of Excess. — One who pays money to a government officer for public lands in" excess of the price established by law can not recover back the excess in an action against the United States; the principle being that courts are not established to unsettle the transactions of men.-'''^'' And where money is voluntarily paid to a receiver of the land office after a party's attention has been called to a legal risk attending such act, the payment must be regarded as made in mistake of law, and not in mistake of fact, and an action will not lie to recover it back.-""'^'' f. Grants in Aid of Railroads— (2) Grants in Aid of Construction — (c) J'esting of Title — aa. /;/ General — Grants in Prcvsenti — ( aa ) Original Grant. — See note 32. (j) Lands Included — aa. General Statement. — See note 61. complied with, parties may, as against each other, acquire a right to l)e pre- ferred in the purchase or other acquisition of the land when the United States have determined to sell or donate the property. In all such cases the first in time in the commencement of proceedings for the ac- quisition of the title, when the same are regularly followed up, is deemed to be the first in right." Weverhaeuser f. Hoyt, 219 U. S. 380, 55 L. Ed. 258. 31 S. Ct. 300. 131-83a. Entryman acquires equity. — Union Pac. R. Co. v. Harris, 215 U. S. 386, 54 L. Ed. 2-46, 30 S. Ct. 138. "While the power of congress over lands which an individual is seeking to acquire under either the pre-emption or the homestead law remains until the pay- ment of the full purchase price required by the former law or the full occupation prescribed by the latter, yet, under the general land laws of the United States, one who, having made an entry, is in actual occupation under the pre-emption or homestead law% can not be dispossessed of his priority at the instance of any in- dividual " Union Pac. R. Co. z'. Harris, 215 U. S. 386, 54 L. Ed. 246, 30 S. Ct. 138, citing Hastings, etc., R. Co. t'. Whitney, 132 U. S. 357, 364, 33 L. Ed. 363, 10 S. Ct. 112. 145-56a. Recovery of excess. — United States V. ]Miller, 208 U. S. 32, 52 L. Ed. 376. 28 S. Ct. 199. 145-56b. Money paid under mistake of law.— United States z'. Miller, 208 U. S. 32, 52 L. Ed. 376, 28 S. Ct. 199. 155-32. Grant in praesenti. — The grant of lands within place limits, made by Act July 1. 1862, c. 120, § 14. 12 Stat. 489, as amended by Act July 2, 1864, c. 216, § 17, 13 Stat. 356, in aid of a branch railroad to be constructed on the same terms and conditions as the main line, is not taken out of the general rule that the grant is one in pr?esenti, and that, on filing the map of definite location, the title passes to the railway company so that it can be held adversely, even as against such com- pany, because the road which might build the branch was not, or may not have been, in existence at the time of the passage of the amendatory act, nor because of its provision that said company shall be "en- titled to receive" alternate sections of land for ten miles in width on each side of the way, along the whole length of the branch, nor because of the supposed lim- ited character of the forfeiture provided for failure to complete the branch. Mis- souri Valley Land Co. v. Wiese, 208 U. S. 234, 52 L. Ed. 466, 28 S. Ct. 294, affirm- ing judgment in Wiese z'. Union Pac. Rv. Co. "(Neb. 1906), 108 N. W. 175; Missouri Valley Land Co. v. Wrich, 208 U. S. 250, 52 L. Ed. 473, 28 S. Ct. 299, affirming judg- ment Wrich z'. Union Pac. Ry. Co. (Neb. 1906), 108 N. W. 178. "This is so, since it has been expressly held that the main line grant was one in praesenti, that the grantee company had a right to bring ejectment for such land after the definite location of its road, and that consequently, from, the time of such definite location, a possession might be acquired by a third party to land em- braced within the grant, which would be adverse, even as to the railroad company, and bar its title if possession was con- tinued for the statutory length of time." Missouri Vallev Land Co. v. Wiese, 208 U. S. 234, 52 L. Ed. 466, 28 S- Ct. 294, citing De=eret Salt Co. v. Tarpey, 142 U. S. 241, 35 L. Ed. 999, 12 S. Ct. 158; Toltec Ranch Co. r. Cook, 191 U. S. 532, 48 L. Ed. 29i, 24 S. Ct. 166; Iowa R. Land Co. z'. Blumer. 206 U. S. 482, 51 L. Ed. 1148, 27 S. Ct. 769. 174-61. Land included — T^anH soM or otherwise appropriated. — ^"In Nelson v. NorMieni Pac. R. Co., 188 U. S. 108, 130, 47 L. Ed. 406, 23 S. Ct. 302, the court again construed the Act of 1864. That was the case of one who went upon and 1020 Vol. X. PUBLIC LAXDS. 174 occupied certain lands within the place limits, before the dehnite location ol the railroad line, with the bona fide purpose to acquire title under the laws of the L>'nit«ci States. This court said: 'It re- sults that the railroad company did not acquire any vested interest in the land here in dispute in virtue of its map or general route or the withdrawal order based on such map; and if such land was not "free from pre-eniption or other claims or rights,'' or was "occupied by homestead settlers"' at the date of the dehnite location on December 8, 1884, it did not pass by the grant of 1864.' " North- ern Pac. R. Co. V. Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607. "Some reliance is placed on the delay occurring after the survey of the lands before 1 rodi.ck made his homestead ap- plication, the statute of May 14, 1880, chap. 89, 21 Stat, at L. 140, U. S. Comp. Stat. 1901, p. 1392, prescribing a certain period within which the homesteader should act after the survey of the lands. i)Ut that delay was immaterial as affect- ing the rights of the homestead applicant, because no rights of others had inter- vened intermediate the survey and Tro- dick's formal application." Northern Pac. R. Co. V. Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607. "A similar question arose in Whitney z: Taylor, 158 U. S. 85, 97, 39 L. Ed. 906, 15 S. Ct. 796, and it was thus disposed of: Tt is true that § 6 of the act of 1853 (10 Stat, at L. 246, chap. 145) provides "that W'here unsurveyed lands are claimed by pre-emption, the usual notice of such claim shall be filed within three months after the return of the plats of surveys to the land offices." ' '' Northern Pac. R. Co. V. Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607. "But it was held in Johnson Z'. Towsley, 13 Wall. 72, 87, 20 L. Ed. 485, that a fail- ure to file within the prescribed time did not vitiate the proceeding, neither the de- lay be taken advantage of by one who had acquired no rights prior to the filing. As said in the opinion in that case (p. 90): 'If no other party had made a settlement or has given notice of such intention, then no one has been injured by the de- lay beyond three months, and if, at any time after the three months, while the party is still in possession, he makes his declaration, and this is done before tny- one else has initiated a right of pre- emption by settlement or declaration, we can see no purpose in forbidding him to make his declaration, or in making it void when made. And we think that con- gress intended to provide for the protec- tion of the first settler by giving liim three months to make his declaration, and for all other settlers by saying, if this is not done withi?! three months, anyone else who has settled on it within that time, or at any time before the first set- tler makes his declaration, shall have tne better right." " Northern Pac. R. Uo. i. Trodick, 221 U. S. 208, 55 E. Ed. 704, 31 S. Ct. 607. '"See, also, Lansdale ;:•. Daniels, 100 U. S. 113, 117, 25 L. Ed. 587, where it is said: 'Such a notice, if given before the time allowed by law, is a nullity; but the rule IS otherwise where it is hied subsequent to the period prescribed by the amenda- tory act, as, in the latter event, it is held to be operative and sufficient unless some other person had previously commenced a settlement and given the required no- tice ot claim.' The delay in filing, there- fore, had no effect upon the validity of the declaratory statement." Northern Pac. R. Co. V. Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607. "In McNeal's Case, 6 Land Dec. 652, Secretary Vilas referred to the Act of May 14, 1880 (21 Stat, at L. 140, chap. 89, U. S. Comp. Stat. 1901, p. 1392), which related to settlers on public lands, and provided that their rights should relate back to the date of settlement, the same as if he settled under the pre-emption laws. The entry in that case was can- celed by the commissioner. ine secre- tary said: 'There being no intervening- claim, I see no reason why his rights may not relate back to the time of his settle- ment, even though he did not file for the land within three months thereafter, in strict accordance with the requirements of the Act of May 14, 1880.' " Northern Pac. R. Co. z: Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607. "In St. Paul, etc., R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 5, 35 L. Ed. 77, 11 S. Ct. 389, a case arising under the North- ern Pacific grant of 1864, it was distinctly held that "land which, previously to defi- nite location, had been reserved, sold, granted, or otherwise appropriated, or upon which there was a pre-emption "or other claim or right," did not pass bj' the grant of congress.' "' Northern Pac. R. Co. V. Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607. "In United States z'. Northern Pac. R. Co., 152 U. S. 284, 296, 38 L. Ed. 443, 14 S. Ct. 598. the court, referring to the same grant, said: 'The Act of 1864 granted to the Northern Pacific Railroad Company only public land, * * =p free from pre- emption or other claims or rights at the time its line of road was definitely fixed and a plat thereof filed in the office of the commissioner of the general land office.' " Xortliern Pac. R. Co. z'. Trodick, 221 U. S. 208, 55 L. Ed. 704. 31 S. Ct. 601. "In Northern Pac. R. Co. z\ Sanders, 166 U. S. 620, 629. 41 L. Ed. 1139, 17 S. Ct. 671, it was said that the .Act of July 2, 1864, under which the railroad com- pany claims title, excluded from the grant 'all lands that were not. at the time 1021 179 PUBLIC LANDS. Vol. X. cc. Particular Lands Excluded — (aa) Lands Included in Prior Railroad Grant — ddd. Railroad Grant Forfeited. — See note 82. But land lying within the primary limits of the grant made to the Atlantic & Pacific Railroad Com- pany by the Act of July 27, 1866, and also within the indemnity limits of the grant made by the same act to the Southern Pacific Railroad Company, might,, after the forfeiture by the Atlantic & Pacific Railroad Company of its grant by the Act of July 6, 1886, be selected as indemnity lands by the Southern Pacific Railroad Company.^^a (bb) Reserved Swamp Lands. — See note 84. (fif) Indian Land. — As to infringement of rights under treaty of May 30,. 1860, by an act granting right of way to railway, see ante, "Indian Lands," II, B, 3, b, (6). Effect of Provision in Treaty. — Lands in the Delaware Diminished In- dian Reservation, which had been assigned in severalty under the treaty of May 30, 1860, must be deemed included in the terms "public lands," as used in the Act of July 1, 1862, granting a right of way to the Leavenworth, Pawnee & Western Railroad Company through the public lands, in view of the provision of that act that the United States should extinguish as rapidly as might be the Indian titles to all lands required for the right of way, and of the action of the the line of the road was definitely fixed, free from pre-emption or other claims or rights.' " Northern Pac. R. Co. v. Tro- dick, 221 U. S. 208, 55 L- Ed. 704, 31 S. Ct. 607. "In United States z'. Oregon, etc., R. Co.. 176 U. S. 28, 50, 44 L. Ed. 358, 20 S. Ct. 261, the court held that the 'Northern Pacific Railroad Company could take no lands except such as were unappropriated at the time its line was definitely fixed." " Northern Pac. R. Co. v. Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607. 179-82. Railroad grant forfeited. — None of the lands lying within either the granted or the indemnity limits of the grant made to the Atlantic & Pacific Rail- road Company by the Act of July 27, 1866 (14 Stat, at L. 292, chap. 278), were sub- ject to selection as indemnitj' lands by the Southern Pacific Railroad Company, un- der the Act of March 3, 1871 (16 Stat, at L. 573, 579, chap. 122), § 23, although ly- ing within the indeinnity limits of such grant, and although the Atlantic & Pa- cific Railroad Company had forfeited its grant by the Act of July 6, 1886 (24 Stat, at L. 123, chap. 637), before the Southern Pacific Railroad Company made its selec- tion. Southern Pac. R. Co. v. United States, 223 U. S. 560, 56 L. Ed. 551, 32 S. Ct. 325. "The Atlantic & Pacific road forfeited its grant (Act of July 6, 1886, chap. 637, 24 Stat, at L. 123), and thereafter the Southern Pacific selected the parcels in question as indemnity under its mainline grant. The rights of the Southern Pacific under this grant were not subordinated to those of the Atlantic & Pacific under the same statute, as they were by its branch- line grant of 1871." United States v. Southern Pac. R. Co., 223 U. S. 565, 56 L. Ed. 553, 32 S. Ct. 326. "In Southern Pac. R. Co. v. United States, 168 U. S. 1, 42 L. Ed. 355, 18 S. Ct. 18, the lands in controversy embraced among others, as stated by Mr. Justice Harlan, 'lands within the Southern Pa- cific indemnity limits and the Atlantic & Pacific granted limits; [and] lands within the common indemnity limits of 'both grants.' Id. 47. It was held that the for- feiture to the United States did not en- large the right of the Southern Pacific to select lands in question, and the de- cree was for the United States. The proposition laid down in United States v. Southern Pac. R. Co.. 146 U. S. 570, 36 L. Ed. 1091, 13 S. Ct. 152, and United States- V. Colton IMarble, etc., Co., 146 U. S. 615, 30 L. Ed. 1104, 13 S. Ct. 163, was applied to Southern Pacific branch line indemnity lands." Southern Pac. R. Co. v. United States, 223 U. S. 560, 56 L. Ed. 551, 32 S. Ct. 325. 179-82a. Land lying within primary limits and also with indemnity limits. — United States v. Southern Pac. R. Co., 223 U. S. 565, 56 L. Ed. 553, 32 S. Ct. 326. 179-84. Reserved swamp lands. — Pro- ceedings instituted prior to the definite location of a railway, for the purpose of bringing under the operation of the Swamp Land Act (Act Sept. 28, 1850, c. 84, 9 Stat. 519 [U. S. Comp. St. 1901, p. 1586]) certain lands within the place limits of the land grant made to the rail- way company by Act May 12, 1864, c. 84, 13 Stat. 72, do not except such lands from the railway land grant as being pre- viously reserved, if they were not in fact swamp or overflowed lands. United States V. Chicago, etc., R. Co., 218 U. S. 233, 54 L. Ed. 1015, 31 S. Ct. 7, affirming decree (1908), 160 F. 818, 87 C. C. A. 592. 1022 Vol. X. PUBLIC LANDS. 182-192 land department in so interpreting the statute.-'' (hh) Land Claims Arising under General Land Laws — bbb. Sufficiency and Validity of Claim. — See note 11. ccc. Effect of Liability to Subsequent Cancellation. — See note 19. (m) Indemnity Lands — aa. In General. — An indemnity grant, like the resid- uary clause in a will, contemplates the uncertain and looks to the future. What a railroad is to be indemnified for may be fixed as of the moment of the grant, but what it may elect when its right to indemnity is determined depends on the state of the lands selected at the moment of choice.-"^^^ Deficiency Must First Appear. — See note 40. Place of Selection. — A selection of indemnity lands by the Northern Pa- cific Railroad Company, under the Act of July 2, 1864, c. 217, 13 Stat. 365. and the joint resolution of May 31, 1870, No. 67, 16 Stat. 378, is not unlawful because the tract selected was not on the same side of the railroad as the tract lost, and was not the nearest unappropriated land.^-'^ bb. Vesting of Title — Selection and Approval. — See note 43. 182-2a. Effect of provision in treaty. — Kindred z: United Pac. R. Co., 225 U. S. 582, 56 L. Ed. 1216, 32 S. Ct. 780. 185-11. Lands entered for pre-emption or homestead. — Unsurveyed public land within the place limits of the grant of July 2, 1864 (chapter 217, 13 Stat. 365), to the Northern Pacific Railroad Company, which, at the time of the definite location of the line, was actually occupied by a settler intending in good faith to acquire title under the homestead' laws as soon as the land should be surveyed, was ex- cepted from the operation of the land grant, although such occupancy was not evidenced by a record of any kind. North- ern Pac. R. Co. v. Trodick, 221 U. S. 208, 55 L. Ed. 704, 31 S. Ct. 607, affirming de- cree (1908), Trodick z'. Northern Pac. Ry. Co., 164 F. 913, 90 C. C. A. 653. A delay beyond the time fixed by Act May 14, 1880, c. 89, 21 Stat. 140 (U. S. Comp. St. 1901, p. 1392), within which a homesteader must file his application after a survey of the land, can not inure to the benefit of a railway company claim- ing the land under the land grant of July 2, 1864 (Act July 2, 1864, c. 217, 13 Stat. 365), on the theory that it had acquired an interest therein by the mere definite location of its land at a time when the land was in the actual occupancy of the homestead settler. Northern Pac. R. Co. z: Trodick, 221 U. S. 208, 55 L. Ed. 704. 31 S. Ct. 607, affirming decree in Trodick V. Northern Pac. Ry. Co., 164 F. 913. 90 C. C. A. 653. 187-19. Effect of liability and subse- quent cancellation. — The relinquishment of a homestead entry after final decision of the secretary of the interior in favor of the entryman in a contest with a railway company claiming under a subsequent selection of indemnity lands does not in- ure to the benefit of the railway company, in view of the provision of Act Aug. 5, 1892, c. 382, 27 Stat. 390, confining such selection to lands not mineral and not reserved, "and to which no adverse right or claim shall have attached or have been initiated,"' and such land, by the express provisions of Act May 14, 1880, c. 89, 21 Stat. 141 (U. S. Comp. St. 1901, p. 1393), is open to settlement and entry. Judg- ment. Donohue v. St. Paul, M. & M. Ry. Co. (1907), 112 N. W. 413, 101 Minn. 239, affirmed. St. Paul, etc., R. Co. v. Dono- hue, 210 U. S. 21, 52 L. Ed. 941. 28 S. Ct. 600. 191-38a. Nature of indemnity grant. — United States v. Southern Pac. R. Co., 223 U. S. 565, 56 L. Ed. 553. 32 S. Ct. 326. 191-40. Must be deficiency within place limits. — A valid basis is afi:'orded for the selection by the Northern Pacific Rail- road Company of lands within the second indemnity limits, under the joint resolu- tion of May 31, 1870, No. 67 (16 Stat. 378), where certain lands did not pass under its land grant of July 2, 1864, c. 217, 13 Stat. 365, 367, c. 217, because they fell within the indemnity limits of the grant of May 5, 1864 (Act May 5, 1864, c. 79, 13 Stat. 64), in aid of another railroad, as adjusted to the line of definite location of that road, and were selected by that road after the date of the Northern Pacific land grant, but prior to the definite loca- tion of that line of road. Hoyt v. Weyerhaeuser, 161 F. 324, 88 C. C. 404; Weverhaeuser z: Hoyt, 219 U. S. 380, 55 L. Ed. 258, 31 S. Ct. 300. 192-42a. Place of selection. — Weyer- haeuser z: Hoyt, 219 U. S. 380, 424, 55 L. Ed. 258. 31 S. Ct. 300. 192-43. Vesting of title — Selection and approval. — "In Oregon, etc., R. Co. v. United States, No. 1, 189 U. S. 103, 47 L. Ed. 726, 23 S. Ct. 615, the court said (p. 112): 'Now, it has long been settled that while a railroad company, after its definite location, acquires an interest in the odd- numbered sections within its place or granted limits, which interest relates back 1023 194-195 PUBLIC LANDS. Vol. X. cc. Land Subject and Amount — ( bb ) Land Subject. — See note 51. dd. JJ'ithdran-al of Lideinnity Lands. — See note 54. Effect of Unauthorized Withdrawal. — The withdrawal from sale, pre- emption, or settlement of lands within the indemnity limits of the Railway Land Grant Act of March 3, 1863 (12 Stat, at L. ^72), which withdrawal was unauthorized, because the road had not then been definitely located, does not prevent a homestead claim or right from attaching to such land before defi- to the date of the granting act, the rule is otherwise as to lands within indemnity limits. As to lands of the latter class, the company acquires no interest in any specific sections until a selection is made with the approval of the land department; and then its right relates to the date of the selection. And nothing stands in the way of a disposition of indemnity lands, prior to selection, as congress may choose to make.' " Weyerhaeuser z'. Hoyt, 219 U. S. 380, 55 L. Ed. 258, 31 S. Ct. 300. "The doctrine thus affirmatively estab- lished by this court, as we have said, has been the rule applied by the land depart- ment in the practical execution of land grants from the beginning." Weyer- haeuser r. Hoyt, 219 U. S. 380, 55 L. Ed. 258, 31 S. Ct. 300, citing Porter z: Lan- drum, 31 Land Dec. 352; Re Southern P. R. Co., 32 Land Dec. 51; Re Santa Fe P. R. Co., 33 Land Dec. 161; Eaton v. North- ern P. R. Co., 33 Land Dec. 426; Santa Fe P. R. Co. ZK Northern P. R. Co.. 37 Land Dec. 669. 194-51. Lands to which pre-emption and homestead rights attached. — An at- tempt oy a railway company to select lieu lands within the indemnity limits of the grant of July 4, 1866, which was unsuc- cessful because such selection was rejected by the secretary of the interior for the failure of the railway company to furnish a list of the lands lost within the place limits for wdiich the lieu lands were se- lected, can not carry back the title of those claiming under the railway company un- der a second selection, made when the land in question was in the actual bona fide occupancy of a person claiming it as a homestead. Osborn v. Froyseth, 216 U. S. 571, 54 L. Ed. 619, 30 S. Ct. 420. The selection of land within the indem- nity limits of the railroad land grant of July 4, 1866, to supply deficiencies in the place limits, confers no rights upon the railway company as against a person then actually occupying, in good faith, a por- tion of the lands so selected, and claiming it as a homestead, although his entry was subsequently rejected by the land depart- ment, either because the secretary of the interior had, though without authority, withdrawn the lands from settlement, or because of defects in his application. Judgment (1909) 119 N. W. 1135, 107 Minn. 568, affirmed. Osborn z'. Froyseth, 216 U. S. 571, 54 L. Ed. 019, 30 S. Ct. 420. "It had, by such settlement, been segre- gated from the lands subject to selection, and in a contest between stich a home- steader and those claiming under selec- tions subsequently made of lieu lands, the claim of the former is the better claim. Under the Act of May 14, 1880 (chap. 89, 21 Stat, at L. 141, § 3, U. S. Comp. Stat. 1901. p. 1393), the right of one settling in good faith for the purpose of claiming a homestead 'relates, back to tlie date of set- tlement.' " Osborn v. Froyseth, 216 U. S. 571, 54 L. Ed. 619. 30 S. Ct. 420,. citing Nel- son v. Northern Pac. R. Co., 188 U. S. 108, 47 L. Ed. 406, 23 S. Ct. 302; Sjoli r. Dres- chel, 199 U. S. 564, 50 L. Ed. 311, 26 S. Ct. 154; St. Patil, etc., R. Co. v. Donohue, 210 U. S. 21, 52 L. Ed. 941, 28 S. Ct. 600. "The doctrine that, until selection made, no title vests in any indemnity lands, has been recognized in several decisions of this court. Thus, in Ryan v. Railroad Co., 99 U. S. 382, 386, 25 L. Ed. 305, in con- sidering a graftt of land by congress, in aid of the construction of a railroad sim- ilar in its general features to the one in this case, the court said: 'Under this statute, when the road was located and the maps were made, the right of the com- pany to the odd sections first named be- came ipso facto fixed and absolute. With respect to the "lieu lands," as they are called, the right was only a float, and at- tached to no specific tracts until the se- lection was actually made in the manner prescribed.' " Osborn v. Froyseth, 216 U. S. 571, 54 L. Ed. 619, 30 S. Ct. 420. "In Sjoli V. Dreschel, 199 U. S. 564, 566, 50 L. Ed. 311, 26 S. Ct. 154, this court said: 'That up to the time such approval is given, lands within indemnity limits, al- though embraced by the company's ' list of selections, are subject to be disposed of by the United States, or to be settled upon and occupied under the pre-emption and homestead laws of the United States.' " Osborn z'. Froyseth, 216 U. S. 57 j, 54 L. Ed. 619, 30 S. Ct. 420. 195-54. Authority to withdraw. — The secretary of the interior had no authority to withdraw from settlement lands within the indemnity limits of the Hastings & Dakota Railway land grant of July 4, 1866, in advance of a selection approved by him, based upon ascertained losses in the place limits. Judgment (1909) 119 N. W. 1135, 107 Minn. 568, affirmed. Osborn f. Froy- seth, 216 U. S. 571, 54 L. Ed. 619, 30 S. Ct. 420. 1024 \^ol. X. PUBLIC LANDS. 195-205 nite location, and such right will be protected as against the subsequent selec- tion of the land by the railway company. ''■*'* Lawful Withdrawal. — Lands lawfully embraced in a list of indemnity selections filed by the Northern Pacific Railroad Company with the land de- l^artment, and subsequently approved by the secretary of the interior, were not subject to entry or purchase under the federal land laws during the internii between the date of filing and the date of such approval. ^-^'^ (n) Conflicting Grants and Claims — bb. Railroad Grants Conflicting ivith Private Entries. — See note 60. (r) Rights of Purchasers under Railroad Land Grants — bb. Recovery of Purchase Price from Railroad. — See note 98. (3) Grant for Right of U\i\\ Station Purposes, etc. — (c) Lands Subject and Location of Line — aa. Lands Subject — (bb) Lands Subject to Existing Claims. — The grant to the Union Pacific Railroad Company by the Act of July 3, 1866, of a right of way through the "public lands," did not give that com- pany the right to run its road through lands which, at the time of the passage of that act, were in the actual occupation of an entryman under the homestead laws.^^ 195-54a. Unauthorized withdrawal. — Brandon z: Ard. 211 U. S. 11, 53 L. Ed. 68, 29 S. Ct. 1. The withdrawal from sale, pre-emption, or settlement of lands within the indem- nity limits of the Railway Land Grant Act of March 3, 1863 (12 Stat. 772, c. 98). which withdrawal was nnanthorized, because the road had not then l^een definitely located, does not prevent a homestead claim or right from attaching to such land before definite location, and such right will be protected as against the subsequent se- lection of the land by the railway com- pany. Judgment (1906) 87 P. 366, 74 Kan. 424, 118 Am. St. Rep. 321, affirmed. Bran- don V. Ard, 211 U. S. 11, 53 L. Ed. 68, 29 S. Ct. 1. 195-54b. Lawful withdrawal. — Weyer- haeuser V. Hoyt, 219 U. S. 380, 55 L. Ed. 258, 31 S. Ct. 300, reversing decree Hoyt V. Weyerhaeuser (1908) 161 F. 324, 88 C. C. A. 404; Campbell t'. Weyerhaeuser, 219 U. S. 424, 55 L. Ed. 279. 31 S. Ct. 321, af- firming decree (1908) 161 F. 332, 88 C C. A. 412; Northern Pac. R. Co. v. Wass, 219 U. S. 426, 55 L. Ed. 280, 31 S. Ct. 321, reversing judgment (1908) 117 N. W. 1126, 105 Minn. 525. 197-60. Railroad grants conflicting with private entry. — Lands within the indem- nity limits of the land grant to the Northern Pacific Railroad Company could not be claimed under the provision of Act July 1, 1898, c. 546, 30 Stat. 620, en- acted to settle the disputes arising out of conflicting rulings of the Land De- partment with reference to the eastern terminus of the railroad as affecting its land grant, by a person relying upon an alleged purchase under tlie timl)er and stone act, where, prior to January 1, 1898, nothing more had been done than to file application for the land. Hoyt v. Weyer- haeuser, 161 Fed. 324, 88 C. C. 404; Wey- erhaeuser V. Hoyt, 219 U. S. 380, 424, 55 L. Ed. 258, 31 S. Ct. 300. 204-98. Recovery of purchase price from railroad. — A railway company will not be required to account to the United States in equity for the proceeds of the sale of lands patented to the company as within the place limits of the railway land grant made by Act May 12, 1864, c. 84, 13 Stat. 72, on the theory that what was done under or in execution of the Swamp Land Act (Act Sept. 28, 1850, c. 84, 9 Stat. 519 [U. S. Comp. St. 1901, p. 1586]) prior to the filing of the map of definite loca- tion, ooerated to except su'^h land-- +roM the railway land grant as being previously reserved, where to grant such relief would be to disregard a subsequent decision of the commissioner of the general land of- fice, made after full notice and hearing, that such lands were not in fact swamp or overflowed, and that neither the state nor any of its counties claiming them as such were entitled to said lands, which decision has never been appealed from, and still remains, after nearly 30 years, un- reversed and unmodified. United States z'. Chicago, etc., R. Co., 218 U. S. 233, 54 L Ed. 1015, 31 S. Ct. 7, affirming decree (1908) 160 F. 818, 87 C. C. A. 592. 205-9a. Land held under homestead en- try.— Union Pac. R. Co. z: Harris, 215 U. S. 386, 54 L. Ed. 246, 30 S. Ct. 138. "As stated in Newhall v. Sanger, 92 U. S. 761, 763, 23 L- Ed. 769: 'The words "pulilic lands'' are habitually used in our legislation to descril^e such as are sub- ject to sale or other disposal under gen- eral laws.' " Union Pac. R. Co. v. Har- ris, 215 U. S. 386, 54 L. Ed. 246, 30 S. Ct. 138. See, also. Barker z: Harvey, 181 U. S. 481, 490, 45 L. Ed. 963, 21 S. Ct. 690; Minnesota z'. Hitchcock, 185 U. S. 373, 391, 46 L. Ed. 954, 22 S. Ct. 650. 12 U S Enc— 65 1025 206-208 PUBLIC LANDS. Vol. X. (d) Vesting of Title and Estate Acquired — aa. J^esting of Title. — Under Special Statute. — See note 13. General Act of 1875. — See note 17. (h) Forfeiture, Abandonment and Repeal. — See note 29. (i) Conflicting Claims and Superiority. — When the railroad adopts a route definitely and then causes a map of such a route to be filed in the land office of the district, in duplicate, and then filed with the secretary of the interior, a right is thereby initiated which, until disposed of, rightly precludes the crea- tion of a later right, and gives to the company, as prior in time, priority in right.^^^ The initiatory act, to which the final act of approval relates, is the filing with the secretary of the interior of the map of definite location. The mere surveying and staking of a route is the tentative act of the railroad. It might at will select a different route and move its stakes.^^^ 206-13. Under special statute. — "True, as held in Railroad Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578; Bybee tj. Ore- gon, etc., R. Co., 139 U. S. 663, 679. 35 L. Ed. 305, 11 S. Ct. 641; Northern Pac. R. Co. V. Hasse, 197 U. S. 9, 10, 49 h. Ed. 642. 25 vS. Ct. 305, the grant of the right of way is absolute, and taking efifect as of the date of the grant. But that date must be found in an act prescribing the finally adopted route." Union Pac. R. Co. v. Harris, 215 U. S. 386, 54 L. Ed. 246, 30 S. Ct. 138. 207-17. General Grant of 1875.— No rights under Act March 3, 1875, c. 152, 18 Stat. 482 [U. S. Comp. St. 1901, p. 1568], granting rights of way to railroads, can be initiated before a profile map of the road has been filed in the local land office and approved by the secretary of the in- terior — unless actual construction is sooner begun — in view of the provisions of section 4 of that act, that any railroad company desiring to secure the benefit of the statute shall, within a definite time after location, file such profile map with the register of the local land office, that upon approval thereof by tiie secretary of the interior the same shall be noted upon the plats in such office, and that "thereafter" all such lands over which such right of way shall pass shall be dis- posed of subject to such right of way. Judgment, Doughty v. Minneapolis, St. P. & S. S. M. Ry. Co. (N. D. 1906), 107 N. W. 971. affirmed. Minneapolis, etc., R. Co. V. Doughty, 208 U. S. 251, 52 L. Ed. 474, 28 S. Ct. 291. "A right of way is granted, but to se- cure it three things are necessary: (l) Location of the road; (2) filing a profile of it in the local land office; and (3) the approval thereof by the secretary of the interior, to be noted upon the plats in the local office. It is after these things are done that the statute fixes the right of the railroad and subjects the disposition of the land, under the land laws, to that right." Minneapolis, etc., R. Co. f. Doughty, 208 U. S. 251, 52 L. Ed. 474, 28 S. Ct. 291. 208-29. Forfeiture and revocation of grant. — A breach of the conditions upon wliich a railway right of way was granted in pra?senti by Act June 4, 1898, c. 377, 30 Stat. 430, viz., that the railway company shall commence grading v.'ithin six months after the approval of its map of definite location or its location shall be void, and that the right therein granted shall be forfeited unless the company shall construct 25 iniles of road within two years after the passage of the act, does not of itself work a forfeiture, but. such conditions being conditions subse- quent, there can be no forfeiture without some appropriate judicial or legislative action. Spokane, etc., R. Co. v. Washing- ton, etc.. R. Co., 219 U. S. 166, 55 L. Ed. 159. 31 S. Ct. 182, affirming decree (1908), 95 P. 64, 49 Wash. 280. 208-30a. When rights initiated. — Stal- ker r. Oregon, etc., R. Co., 225 U. S. 142, 56 L. Ed. 1027, 32 S. Ct. 636. "Any construction of the 4th section of the Act of 1875 which would permit rights initiated while the secretary of the inte- rior was considering the approval of a map of location of a right of way over public lands, or a plat of survey of depot grounds, to prevail over rights resulting from the prior commencement of pro- ceedings for the acquisition of title, would be in confiict with the settled practice of the land department and the repeated rul- ings of this court under other acts." Stalker :■. Oregon, etc., R. Co., 225 U. S. 142, 56 L. Ed. 1027, 32 S. Ct. 636, citing Sheplev 7,'. Cowan, 91 U. S. 330, 23 L. Ed. 424; Wcverhaeuser v. Hoyt, 219 U. S. 380, 55 L. Ed'. 258. 31 S. Ct. 300. 208-30b. Relation back of approval. — Stalker v. Oregon, etc.. R. Co., 225 U. S. 142, 56 L. Ed. 1027, 32 S. Ct. 636. The approval by the secretary of the interior of a plat of station grounds, filed conformably to the Act of March 3, 1975 (18 Stat, at L. 482, chap. 152, U. S. Comp. Stat. 1901, p. 1568), § 4, by a rail- way company seeking to secure, in ad- vance of actual construction, the bene- fits of the grant made by that act of 1026 Vol. X. PUBLIC LANDS. 217-228 h. School and University Grants and Resen'ations — (3) Lands Included and Sithject to Selection — (c) Mineral Lands. — Only such saline lands as should be selected as a part of the other lands granted and not specifically located were granted to the state of Utah by the provisions of the enabling act (Act July 16, 1894, c. 138, § 8, 28 Stat. 109), granting to the state for univer- sity purposes public lands to the extent of two townships in quantity, and in addition 110,000 acres, to be selected and located as therein provided, "and in- cluding all the saline lands in said state. "^^^ (11) Sale and Lease of School Land — (c) Disposition of Proceeds. — No particular institutions are entitled to the grants and appropriations made re- spectively by Act of July 2, 1862, granting lands or land scrip to the several states for the endowment, support, and maintenance of at least one college^ where the leading object shall be to teach agriculture and the mechanic arts, and by Act of Aug. 30. 1890, appropriating annually certain sums to each state and territory for the more complete endowment and maintenance of such col- leges ; but the states take the property, charged with the duty to devote it to the purpose named."^^ (e) Right to Purchase — Purpose of Purchase. — Applications to the states of California and Oregon to purchase land acquired by those states from the United States for the benefit of the public schools are fraudulent, if the applicants do not intend to purchase the land for their own benefit and have made previous contracts or agreements to sell the land."'' i. Szuamp and Overfozved Land Grants — (5) Identification, Survey and Se- lection — (a) Identification— (hh) By Whom Made and Sufficiency of. — See note 25. k. Oregon Donation Acts. — See note 51. grounds adjacent to its right of way, re- lates liack to the date of filing, so as to cut off any rights therein founded on a pre-emption claim filed pending such ap- proval, and subsequently patented, al- though the register of the local land of- fice may have failed, after a copy of the approved plat had been submitted to him, to mark the proper township plat and tract books, as required by regulations of the land department, so as to show the station land selected. vStalker v. Oregon, etc., R. Co., 225 U. S. 142, 56 L. Ed. 1027, 32 S. Ct. 636. 217-81a. Saline lands.— Montello Salt Co. V. Utah, 321 U. S. 452, 55 L. Ed. 810, 31 S. Ct. 706, reversing 98 P. 540, 34 Utah 458. 220-7a. Disposition of proceeds — Ben- eficiaries. — Wyoming Agriculture College i: Irvine. 206 U. S. 278, 51 L. Ed. 1063, 27 S. Ct. 613, affirming 84 P. 90, 14 Wyom- ing 318. 220-7b. Right to purchase — Purpose of purchase. — Hyde v. United States, 35 App. D. C. 451, writ of certiorari granted. Hyde r. United States. 218 U. S. 681, 54 L. Ed. 1207, 31 S. Ct. 228. 222-25. By whom made and sufficiency of. — "Referring to the 2d section of that act, Mr. Justice Miller, speaking for the court in French v. Fyan, 93 U. S. 169, 23 L. Ed. 812, said: 'It was under the power conferred by this section that the patent was issued under which defendant holds the land. We are of the opinion that this section devolved upon the secretary, as the head of the department which admin- istered the affairs of the public lands, the duty, and conferred on him the power, of determining what lands were of the de- scription granted by that act, and made his office the tribunal whose decision on that subject was to be controlling.' To the same effect, on this point, are Ehr- hardt i\ Hogaboom, 115 U. S. 67, 68, 29 L. Ed. 346, 5 S. Ct. 1157, and Rogers Loco- motive Mach. Works v. American Emi- grant Co., 164 U. S. 559, 571, 41 L. Ed. 552. 17 S. Ct. 188. In the latter case the court said: 'The identification of lands embraced by the Swamp Land Act was therefore necessary before the state could claim a patent or exercise absolute con- trol of them.' " United States v. Chicago, etc., R. Co., 218 U. S. 233, 54 L. Ed. 1015. 31 S. Ct. 7. 228-51, Oregon Donation Act s. — A claimant under the Oregon Donation Act of September 27, 1850 (9 Stat. 496. c. 76), who had not made final proof under that act, but had occupied the land for more than four years, could make a valid deed of his rights after the Amendatory .Act (Act July 17. 1854 [10 Stat. 305. c. 84], § 2), by which the proviso in section 4 of the earlier act, making void contracts for the sale of land before patent, was re- pealed, "provided that no sale shall be deemed valid unless the vendor shall have 1027 230-245 PUBLIC LANDS. Vol. X. p. Reservations — (3) Forest Reserves. — Congress, in the exercise of its con- trol of the property of the United States, under U. S. Const, art. 4, § 3, could constitutionally enact the Act of March 3, 1891, under which public forest reservations may be established on the public domain without the consent of the state where the land lies. •■5'*'' Lien Lands. — And the land department had the power to adopt reasonable rules and regulations for the administration of the Act of June 4, 1897, au- thorizing the selection of public lands in lieu of lands relinquished in a forest reserve.^'^'' q. Grants for Parks. — The secretary of the interior can not make the exer- cise by an owner and lessee of lands within the Yosemite National Park of his right to pasture his cattle upon such lands, and to use the toll roads leading thereto, conditional upon his compliance with certain rules and regulations prescribed by the secretary for the government of the park, as to marking and defining the boundaries, or obtaining the written permission of the superin- tendent.^^'^ 4. The Land Departme;nt — c. Land Department Subject to JVill of Con- gress. — See note 89. h. Reviezv, Cancellation and Correction in Land Department — (3) Reviezv of Decision of Predecessor. — See note 41. i. Operation and Effect of Decisions of Land Department — (1) Conclusive- ness — Direct and Collateral Attack — (b) Questions Concluded or Reviezmble — bb. Construction of Lazv. — See note 50. resided four years upon the land." Judg- ment (1907)., 91 P. 15, 46 Wash. 585, af- firmed. Sylvester v. Washington, 315 U. S. 80, 54 L. Ed. 101, .30 S. Ct. 25. 230-58a. Power of congress to create forest reserve. — Light r. . United States, 220 U. S. 523, 55 L.^Ed. 570, 31 S. Ct. 485. 230-58b. Lien lands. — Roughton r. Knight, 219 U. S. 537. 55 L. Ed. 326, 31 S. Ct. 297. Duty to make selection. — An owner of patented land in a forest reserve whose deed to the United States, made in con- templation of an exchange under Act June 4, 1897, 30 Stat. 36 (U. S. Comp. St. 1901, p. 1541), was returned because not accompanied by a selection of lien lands, as required by the regulations and prac- tice of the land department, had no vested right to the exchange which would be paved bv the exception in the repealing- act of Marcli 3, 1905 (chapter 1495, 33 Stat. 1264 [U. S. Comp. St. Supp. 1909, p. 581]), in favor of selections theretofore made, and of existing contracts with the secretary of the interior. Roughton z'. Knight, 219 U. S. 537, 55 L. Ed. 326, 31 S. Ct. 297, affirming decree (1909), 103 P. 844, 156 Cal. 123. 231-59a. Power of secretary of interior over owner within park limits. — Curtin r. Benson, 222 U. S. 78, 56 L. Ed. 102, 32 S. Ct. 31, reversing 158 Fed. 383. 236-89. In regard to claims under Tim-" her and Stone Act. — The authority of the commissioner of the general land office under Timber and Stone Act June 3, 1878, C. 151, § 3, 20 Stat. 89 [U. S. Comp. St. 1901, p. 1545], to prescribe regulations to carry out the provisions of that act, does not embrace the power to require an ap- plicant to make oath on final hearing of his bona fides and of the absence of con- tract or agreement in respect to the title, which congress has in that act, by express intendment, excluded from the require- ments to be observed on such final hear- ing. Williamson r. United States, 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 163. The concluding portion of § 3 of the Timber and Stone Act provides that "ef- fect shall be given to the foregoing pro- visions of this act by regulations to be prescribed by the commissioner of the general land office.'' But this power must, in the nature of things, be con- strued as authorizing the coinmissioner of the general land ofiice to adopt rules and regulations for the enforcement of the statute, and can not be held to have authorized him, by such exercise of power, to virtually adopt rules and reg- ulations destructive of rights which con- gress had conferred. Williamson v. United States. 207 U. S. 425, 52 L. Ed. 278, 28 S. Ct. 163. 243-41. Review of decisions of prede- cessor. — The secretary of the interior, having complete jurisdiction of a contest before the land department, is not bound by prior findings of fact made by his predecessor. Decree (1907). 88 P. 1054, 18 Okl. 160, affirmed. Greenameyer 7'. Coate, 212 U. S. 434, 53 L. Ed. 587, 29 S. Ct. 345. 245-50. Construction of law. — The fed- eral supreme court will follow the con- tintious construction of the land depart- 1028 Vol. X. PUBLIC LAXDS. 245-250 cc. Decisions upon Questions of Fact. — See note 51. dd. Mixed Question of Law and Fact. — See note 56. (d) Direct Attack — bb. At Lazv or in Equity. — See note 77. ment that the special provision for Lou- isiana in the Swamp Land Grant Act of March 2, 1849 (9 Stat, at L. 352, chap. 87), that title shall vest in the state on ap- proval of a list of lands hj- iie '"-c .ei: v of the interior, was not affected by the general clause of the Act of September 28, 1850 (9 Stat, at L. 519, chap. 84), granting swamp lands to Arkansas, to vest only upon the issuance of a patent, that the provisions of this act be ex- tended to and their benefits be conferred upon each of the other states in which such swamp and overflowed lands may be situated. Louisiana v. Garfield, 211 U. S. 70, 53 L. Ed. 92, 29 S. Ct. 31. See post, STATUTES. 245-51. Decision upon question of fact. — Tlie conclusion as to ultimate facts fi- nally reached by the land department must be accepted by the courts, although differing from the conception of such facts entertained by the department at previous stages of the controversy. De- cree (1907), 88 P. 1054, 18 Okl. 160, af- firmed. Greenameyer z'. Coate. 212 U. S. 434, 53 L. Ed. 587, 29 S. Ct. 345. The courts must assume that the facts which, under the joint resolution of May 31, 1870, Xo. 67, 16 Stat. 378, establishing the second indemnity limits of the land grant to the Northern Pacific Railroad Company, must appear in order to enti- tle that company to the lands selected as indemnit)' lands, were shown to the sat- isfaction of the secretary of the interior, where he has approved the company's se- lections. Weyerhaeuser v. Hoyt, 219 U. S. 380, 53 L. Ed. 258, 31 S. Ct. 300. re- versing decree Hoyt v. Weyerhaeuser (1908). 161 F. 324. ''The decision of the land department was not rested solely upon the fact that White's former application was filed a few hours before that of the trustee for the occupants of the town site, but rather chiefly up6n the priority of the former's equitable rights. So far as such de- cision involves questions of fact, it is conclusive upon the courts." Whitcomb z: White. 214 U. S. 15. 53 L. Ed. 889, 29 S. Ct. 599, citing Johnson t'. Towsley, 13 Wall. 72. 86. 20 L. Ed. 485; Shepley v. Cowan. 91 U. S. 330, 340, 23 L. Ed. 424: Marquez r. Frisbie, 101 U. S. 473, 476, 25 L. Ed. 800; Quinby v. Conlan. 104 U. S. 425, 426, 26 L. Ed. 800; Burfenning z: Chicago, etc., R. Co.. 163 U. S. 321. 323. 41 L. Ed. 175, 16 S. Ct. 1018; De Cambra v. Rogers, 189 U. S. 119, 120. 47 L. Ed. 734. 23 S. Ct. 519. 246-56. Mixed question of law and fact. — ''And this rule is applied in cases where there is a mixed question of law and fact, unless the court is able to so separate the question as to see clearly what and where the mistake of law is. As said by Air. Justice Miller in Marquez I'. Frisbie, supra, p. 476: 'This means, and it is a sound principle, that where there is a mixed question of law and of fact, and the court can not so separate it as to see clearly where the mistake of law is. the decision of the tribunal to which the law has confided the matter is conclusive.' "' Whitcomb z\ White, 214 U. S. 15, 53 L. Ed. 889, 29 S. Ct. 599, citing Quinby z\ Conlan, 104 U. S. 425. 426. 26 L. Ed. 800. The land department's finding in favor of a homestead entry against persons claiming to have been occupants of the premises as a town site, which rests, not solely on the fact that application for such entry was filed a few hours before that of the trustee for the town site oc- cupants, but rather chiefly on priority of the homesteader's equitable rights, must be held conclusive by the supreme court, especially where reinforced by judgments of the state courts, u'nless there is the clearest and most convincing evidence of mistake or injustice. Judg- ment (1907), White r. Whitcomb. 90 P. 1080. 13 Idaho, 490, affirmed. Whitcomb z: White, 214 U. S. 15, 53 L. Ed. 889. 29 S. Ct. 599. 250-77. Direct attack — At law as in equity. — "In Re Eml)len. 161 U. S. 52. 56, 40 L. Ed. 613, 16 S. Ct. 487, Mr. Justice Gray thus stated the law: 'After the patent has once been issued, the original contest is no longer within the jurisdic- tion of the land department. The patent conveys the legal title to the patentee, and can not be revoked or set aside, ex- cept upon judicial proceedings instituted in behalf of the United States. The only remedy of Emblen is by bill in equity to charge Weed with a trust in his favor. All this is clearly settled bj' previous de- cisions of this court, including some of those on which the petitioner most re- lies." Frellsen & Co. z: Crandell. 217 U. S. 71, 54 L. Ed. 670. 30 S. Ct. 490. citing Johnson :■. Towsley. 13 Wall. 72. 20 L. Ed. 485; Moore z: Robbins. 96 U. S. 530, 24 L. Ed. 848; Marquez z\ Frisbie, 101 U. S. 473, 25 L. Ed. 800; Smelting Co. z: Kemp. 104 U. S. 636. 26 L. Ed. 875; Steel :■. Smelting Co.. 106 U. S. 447, 27 L. Ed. 226. 1 S. Ct. 389; Monroe Cattle Co. v. Becker. 147 U. S. 47, 37 L. Ed. 72, 13 S. Ct. 217; Turner z: Sawyer, 150 U. S. 578, 586. 37 L. Ed. 1189. 14 S. Ct. 192. See, also, McMichael Z'. Murphy. 197 U. S. 304. 311. 49 L. Ed. 766. 25 S. Ct. 460. "The rule in respect to the administra- 1029 256-258 PUBLIC LANDS. Vol. X. cc. Suits by Government — (ii) Pleading — aaa. Sufficiency and Certainty of Allegations. — See note 9. (jj) Defenses — bbb. Laches and Limitations. — See ante, Laches, p. 818; Limitation of Actions and Adverse Possession, p. 828. (kk) Evidence — bbb. Admissibility. — Statement Made by Entryman. — The admission in evidence in a suit in equity to cancel a patent for fraud in procuring and commuting a homestead entry of a statement made by the entry- man to a government agent, and made the basis of the latter's report to the land office, is not prejudicial error, where the attention of the entryman, when testi- fying, was drawn to such statement, and he himself testified that it was made at his home, and was signed by him, and the facts were testified to by the agent to whom the statement was made.^^^ Purchase of Other Claims by Grantee. — Prejudicial error is not com- mitted in admitting in evidence, in a suit in equity to cancel a patent and the deeds founded thereon, for the fraud of the homestead entryman, testimony show- ing the purchase of other homestead claims by the grantee, because it was not accompanied by evidence showing that such other transactions were false and fraudulent, since it will be presumed that, under such circumstances, the court gave to the testimony admitted no value or probative strength. 22b ccc. Weight and Sufficiency. — See note 23. tion of the public domain of the United States is well settled. In Doolan v. Carr, 125 U. S. 618, 624, 31 L. Ed. 844, 8 S. Ct. 1228» Mr. Justice Miller said: 'There is no question as to the principle that where the officers of the government have is- sued a patent in due form of law, which, on its face, is sufficient to convey the title to the land described in it, such patent is to be treated as valid in ac- tions at law, as distinguished from suits in equity, subject, however, at all times, to the inquiry whether such officers had the lawful authority to make a convey- ance of the title. But if those officers acted without authority, if the land which they purported to convey had never been within their control, or had 1)een withdrawn from that control at the time they undertook to exercise such au- thority, then their act was void, void for want of power in them to act on the sub- ject matter of the patent, not merely voidable; in which latter case, if the cir- cumstances justified such a decree, a direct proceeding, with proper averments and evidence, would be required to es- tablish that it was voidable, and should therefore be avoided.' " Frellsen & Co. V. Crandell, 217 U. S. 71, 54 L. Ed. 670, 30 S. Ct. 490. See, also. Hastings, etc., R. Co. V. Whitney. 132 U. S. 357, 363, 33 L. Ed. 363, 10 S. Ct. 112; Kansas Pac. R. Co. V. Dunmeyer, 113 U. S. 629, 28 L. Ed. 1122, 5 S. Ct. 566. 256-9. Sufficiency and certainty of pleading.— A bill by the United States to cancel a patent sufficiently alleges the facts upon which are based the charge of fraud, in procuring and commuting the homestead entry on which the patent was founded, where it avers that the patentee secured his patent by deceiving the land office by false testimony as to the extent of his improvements, cultivation, and residence. McCaskill Co. v. United States, 216 U. S. 504, 54 L. Ed. 590, 30 S. Ct. 386. 258-22a. Admissibility — Statement made by entryman. — McCaskill Co. v. United States, 216 U. S. 504, 54 L. Ed. 590, 30 S. Ct. 386. 258-22b. Purchase of other claims by grantee. — McCaskill Co. v. United States, 216 U. S. 504, 54 L. Ed. 590, 30 S. Ct. 386. 258-23. Weight and sufficiency.— Con- current findings of the two lower courts that a patentee deceived the land office by false testimony as to the extent of his improvements, cultivation, and residence, and secured his patent by that deception, are sustained by the evidence, where his statement and proof on final hearing were that his improvement consisted of a habitable dwelling and a garden culti- vated two seasons, and that, after mak- ing his settlement, he was absent only two or three times on account of his health, the longest absence being not over three months, and the evidence in the case at bar shows that the house was unfit for habitation, that the patentee never moved his family there, that he did not stay there more than one night in a week, and that he had admitted to a government agent that he had not lived on the homestead entry, and thought he was going to lose it. McCaskill Co. v. United States, 216 U. S. 504, 54 L. Ed. 590, 30 S. Ct. 386. 1030 \'ol. X. PUBLIC LANDS. 261-267 dd. Suits by Private Individuals — (bb) Proper Relief — aaa. Establishing of Trust. — See note 33. (cc) Rights of Parties and Grounds for Relief — aaa. Interest of Complain- ant. — See note 37. bbb. Grounds for Relief — (ccc) Fraud and False Testimony — aaaa. In Gen- eral. — See note 46. Xewly-discovered evidence on the issue of fraud made before the Land Department, which complainant had abundance of time and opportunity to discover and present, is not ground for rehef in equity from its tinal action, where no fact is alleged that anything was done to prevent com- plainant from discovering or presenting such evidence except the general al- legation that cunning and deceit were practiced on him.^'^^ 5. JuRiSDicTiox OF AXD ReviEw BY CouRTs — a. Before Patent Issued. — It can not interfere with the land department in the administration of the public lands while the same are subject to disposition under acts of congress intrust- ing such matters to that branch of the government/^-^^ But this rule does not 261-33. Establishing of trust.— "The principle is well settled that where 'one party has acquired the legal title to prop- erty to which another has the better right, a court of equity will convert him into a trustee of the true owner and com- pel him to convey the legal title.' " Prosser v. Finn, 208 U. S. 67, 52 L. Ed. 392, 28 S. Ct. 225, citing Stark v. Starrs, e Wall. 402, 419, 18 L. Ed. 925; Silver v. Ladd, 7 Wall. 219, 19 L. Ed. 138; Cor- nelius V. Kessel, 128 U. S. 456, 461, 32 L. Ed. 482, 9 S. Ct. 122; Bernier v. Bernier, 147 U. S. 242, 37 L. Ed. 152, 13 S. Ct. 244; In re Emblen, 161 U. S. 52, 40 L. Ed. 613, 16 S. Ct. 487. The waiver of a preferential right of entry under a decision in a contest in the land department, filed before the pat- ent was finally issued, coupled with a delay of four years in attempting to en- force such preferential right, defeats any right to charge the patentee and his grantees with a resulting trust. Decree (1904), 79 P. 265, 15 Okl. 12. affirmed. Holt V. :Murphy, 207 U. S. 407. 52 L. Ed. 271, 28 S. Ct. 212. See, generallv, post, TRUSTS AND TRUSTEES. 261-37. Interest of complainant.^ Where the object of the bill is to seek to charge the defendants as trustees of the land for complainant, plainly, proof that their grantor never acquired title to the land would not establish a right to it in the complainant. Weverhaeuser v. Hoyt, 219 U. S. 380, 55 L. Ed. 258. 31 S. Ct. 300. The failure of the Northern Pacific Railway Company to acquire title to lands lawfully selected by the Northern Pacific Railroad Company as within the second indemnity limits of its land grant will not avail persons claiming such lands by virtue of an alleged purchase under the Timber and Stone Act, who are seek- ing to charge as trustees the grantees of the railway company. Weyerhaeuser i\ Hoyt. 219 U. S. 380, 55 L. Ed. 25S, 31 S. Ct. 300, reversing decree in Hoyt v. Weyerhaeuser (1908), 161 F. 324. 88 C. C. A. 404; Campbell v. Weyerhaeuser, 219 U. S. 424, 55 L. Ed. 279, 31 S. Ct. 321, af- firming decree (1908), 161 F. 332, 88 C. C. A. 412; Northern Pac. R. Co. v. Wass, 219 U. S. 426, 55 L. Ed. 280. 31 S. Ct. 321, reversing judgment (1908), 117 N. W. 1126, 105 Minn. 525. 263-46. Fraud and false testimony. — "In Vance v. Burbank, 101 U. S. 514, 519, 25 L. Ed. 929, this court said, expressing the principle that is to be applied in cases like that at bar; 'It has also been settled that the fraud in respect to which relief will be granted in this class of cases must be such as has been practiced on the unsuccessful party, and prevented him from exhibiting his case fully to the department, so that it may properly be said there has never been a decision in a real contest about the subject matter of inquiry. False testimony or forged docu- ments even are not enough, if the dis- puted matter has actually been presented to or considered by the appropriate tribunal.' " Greenameyer v. Coate, 212 U. S. 434. 53 L. Ed. 587. 29 S. Ct. 345, citing United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Marquez v. Frisbie, 101 U. S. 473. 25 L. Ed. 800. 264-47a. Newly-discovered evidence — Laches. — Greenameyer v. Coate, 212 U. S. 434, 53 L. Ed. 587. 29 S. Ct. 345. "The case therefore falls within the doctrine of Vance t. Burbank, 101 U. S. 514, 519, 25 L. Ed. 929; De Cambra v. Rogers. 189 U. S. 119, 47 L. Ed. 734, 33 S. Ct. 519; Estes v. Timmons, 199 U. S. 391, 50 L. Ed. 241, 26 S. Ct. 85; United States V. Throckmorton, 98 U. S. 61, 65, 25 L. Ed. 93: Friese v. Hummel, 26 Or. 152, 46 Am. St. Rep. 610, 37 Pac. 458." Greenameyer v. Coate. 212 U. S. 434. 53 L. Ed. 587, 29 S. Ct. 345. 267-63a. Control of land department. —Garfield z: Goldsby, 211 U. S. P40, 53 L. Ed. 168. 29 S. Ct. 62. See ante, MANDAMUS, p. 838; post. PUBLIC OF- FICERS. "We have no disposition to question 1031 267-291 PUBLIC LANDS. Vol. X. apply to the right to control, by judicial action, an alleged unauthorized act of the secretary of the interior for which he is given no authority by any act of congress. ^•'^^ III. Grants or Claims Emanating from or Arising under Former Sov- ereign. C. Spanish, French and Mexican Grants — 2. Acquisition of Right AND Title under Former Sovereigns — c. Authority to Make and Manner of Making — (1) Lazvs Controlling — (a) In General. — The transference of na- tional sovereignty, and not the disposal of public land as property, was what was comprehended by the declaration of the Spanish constitution that "to alienate, cede, or exchange any part of Spanish territory," the king required "the au- thority of a special law."'^'^^ A grant of tide lands by the king of Spain for •purposes of reclamation and improvement was not forbidden by Particla 3, tit. 28, laws 3 and 4, which affirm that the sea and its shore are among the things which belong in common to all men.^-^'' (4) Power of States and Territories. — The government general of the Philippines must be deemed to have had the authority to make a grant of tide lands for purposes of reclamation and improvement, in view of the uni- form construction given by the successive governors general to the provisions of the Laws of the Indies, book 2, tit. 15. law 11, defining the powers of that official, and acc[uiesced in by the king of Spain, as empowering him to do what- ever the king could do were he present, except where otherwise specially pro- vided, and of the failure of the Spanish authorities for thirty-nine years to call the grant into question, meanwhile imposing taxes upon the land as private property.^^'^ d. Construction, Operation and Effect — (2) Conditions — (f) Effect of Xon- conipliance.—See note 20. Conditions Subsequent. — See note 23. those cases in which this court has held 221 U. S. 623, 55 L. Ed. 884, 31 S. Ct. that the courts may not interfere with 664. the land department in the administra- 291-20. Failure to comply with condi- tion of the public lands while the same tions. — A grant of public land in the are subject to disposition under acts of Philippine Islands, made by subordinate congress intrusting such matters to that Spanish officials, receives no support branch of the government. Some of these from the decree of tlie Spanish Cortes of cases are cited in the late case of United January 4, 1813, where the conditions of States V. Detroit, etc.. Lumber Co., 200 the decree were not fulfilled. Tiglao v. U. S. 321, 50 L. Ed. 499, 26 S. Ct. 282, Insular Government, 215 U. S. 410, 54 L. and the principle to be gathered from Ed. 257, 30 S. Ct. 129. them is, that while the land is under con- 291-23. Forfeiture for failure to per- trol of the land department prior to the form conditions subsequent. — A grant of issue of patent, the court will not inter- the "'possession and ownership" of tide fere with such departmental administra- lands in contemplation of reclamation tion. This vvas held as late as the case can not be deemed to have been made of Love V. Flahive, 205 U. S. 195, 198, upon condition, so as to defeat the title 51 L. Ed. 768, 27 S. Ct. 486." Garfield v. thereunder because part of the land has Goldsby, 211 U. S. 249, 53 L. Ed. 168, 29 not been reclaimed, where the grant S. Ct. 62. fixes no time for beginning or complet- 267-63b. Unauthorized acts. — Garfield '"? the work, and recites that it is made V. Goldsby, 211 U. S. 249, 53 L. Ed. 168, hi consideration, inter alia, of the official 29 S. Ct. 62. ' ^nd industrial merits of the grantee, and 270-83a. Construction of Spanish law. '"'^ °^^'' '''I Protection stated in a prior — Costas V. Insular Government. 221 U decree, and where, during many years, S. 623, 625, 55 L. Ed. 884. 31 S. Ct 664 ' *r- '"^P^'^sentatives of Spam and those ntn Qou r^ ^- ^-j i j ^ clauiima: under the grant practically in- 270-83b. Grantmg tide lands -Costas terpreted the same as leaving the grantee t' ^T^ls ^^''T''r^h! ^^^- ^^ ^'■^e to efifect the reclamation at such L,. £.a. 884, 31 b. Lt. 664. ^-^^^^^ ^g ^^ j^j^ might seem practical and 273-99a. Government general of Philip- advantageous. Costas r. Insular Gov- pines. — Costas v. Insular Government, ernment, 221 U. S. 623, 55 L. Ed. 884, 31 S. Ct. 664. 1032 Vol. X. PUBLIC LAXDS. 299-306 3. Recogxitiox, \'alidatiox and Coxfirmatiox — a. /;; General. — Methods Adopted in Philippines. — As to the effect of the treaty of cession, whereby the Philippine Islands became a part of the United States, and as to the methods of confirming land titles and claim on such islands see note 69a. c. Legislatk'e Confirmation and Completion of Claims — (1) Necessity for Confirmation and Ascertainment — (a) Claims Recognized by Treaty — Perfect and Imperfect. — See note 8. 299-69a. Methods adopted in the Philip- pine Islands. — Exception of the province of Benguet from operation of the Phihp- pine Commissions Act 1903, Xo. 926, re- lating to registration of land titles, does not apply to one claiming present owner- ship of land therein; but he is entitled to registration, if his claim can be main- tained, under the Commission's Act 1902, Xo. 406, establishing a court for registra- tion, with jurisdiction "throughout the Philippine Archipelago,'' and authoriz- ing, in general terms, applications by claimants of the legal estate in fee simple. Carino z: Insular Government, 212 l^. S. 449. 53 L. Ed. 594, 29 S. Ct. 334. "By the Organic Act of July 1, 1902, chap. 1369. § 12, 32 Stat, at L. 691, all the property and rights acquired there by the United States are to be administered ■for the benefit of the inhabitants thereof.' It is reasonable to suppose that the at- titude thus assumed by the United States witli regard to what was unques- tionably its own is also its attitude in deciding what it will claim of its own. The same statute made a bill of rights. embodying the safeguards of the con- stitution, and, like the constitution, ex- tends those safeguards to all." Carino z\ Insular Government. 212 U. S. 449, 53 L. Ed. 594. 29 S. Ct. 334. "In the light of the declaration that we have quoted from § 12, it is hard to be- lieve that the United States was ready to declare in the next breath that 'any person' did not embrace the inhabitants of Benguet, or that it meant by 'prop- erty' only that which had be.come such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by native custom and by long association, one of the pro- foundest factors in human thought, re- garded as their own." Carino v. Insular Government. 212 U. S. 449, 53 L. Ed. 594. 29 S. Ct. 334. "It is true that, by § 14. the govern- ment of the Philippines is empowered to enact rules and prescribe terms for per- fecting titles to pul)lic lands where some, but not all, Spanish conditions had been fulfilled, and to issue patents to natives for not more than 16 hectares of public lands actually occupied by the native or his ancestors before August 13. 1898. But this section perhaps might be satisfied if confined to cases where the occupation was of land admitted to be public land, and had not continued for such a length of time and imder such circumstances as to give rise to the understanding that the occupants w^ere owners at that date." Carino z'. Insular Government. 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. Necessity for paper title. — "We hesi- tate to suppose that it was intended to declare every native who hati not a pa- per title a trespasser, and to set the claims of all the wilder tribes afloat. It IS true again that there is expected from the provision that we have quoted as to the administration of the property and rights acquired by the United States, such land and property' as shall be . designated by the president for military or other reservations, as this land since has been. But there still remains the question what property and rights the United States asserted itself to have ac- quired." Carino z: Insular Government, 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. 306-8. Claims recognized by treaty. — The claim of one whose title under a Mexican land grant is perfect and coin- plete, and who is, therefore, not bound under the Act of March 3. 1891, to apply to the court of private land claims for confirmation, is not cut down to the ex- tent that the land has been patented by the United States to third parties, be- cause he appeared and prayed confirma- tion in a suit brought against him by the United States under the authority of § 8 of that act. to remove the government's doubt as to title or boundaries, on the theory that the language of § 14, giving that effect to such patents "if in any case" it shall appear that the lands or any part thereof, decreed to any claimant imder the act, shall have been sold by the United States, applies not only to the proceeding brouglit by the claimant him- self for confirmation, but also to the proceeding on behalf of the government, in which the court is to determine the matter, subject to all lawful rights ad- verse to the claimant or possessor, and as between such claimant and possessor and any other claimant or possessor, and subject in this respect to all the ap- plicable statutory provisions. Richard- son V. Ainsa, 218 U. S. 289, 54 L. Ed. 1044, 31 S. Ct. 23. 1033 314-348 PUBLIC LANDS. Vol. X. (3) Proceeding to Confirm, Ascertain and Complete — (d) Determination by Commissioners — bb. Jurisdiction, Pozvers and Duties — (bb) Claims Cogni- sable. — See note 55. (e) Determination by State, Territory and Federal Courts — cc. Claifns Cog- nisable and Confirmable. — See note 82. d. Evidence of Grant from Former Sovereign — (2) Presumption and Bur- den of Proof — (b) Presumption of Grant. — See note 47. Grant Presumed Reported According to Law. — It will be presumed, in 314-55. Claims cognizable. — Florida land claims which previously had been rejected as fraudulent or maintained by improper means, when the fraud ad- dressed itself to avoiding the treaty of February 22, 1819, with Spain, as well as when the fraud related to some other fact material to the validity of the claims at the time when they were created, were covered by 'the proviso in Act June 22, 1860, c. 188, § 3, 12 Stat. 85, prohibiting commissioners from embracing among the claims which ought to be confirmed "any claim which has been heretofore presented for confirmation before any board of commissioners or other public officers acting under authority of con- gress, and rejected as being fraudulent, or procured or maintained by fraudulent or improper means." United States v. Dalcour, 203 U. S. 408, .51 L. Ed. 248. 27 S. Ct. 58. The rejection of a Florida land claim by a judge of the superior court of West Florida, acting under Act Mav 23, 1828, c. 70, § 6, 4 Stat. 284, § 6, because of an unv^arranted alteration of the date in the registro which would save the grant from invalidity under the treaty of Feb- ruary 22, 1819, with Spain, brings the case within the proviso of Act June 22, 1860, c. 188, § 3, 12 Stat. 85, prohibiting commissioners from embracing among the claims which ought to be confirmed "any claim which has been heretofore presented for confirmation before any board of commissioner or other public officers acting under authority of con- gress, and rejected as being fraudulent, or procured or maintained by fraudulent or improper means." United States v. Dalcour, 203 U. S. 408, 51 L. Ed. 248, 27 S. Ct. 58. Judges of the superior court of West Florida were "Public officers acting un- der authority of congress" within the meaning of the proviso in Act June 22 3 860, c. 188, § 3, 12 Stat. 85, prohibiting commissioners from embracing among the Florida land claims which ought to be confirmed "any claim which has been heretofore presented for confirmation be- fore anj board of commissioners or other public officers acting under authority, of congress, and rejected as being fraudu- lent, or procured or maintained by fraudulent or improper means." United States V. Dalcour, 203 U. S. 408, 51 L. Ed. 248, 27 S. Ct. 58. 319-82. Claims cognizable and con- firmable. — A judge of the' superior court of West Florida, acting under Act May 23, 1828, c. 70, § 6, 4 Stat. 284, 285, had jurisdiction to reject a Florida land claim because of an unwarranted altera- tion in the date of the registro which would save the grant from invalidity un- der the treaty of February 22, 1819 (8 Stat. 258), with Spain, although a proviso to that section excluded him from taking cognizance of any claims annulled by the treaty. United States v. Dalcour, 203 U. S. 408, 51 L. Ed. 248, 27 S. Ct. 58. 348-47. Presumption in favor of long possession. — "It might, perhaps, be proper and sufficient to say that when, as far back as testimony or memory goes, the land has been held by individ- uals under a claim of private ownership, it will be presumed to have been held in the same way from before the Spanish conquest, and never to have been public land." Carino v. Insular Government. 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. Every presumption should be indulged against the United States claiming title to land in the province of Benguet in the Philippine Islands, which, for more than 50 years prior to the treaty of peace with Spain (Treaty April 11, 1899, 30 Stat. 1754), has been held by the present na- tive Igorot holder and his ancestors un- der claim of private ownership. Carino V. Insular Government, 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. A native title to land in the province of Benguet in the Philippine Islands, which for more than 50 years prior to the treaty with Spain (Treaty April 11, 1899, 30 Stat. 1754), a native Igorot and his ancestors have held in accordance with Igorot custom, as private property, should be recognized by the insular gov- ernment, though no document of title is- sued from the Spanish crown, where, even if tried by law of Spain, without reference to effect of change of sov- ereignty and of the declaration of pur- pose and safeguards embodied in Organic Act July 1, 1902, c. 1369, 32 Stat. 691, it is not clear that he is not the owner. Carino v. Insular Government, 212 U. S. 449, 53 L. Ed. 594, 29 S. Ct. 334. 1034 \'ol. X. PUBLIC OFFICERS. 349 the absence of any showing to the contrary, that the governor-general of the PhiHppines reported a grant of tide lands to his superiors at Madrid, as re- quired by royal decree. ^'^^ PUBLIC MINISTERS.— See references ante under Ambassadors and Con- suls, p. 25. PUBLIC OFFICERS. I. Definition, Distinctions and Creation, 1036. V. Qualification and Induction, 1036. F. Actions on Official Bonds, 1036. 4. Pleas and Defenses. 1036. a. In General, 1036. VII. Commencement, Duration and Termination of Authority, 1036. C. Vacation of Office, 1036. 4. By Abolition of Office, 1036. a. Power to Abolish, 1036. c. Change of Sovereignty. 1036. VIII. Compensation, 1036. B. Amount of Compensation, 1036. 4. Right to Extra Compensation, 1036. c. Under Statutorv Provisions Limiting Right. 1036. (1) Terms, 1036. (2) Effect, 1037. C. Recovery, 1037. 5. De Jnre from De Facto Officers, 1037. IX. Powers, Duties and Liabilities, 1037. A. Powers, 1037. 7. Presumptive A'alidity and Authority, 1037. b. \Miere Discretion Reposed. 1037. (1) In General, 1037. C. Liabilities. 1037. 2y2. Accounting for Illicit Gratuities and Gains from Fraudulent Profits on Contracts. 1037. 3. Liability to Third Parties, 1038. a. Personal Liability for Official Acts, 1038. (1) \\lien Authorized or Adopted bv Government. 1038. (3) ^linisterial Action. 1038. (a) In General, 1038. 4. Criminal Liability, 1039. a. In General, 1039. d. Falsifying Records, 1039. XII. Ofi'enses against Civil Service, 1039. A. Solicitajtion by Letter of Contribution for Political Purpose. 1039. CROSS REFERENCES. See the title Public Officers, vol. 10. p. 363, and references there given. In addition, see ante, Conspiracy, p. 256. 349-50a. Grant presumed reported ac- ernmeiit, 221 U. S. 623, 5.5 L. Ed. 884, 33 cording to law. — Costas v. Insular Gov- S. Ct. 664. ' 1035 371-407 PUBLIC OFFICERS. Vol. X. As to liability of marshal for detaining vessel on attachment, see ante, Ad- miralty, p. 10; post. United States Marshals. I. Definition, Distinctions and Creation. An office commonly requires something more permanent than a single transi- tory act or transaction to call it into being. The acceptance of the duty of spending and accounting for a small fund does not amount to holding a civil office within the statutes of the United States or under the Philippine Penal Code.-''^ V. Qualification and Induction. F. Actions on Official Bonds — 4. Pleas and Defenses — a. In General. — As to defenses in an action on a bond of an Indian agent, see case cited in note 51a. VII. Commencement, Duration and Termination of Authority. C. 'Vacation of Office — 4. By Abolition of Office — a. Poi^xr to Abolish. — In the absence of a constitutional prohibition express or implied, congress can abolish an office over which the United States is lawful sovereign. ^'^'^ c. Change of Sovereignty.— ^e& ante, International Law, p. 686. VIII. Compensation. B. Amount of Compensation — 4. Right to Extra Compensation — c. Under Statutory Proiisions Limiting Right — (1) Terms. — See note 55. 371-4a. Single transaction — Carring- ton v. United States, 208 U. S. I, 52 L. Ed. 367, 28 S. Ct. 203. The acceptance by an army officer on the active list, detached to command a battalion of Philippine scouts, of a small sum trom the civil government of the Philippine Islands, to be used by him in connection with his military command in the preparation and display of an exhibit at the Louisiana Purchase Exposition, did not make him a civil officer, so as to be amenable to Pen. Code, P. I., art. 300, punishing the falsification of a public document by a public official. Carring- ton z'. United States, 208 U. S. 1, 52 L. Ed. 367, 2S S. Ct. 203. "In Carrington t: United States, 208 U. S. I, 52 L. Ed. 367, 2S S. Ct. 203, where a military officer of the United States was prosecuted as a civil officer of the gov- ernment of the Philippmes. His convic- tion was reversed, this court holding that, 'as a soldier, he was not an official of the Philippines, but of the United States." " Weems v. United States, 217 U. S. 349, 54 L. Ed. 793, 30 S. Ct. 544. 392-51a. Defenses in action on bond of Indian agent. — United States Fidelity, etc., Co c'. United Stales, 214 U. S. 507, 53 L. Ed. 1061, 29 S. Ct. 702, affirming 150 Fed. 550, 80 C. C. A. 446, no op. 401-16a. Sancliez z: United States, 216 U. S. 167. 54 L. Ed. 432, 30 S. Ct. 361. See O'Reilly de Camara v. Brooke, 209 U. S. 45, 49, 52 L. Ed. 676, 28 S. Ct. 439. See post, "When Authorized or Adopted by Government," IX, C, 3, a, (l). Congress could, by Act April 12, 1900, c. 191, 31, Stat. 77, confiscate without compensation, so far as the federal con- stitution is concerned, the office of so- licitor of the courts of first instance of the capital of Porto Rico, lawfully pur- chased in perpetuity, prior to the occupa- tion of Porto Rico by the military au- thorities of the United States, and the cession of that island to the United States. Judgment, Sanches v. United States (1907), 42 Ct. CI. 458, affirmed. Sanchez v. United States, 216 U. S. 167, 54 L. Ed. 432, 30 S. Ct. 3G1. The abolition of the office was not in violation of any provision of the con- stitution, nor did it infringe any right of property which the claimant could as- sert as against the United States. Sanchez z: United States, 216 U. S. 167, 54 L. Ed. 432, 30 S. Ct. 361. affirming 42 Cl CI. 458. 407-55. Terms and history. — A succinct history of the legislation respecting the question of extra compensation for gov- ernment employees is contained in the case of United States t; King, 147 U. S. 376, 681, 37 L. Ed. 328, 13 S. Ct. 439. Section 1765, Rev. Stat., was taken from two statutes, the first passed March 3, 1839 (5 Stat, at L. 349, chao. 83, U. S. Comp. Stat. 1901, p. 1207), and the second August 23, 1842 (5 Stat, at L. 510, chap. 183, U. S. Comp. Stat. 1901, p. 1207), and may be considered to be, to some extent, in pari materia with §§ 1763, 1764. United States v. Saunders, 120 U. S. 126, 30 L. Ed. 594, 7 S. Ct. 467. Wood- well V. United States, 214 U. S. 82, 53 L. Ed. 919, 29 S. Ct. 576. 1036 \'ol. X. PUBLIC OFFICERS. 408-419 (2) Effect. — In a case merely of the performances of extra services, and not one of the filhng of two distinct places, offices, or employments, payment for such extra service is plainly prohibited by the terms of § 1765. Rev. Stat.; but in a case of the filling of two distinct offices, places or employments two compensations are allowed. ^''''^ C. Recovery — 5. De Jure from De Facto Officers. — A de jure officer may recover from the de facto incumbent the fees and emoluments of the office, received by the latter during his incumbency.'*-'' The actual cost of obtaining the fees and emoluments of an office, which would have been entailed on any person who might have held the office, may be set ofif by an ousted de facto officer in an action by the de jure officer to recover such official earnings. ^^"^ IX. Powers, Duties and Liabilities. A. Powers — 7. Presumptive A'alidity and Authority — b. IVhere Dis- cretion Reposed — (1) In General. — Legislative Board. — The establishment of railway passenger rates by the \'irginia Corporation Commission is not res judicata in a suit which seeks injunctive relief on the ground that the rates are confiscatory, although such commission for some purposes is a court, and acted only after hearing and investigation, since proceedings to establish rates are legislative, and not judicial, in their nature. ^^^ C. Liabilities — 2>4. Accounting for Illicit Gratuities and Gains From Fraudulent Profits on Contracts. — Interests of public justice will not toler- ate, under any circumstances, that a public official shall retain any profit or advantage which he may realize through the acquirement of an interest in con- flict with his fidelity as an agent. If he takes any gift, gratuity or benefit in violation of his duty, or acquires any interest adverse to his principle without a full disclosure, it is a betraval of his trust and a breach of confidence and he 408-56a. Effect. — Woodwell r. United States, 214 U. S. 82, 33 L. Ed. 919, 29 S. Ct. 57G. In United States v. Saunders, 120 U. S. 126, .30. L. Ed. 594, 7 S. Ct. 467, speak- ing of §§ 1763. 1765, Rev. Stat., the court said: "Taking these sections all to- gether, the purpose of this legislation was 1o prevent a person holding an oflice or appointment for which the law provides a definite compensation by way of sal- ary or otherwise, which is intended to cover all the services which, as such of- ficer, he may be called upon to render, from receiving extra compensation, ad- ditional allowances or pay for other serv- ices which niay be required of him either by act of congress or by order of the head of his departinent, or in any other mode added to or connected with the regular duties of the place which he holds; but that they have no application to the case of two distinct ofiicers, places, or employments, each of which has its own duties and its own compen- sation, which offices may both be held by one person at the same time. In the latter case he is. in the eye of the law. two officers, or holds two places or ap- pointments, the functions of which are separate and distinct, and. according to all the decisions, he is, in such case, en- titled to recover the two compensations. In the former case, he performs the added duties under his appointment to a single place, and the statute has pro- vided that he shall receive no additional compensation for that class of duties un- less it is so provided by special legisla- tion" Woodwell z\ United States, 214 U. S. 82, 53 L. Ed. 919, 29 S. Ct. 575. Compensation of an inspector of elec- tric light plants in the treasur}^ depart- ment, for services in installing an elec- tric light plant for the buildings of the interior department, at the request of the secretary of the interior, and by the di- rection of the secretarv of the treasurv, is forbidden by Rev. St'. U. S., § 1765 (U. S. Comp. St. 1901, § 1007), though valu- able, and performed after hours, and in addition to regular duties, being the per- formance of extra services not specially required by law and for which it did not fix the remuneration, and not the filling of two distinct places, offices, or employ- ments. Judgment (1906), 41 Ct. CI. 357, affirmed. Woodwell z\ United States, 214 U. S. 82, 53 L. Ed. 919, 29 S. Ct. 576. 413-82a. Albrieht v. Sandoval. 216 U. S. 331. 54 L. Ed. 502, 30 S. Ct. 318. 413-82b. Set-Off.— Albright z: Sandoval, 216 U. S. 331, 54 L. Ed. 502, 30 S. Ct. 318. 419-12a. Legislative board. — Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150. 29 S. Ct. 67. See the title IX'JUN'CTIOXS, p. 657. IDS'; 426-427 PUBLIC OFFICERS. Vol. X. must account to his principal for all he has received. In such cases it is not necessary to show affimiative fraud or loss for such agent has the power to conceal his fraud and hide the injury done his principal.-* i'' 3. Liability to Third Parties — a. Personal Liability for Official Acts — (1) When Authorized or Adopted by Government. — See note 42. (3) Ministerial Action — (a) In General. — Sufficiency of Process. — The process that shall protect an officer must, to use the customary legal expression, be fair on its face. By this is not meant that it shall appear to be perfectly regular, and in all respects in accord with proper practice, and after the most approved form; but what is intended is that it shall apparently be process law- fully issued, and such as the officer might lawfully serve. More precisely, that process may be said to be fair on its face which proceeds from a court, magistrate, or body having authority of law to issue process of that nature, and which is legal in form, and on its face contains nothing to notify or fairly apprise the officer that it is issued without authority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it.^'"^ 426-41a. United States i-. Carter, 217 U. S. 28G, 54 L. Ed. 7G9, 30 S. Ct. 515. Share in fraudulent profits of con- tractor. — An army engineer in charge of a harbor improvement, who secretly re- ceives from the contractors a proportion of the abnormal profits realized by them in the execution of their contracts, may be required to account in equity to the United States for the share so received, without any showing of any specific abuse of discretion on his part, or of any actual loss to the government by fraud or otherwise. Decree (1909), 172 F. 1, 96 C. C. A. 587, affirmed. United States V. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. Recovery on behalf of the government against the engineer in charge of a pub- lic improvement, who secretly receives from the contractors a proportion of the abnormal profits realized by them in the execution of their contracts, is not con- fined to the property or securities into which such illicit gains may be traced, but for any deficiency the government may have a personal judgment. United States V. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. "In Findlay v. Pertz. 29 L. R. A. 188. 192, 13 C. C. A. 559, 567, 31 U. S. App. 340, 357, 66 Fed. 427, 435, it was applied to a contract where it was shown that a municipal official, buying for the mu- nicipality, had received a commission from the seller. In that case the cir- cuit court of appeals said: 'His duty was to give to the public service the full benefit of a disinterested judgment and the utmost fidelity. Any agreement or understanding by which his judgment or duty conflicted with his private interest was corrupting in its tendency. We know of no more pernicious influence than that brought about through a sys- tem of commissions paid to public agents engaged in buying public supplies. Such arrangements are a fruitful source of public extravagance and speculation. The conflict created between duty and in- terest is utterly vicious, unspeakably pernicious, and an unmixed evil. Jus- tice, morality, and public policy unite in condemning such contracts, and no court will tolerate any suit for their enforce- ment.' " United States v. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. 426-42. Ratification by the executive, congress, and the treaty-making power, of the action of the military governor of Cuba in abolishing a hereditary office, with its emoluments, makes his act that of the United States, and exonerates him from all liability as for a tort in violation of the law of nations, or of a treaty of the United States. Judgment (D. C. 1906), 142 F. 858, affirmed. O'Reilly de Camara v. Brooke, 209 U. S. 45, 52 L. Ed. 676, 28 S. Ct. 439. 427-47a. Sufficiency of process. — Bryan V. Ker, 222 U. S. 107, 56 L. Ed. 114, 32 S. Ct. 26, following Conner v. Long, 104 U. S. 228, 237, 26 L- Ed. 723; Matthews V. Densmore, 109 U. S. 216, 27 L. Ed. 912. 3 S. Ct. 126; Harding v. Woodcock, 137 U. S. 43, 34 L. Ed. 580, 11 S. Ct. 6; Stutsman County v. Wallace, 142 U. S. 293, 309, 35 L. Ed. 1018, 12 S. Ct. 227; Marks v. Shoup, 181 U. S. 562, 45 L. Ed. 1002. 21 S. Ct. 724; Erskine v. Hohnbach, 14 Wall. 613, 20 L. Ed. 745; Haffin v. Mason, 15 Wall. 671, 21 L. Ed. 196. Validity of attachment — Liability of marshal. — A writ in the usual form of a monition and warrant of arrest in a suit in rem, issued from the office of the clerk of a federal district court, and bearing the seal of that court, will pro- tect the marshal in seizing and detaining a vessel in conformity to the command of the writ, although the purported signa- ture of the deputy clerk was affixed un- 1038 Vol. X. PUBLIC WORKS. 433-434 4. Criminal Liability — a. In General. — See ante, "Definition, Distinctions and Creation," I. d. Falsifying Records. — See post. Records. As to sufficiency of indictment for falsifying records or public documents under Philippine Code, see ante. Indictments, Informations, Presentments and Complaints, p. 652. XII. Offenses against Civil Service. A. Solicitation by Letter of Contribution for Political Purpose. — So- licitation by letter intended to be received and read by a postoffice employee in the postoffice building, and which was so received and read in such building, is embraced by the provision of Civil Service Act Jan. 16, 1883, c. 27, § 12, 22 Stat. 403, 407 (U. S. Comp. St. 1901, pp. 1217, 1223), that no person shall, in any loom or building occupied in the discharge of official duties by any officer or employee of the United States mentioned in such act, solicit, "in any manner whatever," or receive, any contribution of money or any other thing of value for any political purpose whatever."^'' PUBLIC PARKS.— See ante, Public Lands, p. 1012. PUBLIC POLICY. — See ante. Illegal Contracts, p. 622; AIgnopoliEs and Corporate Trusts, p. 874; post, Restraint on Alienation. PUBLIC SCHOOLS.— See post. Schools and School Di.stricts. PUBLIC SERVICE.— See ante, Privilege, p. 1006. PUBLIC SERVICE COMMISSION.— See ante. Carriers, p. 216; Consti- tutional Law, p. 264; Injunctions, p. 657; Mandate and Proceedings Thereon, p. 848; post. Railroads. PUBLIC SERVICE CORPORATIONS.— See ante, Carriers,' p. 216; post, Railroads; Street R-\ilways; Telegraphs and Telephone:s. PUBLIC TAXES.— See note la. PUBLIC WATERS.— See ante, Navigable Waters, p. 914. PUBLIC WORKS.— See post. United States. And see note lb. der an attempted but ineffectual delega- when the lease was made the borough tion of authority, and although the case had no authority to tax, both parties were stated in the libel upon which the writ charged with notice that such power issued was not cognizable as a suit in might, and probable would, be conferred rem in admirality, but only on personal when increase of population made it nec- action for damages. Bryan v. Ker, 222 essary. Even if the borough could have U. S. 107, 56 L. Ed. 114, 32 S. Ct. ^6. made a valid contract of exemption in 433-78a. United States v. Thayer, 209 1792, there is nothing to show that it did U. S. 39, 52 L. Ed. 673, 28 S. Ct. 426, re- so. On the contrary, the provision that versing 154 Fed. 508. the lessee was to 'pay public taxes' was _434-la. Public taxes as embracing mu- sufficiently comprehensive to embrace nicipal taxes. — In 1872, at a time when it municipal taxes whenever they could had no right to tax, the municipality of thereafter be lawfully assessed on land Norfolk, Virginia, leased lots of land or the improvements which were a part for ninety-nine years, renewable forever, of the land. Where one relies upon an the lessees and their assigns to pay the exemption from taxation, both the power annual rent and "the public taxes which to exempt and the contract of exemption shall become due on said land." Subse- must be clear. Any doubt or ambiguity quently the city was given the power of must be resolved in favor of the public." taxation, but made no effort to assess Perry Co. v. Norfolk, 220 U. S. 472, 477, these lots until 1906. The lessees then 55 L. Ed. 548, 31 S. Ct. 465. See ante, sought to enjoin their collection on the MUNICIPAL CORPORATIONS, p. 895; ground that the public taxes they had as- post, TAXATION. sumed were those which might be due to 434-lb. Public work. — A contract to the State and to the United States. The build and deliver a steamer for the United court said: "It is admitted that the States was a public work under the Act lessees have expressly agreed to pay of August 13, 1894, c. 280, 28 Stat. 278, as taxes due Virginia or the federal govern- amended by the Act of February 24, 1905, ment, regardless ot the character of the c. 778, 33 Stat. 811, protecting persons estate created. And, while it is true that furnishing materials or labor "for the 1039 434-435 QUIETING TITLE. Vol. X. PURCHASE.— See note Ic. PURCHASERS. — See post, Sales; \'endor and Purchaser. PURE COLORS.— See note a. PURE FOOD LAW. — See references ante, under Foods and Drugs, p. 584. PURPOSE OR INTENT.— See note b. PUTATIVE CRIMINALS.— See note c. QUARANTINE. — See the title Quarantine, vol. 10, p. 435, and references there given. In addition, see ante, Animals, p. 27; Carriers, p. 216; Inter- state and Foreign Commerce, p. 689; Police Power, p. 955. QUESTIONS OF LAW AND FACT. — See references under Questions of Law and Fact, vol. 10. p. 436. In addition, see ante. Evidence, p. 558. QUIETING TITLE. II. Jurisdiction of Equity and Grounds for Relief, 1041. A. Equity Jurisdiction Generally, 1041. B. Enlargement by Statute, 1041. C. What Constitutes a Cloud, 1041. 2. X'oid Instruments and Proceedings, 1041. b. Invalidity Apparent Only in Connection with Extrinsic Evi- dence, 1041. f. Illegal Taxes and \*oid Tax Sales, 1041. j. Deeds, 1041. D. Principles and Conditions Governing Exercise, 1042. 3. Adequate Remedy at Law, 1042. b. Possession and Previous Trial at Law, 1042. (1) Necessity, 1042. (a) In General, 1042. (b) Under State Statutes, 1042. aa. Possession, 1042. bb. Previous Trial at Law, 1042. construction of public works." Title Guar- be to enable any common carrier to ex- anty. etc., Co. v. Crane Co., 219 U. S. 24. rmpt itself from any liability created by 31. 55 L. Ed. 72, .SI S. Ct. 140. See ante. lliis act." The provisions of § 5 were in- MECHANICS' LIENS, p. 861. tended to apply as well to existing, as to 434-lc. Purchase. — In § 452 of the Re- future, contracts and regulations of the vised Statute v.diereby. "the officers, described character. The words, "the clerks, and employees in the general land purpose or intent of which shall be to en- office are prohibited from directly or in- al)le any common carriei to exempt itself directly purchasing or becoming inter- from any liability created by this act." do ested in the purchase of any of the pub- not refer simply to an actual intent of the lie land," the term purchase is inclusive parties to circumvent the statute. The of the various modes of securing title to purpose or intent of the contracts and or rights in public lands under the gen- regulations, within the meaning of the eral laws regulating their disposal. Was- section, is to be found in their necessary key V. Hammer, 2;23 U. S. 85, 92, 56 L. operation and effect in defeating the lia- Ed. 359, 32 S. Ct. 187. See ante, PUBLIC bility which the statute was designed to LAXDS, p. 1012. enforce. Only by such general applica- 435-a. Pure colors. — See Heath, etc., tion could the statute accomplish the ob- Mfg. Co. V. Worst, 207 U. S. 338, 52 L. Ed. ject which it is plain that congress had 236. 28 S. Ct. 114. See. also, ante, CAR- m view. Philadelphia, etc., R. Co. v. Schu- BONATE OF LEAD. p. 215. And see bert, 224 U. S. 603, 608, 56 L. Ed. 911. 32 ante, POLICE POWER, p. 955. S. Ct. 589. See ante. INTERSTATE 435-b. Employers' Liability Act.— AND FOREIGN CO^IMERCE, p. 689. Section 5 of the Employers' Lialnlity Act 435-c. Putative criminals. — See Lang of April 22, 1908, declares void ''any con- v. New Jersey, 209 U. S. 467, 52 L. Ed. tract, rule, regulation, or device whatso- 894, 28 S. Ct. 594. See. also, ante, ever, the purpose or intent of which shall GRAND JURY, p. 609. 1040 Vol. X. QUIETIXG TITLE. 439-442 7. Complainant Must Do Equity, 1042. a. In General, 1042. b. Payment of Liens Assumed as Part of Purchase Price, 1042. E. Effect of Acts Pendente Lite as Defeating Jurisdiction, 1043. III. Proceedings, 1043. A. Enforcement by Federal Courts. 1043. A^. Limitations and Laches, 1043. F Bill. Petition or Complaint, 1043. . Oy^. Plea or Answer, 1044. Kj/^. Issues and Findings, 1044. CROSS REFERENCES. See the title Quieting Title, vol. 10, p. 437, and referenc.es there given. As to federal courts following state decisions, see ante, Courts, p. 398. II. Jurisdiction of Equity and Grounds for Relief. A. Equity Jurisdiction Generally. — See note 5. B. Enlargement by Statute. — See note 6. C. What Constitutes a Cloud — 2. \'oid Instruments and Proceedings — b. InvaVidity Apparent Only in Connection zmth Extrinsic Evidence. — See note 19. f. Illegal Taxes and J'oid Tax Sales. — See notes 21, 23. j. Deeds. — \Miere an invalid deed whose invalidity rests upon matters in pais casts a cloud upon the title of the complainant, equity will decree the can- cellation of the same.-^^ 439-5. Equity jurisdiction. — Boise, etc., Water Co. v. Boi.se City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. 439-6. Georgia. — Graves z'. Ashburn, 215 U. S. 331, 54 L. Ed. 217, 30 S. Ct. 108. Iowa, Nebraska and Utah. — Lawson v. United States ^lin. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. 441-19. Invalidity apparent only in connection with extrinsic evidence. — Graves v. Ashburn, 215 U. S. 331, 54 L. Ed. 217, 30 S. Ct. 108. See post, "Deeds," II, C, 2, j. 441-21. Illegal sale. — Boise, etc., Water Co. z: Boise City, 213 U. S. 276, 53 L. Ed. 796, 29 S. Ct. 426. 441-23. A municipal ordinance impos- ing a license fee on public service cor- porations does not cast a cloud upon the title of the company to its franchises, where the municipality's only remedy, for the collection of the license fee, is an action at law in which the illegality of the ordinance is open, the license not being a lien upon the franchises or any other . property of the companj-. The company's real point here is not tiiat the ordinance imposing a license fee casts a cloud upon its title, but that the reason alleged to have induced the ordinance, namely, the city's claim that the com- pany has no more than a mere permis- sion to occupy the streets, unfavorably aflfects its property and impairs its credit. Boise, etc.. Water Co. i'. Boise Citv. 213 U. S. 276. 53 L. Ed. 796, 29 S. Ct. 426. 442-26a. Deeds. — The inability of the grantee in a fraudulent deed to recover if he should sue does not defeat the right to have a deed canceled as a cloud on title, wliere the invalidity does not ap- pear upon the face of the deed, but rests partly on matter in pais, and where pos- session under it for seven years might, under Civ. Code Ga. 1895, § 3589, give title. Decree, Ashburn v. Graves (1007), 149 F. 968, 79 C. C. A. 478, reversed. Graves v. Ashburn, 215 U. S. 331. 54 L. Ed. 217. 30 S. Ct. ins. Project abandoned and deed returned to grantor after record. — A cloud on the title of the owner of land in Greer county, Okla., under patent from the United States, created by the record of a deed previously executed by him while he was claiming ownership under a Texas patent, m pursuance of an arrangement whereby the grantees were to sell the land and to collect certain notes for the purchase price of property which the grantor had already sold, and to turn over two-thirds of the proceeds to the grantor, retaining one third for their commissions, will be removed and the deed canceled, where the project was abandoned and the deed was returned to the grantor, together with the notes. Judgment (1906), 87 P. 669, 17 Okl. 40, affirmed. Bogard v. Sweet, 209 U. S. 464. 52 L. Ed. 892. 28 S. Ct. 595. 12 U S Enc— 66 1041 445-447 QUIBTIXG TITLE. Vol. X. D. Principles and Conditions Governing Exercise — 3. Ade^quate: Rem- edy AT Law — b. Possession and Previous Trial at Lazi' — (1) Necessity — (a) In General. — It was generally necessary that the plaintiff in a suit to quiet title should be in possession of the property and, except where the defendants were numerous, that his title should have been established at law or be founded on undisputed evidence or long-continued possession. ^*'^ (b) Under State Statutes — aa. Possession. — See note 40. bb. Previous Trial at LauK — By statute in some of the states a prior suc- cessful adjudication, in an action at law, of the complainant's legal title is not essential. ^^^ 7. Complainant Must Do Equity — a. In General. — A person suing to quiet his title must do equity as a condition precedent to a decree in his favor.-*^'' b. Paxment of Liens Assumed as Part of Purchase Price. — The purchaser of mortgaged property, under an agreement to pay the lien of the mortgages and 445-363. Possession and previous trial. — Lawson z'. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15, following Holland v. Challen, 110 U. S. 15, 28 L. Ed. 52. 3 S. Cl. 495. which cited Alexander z'. Pendleton, 8 Cranch 462, 3 L. Ed. 624; PeirsoU v. Elliott, 6 Pet. 95, 8 L. Ed. 332, and Orton z\ Smith, IS How. 263. 15 L. Ed. 393. 446-40. Possession. — Lawson f. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. Where the premises, or the greater part of them, are woodland, not inclosed by fences, but in their original natural condition, "possession is a fiction of law rather than a possible fact, and it would be reasonable to assume that possession remains with the title. Green z'. Liter, 8 Cranch 229, 3 L. Ed. 545; Ga. Code, § 3878. We may say more broadly, and without qualifying Lawson v. United States Min. Co., 207 U. S. 1, 9, 52 L. Ed. 65, 28 S. Ct. 15, that, in view oi the stat- ute, the relief, in case of such lands, should not be made to depend upon the shadowy distinctions, according to the greater or less extent of the trespasses committed. See Holland v. Challen, 110 U. S. 15, 28 L. Ed. 52, 3 S. Ct. 495; Sim- mons Creek Coal Co. •c'. Doran, 142 U. S. 417, 449, 35 L. Ed. 1062, 12 S. Ct. 239. It has been intimated by the Georgia court that reliei would be granted, irre- spective of possession. Pierce z'. Middle Georgia Land & Lumber Co., 131 Ga. 99, 61 S. E. 1114; Griffin z>. Sketoe, 30 Ga. 300. See, also, Sharon z'. Tucker, 144 U. S. 533, 543, 36 L. Ed. 532, 12 S. Ct. 720." Graves z: Ashburn, 215 U. S. 331. 54 L. Ed. 217, 30 S. Ct. 108. Nebraska. — In Holland r. Challen. 110 U. S. 15, 28 L. Ed. 52, 3 S. Ct. 495. it was held that under the Nebraska statute a suit might be maintained by one out o^ possession against another also out of possession, to quiet the title of the former to the premises. It was said that it was "a case in which an enlargement of equitable rights is effected, although presented in the form of a remedial pro- ceeding." Lawson v. United States Min. Co.. 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. 446-41a. Previous trial. — Lawson v. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. Iowa and Nebraska. — In Holland v. Challen, 110 U. S. 15, 28 L. Ed. 52, 3 S. Ct. 95, it was said: "The statute of Ne- braska authorizes a suit * * * without reference to any previous judicial de- termination of the validity of the plain- tiff's right, and without reference to his possession. Any person claiming title to real estate, whether in or out of posses- sion, may maintain the suit against one who claims an adverse estate or interest in it, for the purpose of determining such estate and quieting the title." Lawson r. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. "The same question was considered and decided in the same way in respect to a suit based upon a similar statute, in Iowa, in Wehrman z\ Conklin, 155 U. S. 314, 39 L. Ed. 167, 15 S. Ct. 129." Law- son r. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. Utah. — The holder, through a patent from the United States, of the legal title to a lode mining claim, in possession, may maintain a suit in equity, in a fed- eral circuit <:ourt sitting in Utah, with- out a prior adjudication in an action at law of its legal title, to quiet title and to restrain defendants from further mining or removing ore from beneath the sur- face of such claim, in view of the pro- visions of Utaii Rev. Stat., § 3511, that an action ma}^ be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such ad- verse claim. Lawson z\ United States Min. Co., 207 U. S. 1, 52 L. Ed. 65. 28 S. Ct. 15. 447-45a. Complainant must do equity. — Stoffela z: Nugent, 217 U. S. 499, 54 L. Ed. 856, 30 S. Ct. 600. 1042 Vol X. QUIET I XG TITLE. 447-450 the judgments of foreclosure thereon, is not entitled to have his title quieted as against the mortgagee, without paying the mortgage debt, although the mortgagee in bad faith evaded the purchaser's effort to make such payment, and with full knowledge of the facts, and with intent to defraud, procured from the mortgagor a conveyance of a part of the premises, and a new mort- gage on the residue, and satisfied of record the former mortgages and judg- ment liens.^^" E. Effect of Acts Pendente Lite as Defeating Jurisdiction. — The cut- ting pendente lite by the grantee in a fraudulent deed of the timber valuable for turpentine purposes on a part of the land does not defeat the jurisdiction of equity to enjoin further cutting.'*^'^ in. Proceedings. A. Enforcement by Federal Courts. — Administration of Relief under State Statutes. — Where a state statute enlarges the ancient jurisdiction of courts of equity in respect to suits to quiet title, the equitable rights them- selves remaining, the enlargement thereof may be administered by the federal courts sitting as courts of equity, as well as by the courts of the state, subject to the constitutional rights of the parties to a trial by jury, and to the express provisions of Rev. Stat., § 723, inhibiting suits in equity in any case where a plain, complete and adequate remedy may be had at law.'*^^ A|. Limitations and Laches. — A patent from the United States, invalid when made, after five years without attack, must be deemed to have the same eflfect as against the United States in a suit to remove a cloud on title as though it were valid when issued, in view of the Act of March 3, 1891 (26 Stat, at L. 1099, chap. 561), § 8, although this section in form only bars suits to annul the patent.^^^ F. Bill, Petition or Complaint. — Allegation in Detail of Title and Possession. — In an action to determine adverse claims, it was unnecessary to allege in detail plaintiff's chain of title, or to refer to the issuance of a patent to one of the defendants ; and the fact that this was done, and that the com- plaint alleged that the patent was issued through mistake and fraud, did not alter the nature of the action, or add anything to the force of the pleadings.^^^ Successful Trial at Law. — A bill to quiet title to land against a singly ad- verse claimant must aver that complainant's title has been established by at 447-45b. Payment of liens.— Stoffela z'. firming Whitehead v. Shattuck, 138 U. Xupent, 217 U. S. 499, 54 L. Ed. 856, 30 S. 146, 34 L. Ed. 873, 11 S. Ct. 276. S. Ct. 600. 448-51a. Limitations and laches. — United 447-45C. Acts pendente lite.— Decree, States f. Chandler-Dunliar Water Power Ashburn v. Graves (1907), 149 F. 968, 79 Co., 209 IJ. S. 447, 52 L. Ed. 881, 28 S. C. C. A. 478, reversed. Graves v. Ash- Ct. 579, affirming 152 Fed 25 81 C. C. burn 21^ T^ S 331 54 L Fd "17 30 S A. 271. v^ee the title LIMITATION OF Ct 108 ACTIONS AND ADVERSE POSSES- 448-48a. Relief under state statutes.- ^^4^0^-611 ^ Bill petition or complaint.- Lawson r. United States Mm _Co. 20. ^ ^, g^^^^j^ ^and, etc., Co.. 203 U. U. S^l, 02 L. Ed^6o 28 SCt.lo follow^ S .^ ^ gj 32 ^^ g. Ct. 780, af- t"^t:«^ io"o c r^' o"' ^ ^- ' firming 91 Minn. 84, 97 N. W. 575. L. Ed. 52, 3 b. Lt. 49d. ^^^ cancellation for fraud of a deed "Such a statute can not be relied upon ^^ land containing pine woods valuable in the federal courts to sustain a bill in ^^^ timber and turpentine should not be equity by one out of possession against denied because the complainants do not one in possession, for an action at law allege that they are in possession of the in the nature of an action of ejectment j^nd. Decree, Ashburn ?■. Graves (1907), affords a perfectly adequate legal rem- 140 p ggg 79 (^ q \. 478, reversed, edy." Lawson v. United States Min. Co., Graves z' X«hburn, 215 U. S. 331, 54 L. 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15, af- EJ 217^ 30 S. Ct. 108. 1043 451-453 QUO WARRANTO. Vol. X. least one successful trial at law before equity will entertain jurisdiction,^-^ unless by force of a statute such adjudication is not necessary to the mainte- nance of such suit.^^*" GJ. Plea or Answer. — Under Code Civ. Proc, § 437, providing that the answer of defendant shall contain a general or specific denial of the allegations of the complaint, an answer in a suit to quiet title need not allege defendant's title, but only deny the plaintiff's allegation, though, to entitle defendant to avail himself of an equitable title as against plaintift''s legal title, it should be specifically pleaded. ^*^^ K|. Issues and Findings. — In an action to quiet title, there is no occasion for a finding as to any alleged title of plaintiff not set up in the complaint.*^^" Under Code Civ. Proc, § 437, providing that the answer of defendant shall con- tain a general or specific denial of the allegations of the complaint, a finding in a suit to quiet title on the issues raised by denial of the allegations of the com- plaint, if adverse to plaintiff', is sufficient, without finding defendant's title.*^^' QUI, SERIUS, ETC.— See note a. QUO WARRANTO. CROSS REFERENCES. See the title Quo Warranto, vol. 10, p. 453, and references there given. In addition, see post. Religious Socie^tiEs. As to alignment of parties in quo warranto to sustain jurisdiction of fed- eral court on grounds of diverse citizenship, see ante. Courts, p. 398. As to nonfederal questions on appeal or writ of error to judgment in quo warranto proceedings in state court to oust foreign corporations, see ante, Appeal and Error, p. 34. As to conclusiveness on appeal of ruling of state court that it had jurisdiction, see ante. Appeal and Error, p. 34. As to modifying judg- ment of ouster in quo warranto against foreign corporations, which can not be reversed as no federal question involved, see ante. Appeal and Error, p. 34. Nature and Purpose — Relief Offered. — See note 4. 451-63a. Lawson v. United States Min. 452-a. Qui, serius, etc. — "The Latin Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. proverb, qui, cito dat bis dat— he who There is nothing in the point decided gives quickly gives twice — has its coun- in Boston, etc., Min. Co. v. Montana Ore terpart in a maxim equally sound — qui se- Purchasing Co., 188 U. S. 632, 47 L. Ed. rius solvit, minus solvit — he who pays too 626, 23 S. Ct. 434, which, rightly con- late pays less." Hubert v. New Orleans, sidered, conflicts with the case of Hoi- 215 U. S. 170, 180, 54 L. Ed. 144, 30 S. Ct. land z\ Challen, 110 U. S. 15, 28 L. Ed 40, quoting Mr. Justice Field in Louisiana 52, 3 S. Ct. 495. Lawson v. United v. New Orleans, 102 U. S. 203, 200, 26 L. States Min. Co., 207 U. S. 1, 52 L. Ed. Ed. 132. See ante, IMPAIRMENT OF 05, 28 S. Ct. 15. OBLIGATION OF CONTRACTS, p 451-63b. Lawson v. United States Min. 624. ' Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 453-4. Nature and purpose of relief. — 15, following Holland v. Challen, 110 U. "Proceedings by information in the na- S. 15, 28 L. Ed. 52, 3 S. Ct. 495. ture of quo warranto differ in form and 451-66a. Plea or answer. — United Land consequence from a prosecution by in- Ass'n V. Abrahams, 208 U. S. 614, 52 L. dictment for violation of a criminal stat- Ed. 645. 28 S. Ct. 509, affirming 139 Cal. ute. In the one, the state proceeds for a 370. 00 Pac. 1064. violation of the company's private con- 452-68b. Issues and findings. — United tract; in the other, it prosecutes for a Land Ass'n v. Abrahams, 208 U. S. 614, violation of public law. The corporation 52 L. Ed. 645, 28 S. Ct. 569, affiriTiing 139 may be deprived of its franchise for non- Cal. 370. 09 Pac. 1064. user, a mere failure to act. It may also 452-68C. United Land Ass'n v. Abra- be deprived of its charter for that hams, 208 U. S. 614, 52 L. Ed. 645, 28 S. which, though innocent in itself. is Ct. 568, affirming 139 Cal. 370, 69 Pac. beyond the power conferred upon it as 1064. an artificial person. If, however, the act 1044 Vol. X. OUO IV ARE AX TO. 453 Constitutionality. — See note 5. of misuser is not only ultra vires but criminal, there is no merger of the civil liability in the criminal offense. Separate proceedings may be instituted, one to sectire the civil judgment, and the other to enforce the criminal law. Both cases may involve a consideration of the same facts; and evidence warranting a judg- ment of ouster may be sufficient to sus- tain a conviction for crime. A judgment may in one case sometimes be a bar to the other; but neither remedy is ex- clusive. The double liability, in civil and criminal proceedings, finds its counter- part in many instances; as, for ex- ample, where an attorney is disbarred or ousted of his right to practice in the court because of conduct for which he may likewise be prosecuted and fined." Standard Oil Co. z: Missouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. "The uncertainty as to the relief that may be granted in such case arises from the fact that at one time the proceeding was wholly criminal, and those guilty of usurping a franchise were prosecuted by information instead of by indictment, and punished both by judgment of ouster and by fine,. But in England, before the revolution, and since that date in most of American states, include Missouri, quo warranto has been resorted to for the purpose of trying the civil right, and determining whether the defendant had usurped or forfeited the franchise in question. After this method of procedure began to be used as a form of action to try title, it was inevitable that the civil feature would tend to dominate in fixing its character for all purposes. But the disctission as to the nature of such writs and the character of the judgment that could be entered, though not controlled by their use (Coffey v. County of Harlan, 204 U. S. 659, 664, 51 L. Ed. 666, 27 S. Ct. 305; Huntington v. Attrill, 146 U. S. 657, 667, 36 L. Ed. 1123, 13 S. Ct. 224; Bovd V. United States, 116 U. S. 616, 634, 29 L. Ed. 746, 6 S. Ct. 524), has been pro- longed by the retention of the words in- formation, prosecute, guilty, punish, fine, survivals of the period when the writ was a criminal proceeding in every re- spect." Standard Oil Co. z'. Missouri. 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. "In some jurisdictions the writ is still treated as criminal, both in the proce- dure adopted and in the relief afforded. State V. Kearn, 17 R. I. 401. 22 Atl. 322, 1018. But there are practically no de- cisions which deal with the nature and amount of the fine which can be entered in states where, as in Missouri, quo war- ranto is treated as a purely civil proceed- ing. The references to the subject, both in te.xt-books and opinion, are few and casual. They usually repeat Blackstone's statement (3 Com. 262) that the writ is now used for trying the civil right, "the fine being nominal only.' Ames z'. Johnston, 111 U. S. 449, 470. 28 L. Ed. 482, 4 S. Ct. 437; Com. v. Woelper. 3 Serg. & R. 53; High, Extr. Legal Rem. 702, 697, 593. These authorities and the general practice indicate that in most of the American states only a nominal fine can be imposed in civil quo warranto proceedings. We shall not enter upon any discussion of the question as to the character of the proceeding nor the amount and nature of the money judg- ment. For, in Missouri, and prior to tue decision in this case, the rulings were to the effect that the supreme court of Missouri had jurisdiction not only to oust, but to impose a substantial fine in quo warranto." Standard Oil Co. z\ Missouri, 224 U. S. 270. 50 L. Ed. 760, 32 S. Ct. 406. A corporation may, in a quo warranto proceeding in Missouri, be sub;ected to a substantial fine as well as to a judg- ment of ouster, quo warranto in that state being regarded as purely civil in ii i nature. Standard Oil Co. z\ Alissouri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 400. "In addition to these considerations it is to be noted that though the Antitrust Act provides for penalties somewhat similar to those which may be entered in quo warranto proceedings, the statute did not, and, as held by the supreme court, could not, lessen the power con- ferred upon it to hear and determine quo warranto proceedings, and to enter judg- ments which, on general principles, ap- pertained to the exercise of such con- stittitional jurisdiction. Standard Oil Co. z: Tennessee, 217 U. S. 413, 421, 54 L. Ed. 817, 30 S. Ct. 543; Delmar Jockey Club z: Missouri, 210 U. S. 324, 52 L Ed. 1080. 28 S. Ct. 732." Standard Oil Co. Z'. Missotiri, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. 453-5. Due process of law — Notice and hearing. — There is no want of due process of law in a judgment of the highest court of a state, imposing a sub- stantial fine in quo warranto proceed- ings, conformably to the local practice, upon a foreign corporation found to have misused its license to do business in the state, although there was no statute fix- ing a maximum penalt5^ no rule for measuring damages, and no hearing on that subject. Standard Oil Co. v. Mis- souri. 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 406. Entry of a judgment of ouster and the imposition of a substantial fine in quo warranto proceedings, conformably to 1045 453 RAILROADS. Vol. X. RAILROAD COMMISSION. — See ante, Carriers, p. 216; Injunctions, p. 657 ; post, Railroads. RAILROAD LAND GRANTS.— See ante, Public Lands, p. 1012. RAILROAD POOLS. — See ante, Monopolies and Corporate Trusts, p. 874. RAILROADS. V. Property, 1047. B. Right of Way and Other Real Interest. lCM-7. 9. Grants of Public Land to Aid Railroads, 1047. VI. Construction, Equipment, Maintenance and Operation, 1047. C. Operation of Road. 1047. 2. Regulation, 1047. a. Statutory and Municipal, 1047. (1) In General — Power to Regulate, 1047. (4) Control by Commissioners, 1047. (a) In General, 1047. (c) Injunction Suit in Federal Court against Com- missioners, 1047. (5) Constitutionality and \^alidity of Regulations, 1047. (a) In General, 1047. (e) Connection Regulations, 1047. (g) Compelling Building Tracks to Elevators, 1047. X. Traffic and Other Operating Contracts, 1048. F. Enforcement — Specilic Performance. 1048. CROSS REFERENCES. See the title Railroads, vol. 10, p. 455, and references there given. As to impairment of obligations of contracts, see ante. Impairment oe Obli- gation OF Contracts, p. 624. As to due process of law in condemnation pro- ceedings, see ante. Due Process of Law^, p. 475 ; Eminent Domain, p. 537. As to jurisdiction over suits by and against railroads, see ante. Courts, p. 398. As to due process of law in establishing rates and the enforcement thereof, see ante. Constitutional Law^, p. 264; Due Process oe Lav;^, p. 475. As to tax- ation of railroads and exemptions therefrom, see post, Taxation. As to regulation of commerce, interstate and intrastate, see ante, Interstate and Foreign Commerce, p. 689. As to regulation of rates by states, see ante. Car- riers, p. 216. As to requiring railroad to deliver to cars of connecting carrier, see ante. Carriers, p. 216; Constitutional Law, p. 264. As to association of railroad company with commodity carrier, see ante, Interstate and For- eign Commerce, p. 689. the local practice, afford sufficient notice its license to do business in the state, and opportunity to be heard to satisfy can not claim to have been denied the the due process of law clause of U. S. equal protection of the laws because cor- Const., fourteenth amendment, although porations prosecuted in the inferior state the information contains only general al- couits for identically the same acts, in legations of misuser, with only a prayer violation of the state Antitrust Act, are for ouster. Standard Oil Co. v. Missouri, entitled to trial jury, and, if convicted, 224 U. S. 270, 56 L. Ed. 760, 32 S. Ct. 400, can be ousted of their franchise and sub- See, also, ante, DUE PROCESS OF jected to a fine not to exceed $100 per LAW, p. 475; FOREIGN CORPORA- day during the time the combination TIONS, p. 584. continued in effect. Standard Oil Co. v. Equal protection of the laws. — A for- Missouri. 224 U. S. 270, 56 L. Ed. 760, 32 eign corporation ousted and fined $50,000 S. Ct. 406. See ante, CONSTITU- in civil quo warranto proceedings in the TIONAL LAW, p. 264; FOREIGN highest court of a state, for misuser of CORPORATIONS, p. 584. 1046 Vol. X. RAILROADS. 473-475 V. Property. B. Right of Way and Other Real Interest — 9. Grants of Pubuc Land TO Aid Railroads. — See cross reference, vol. 10, p. 471. VI. Construction, Equipment, Maintenance and Operation. 0. Operation of Road — 2. Regulation — a. Statutory and Municipal — (1) In General — Pozcer to Regulate. — The elementary proposition that railroads, from the public nature of the business by them carried on, and the interest which the public have in their operation, are subject, as to their state business, to state regulation, which may be exerted either directly, by the legislative au- thority, or by administrative bodies endowed with power to that end, is not and could not be successfully questioned, in view of the long line of authorities sustaining that doctrine.^ ^^ (4) Control by Commissioners — (a) In General. — See note 71. (c) Injunction Suit in Federal Court against Commissioners. — See ante. In- junctions, p. 657. (5) Constitutionality and J^alidity of Regulations — (a) In General. — See note 74. (e) Connection Regulations. — As requiring delivery and receipt of car be- tween connecting carriers, see ante, Carriers, p. 216. (g) Compelling Building Track to Elez'ators. — The compulsory construction and maintenance by a railway company, at its own expense, and without a pre- liminary hearing, under penalty of a heavy fine for refusal, of the side tracks or switches necessary to reach grain elevators which may be erected adjacent 473-61a. Statutory and municipal regu- lation. — Missouri Pac. R. Co. :•. Railroad Comm'rs, 216 U. S. 262, 54 L. Ed. 472, 30 S. Ct. 330; Atlantic, etc., R. Co. z: North Carolina Corp. Comm., 206 U. S. 1, 51 L. Ed. 933. 27 S. Ct. 585. 474-71. Control by commissioners. — Nothing in the federal constitution or statutes prevents a state from creating a board of railroad commissioners and prescribing their powers, or from regu- lating or forbidding the consolidation of railroad corporations, or from prescrib- ing the routes of railroads, and providing that parallel and. competing lines shall so remain. Judgment (1906), 41 So. 259, 89 Miss. 724. affirmed. Mobile, etc., R. Co. V. Mississippi, 210 U. S. 187. 52 L. Ed. 1016, 28 S. Ct. 650. Power to make a general schedule of maximum rates for the transportation of all commodities, upon all railroads, to and from all points within the state, upon a general and comprehensive com- plaint that rates are too high, or upon like information of the commission it- self, is not conferred upon the Kentucky railroad commission by Ky. Act of Alarch 10, 1900, authorizing such commission, upon complaint that the rates of any railway company are extortionate, or upon its own information to that efifect, to fix a reasonable rate if, after hearing, it finds the rates to be extortionate. Siler V. Louisville, etc.. R. Co., 213 U. S. 175. 53 L. Ed. 753. 29 S. Ct. 451. 475-74. Constitutionality. — See ante, IMPAIRMENT OF OBLIGATION OF CONTRACTS, p. 624. 1041 Denial of due process of law. — The duty of a railway company under its charter to furnish passenger service is not so discharged by carrying them on a mixed train, as to cause an order of the Kansas railroad commission, compelling passenger train service at a pecuniary loss, to be so arbitrary and unreason- able as to take property without due process of law, though Laws Kan. 1907, c. 274, as amended by Laws 1909, c. 190, gives the public the right to travel in the caboose of freight trains, since it recognizes that persons availing them- selves of such right are not entitled to ordinary passenger facilities, or to the legal protection surrounding passenger traffic. Judgment. State v. Missouri Pac. Ry. Co. (1907). 92 P. 606. 76 Kan. 4b7, af- firmed. Missouri Pac. R. Co. v. Railroad Comm'rs, 216 U. S. 262, 54 L. Ed. 472, 30 S. Ct. 330. See ante. DUE PROCESS OF LAW, p. 475. An order of a state railroad commis- sion directing a railroad company to dis- charge its corporate duty bj'' operating a passenger train over a branch line be- tween its terminus within the state and the state line is not so arbitrary or un- reasonable as to deprive the company of its property without due process of law, because there are no facilities at the state line, and no occasion for the termination of the transit at that point. Tavlor r. Mis- souri Pac. R. Co., 92 P. 606, 76 Kan. 467, affirmed in Missouri Pac. R. Co. v. Rail- road Comm'rs. 216 U. S. 262, 54 L. Ed. 472, 30 S. Ct. 330. 477-525 RAILROADS. Vol. X. to the right of way, cannot be justified as an exercise of the police power, but such statute takes the property of the railway company without due process of law, even if construed as operating only when the demand for such facilities is reasonable.^2^ X. Traffic and Other Operating Contracts. F. Enforcement — Specific Performance. — See note 90. 477-82a. Compelling building track to elevators. — Missouri Pac. R. Co. z>. Ne- braska, 217 U. S. 196, 54 L. Ed. 727, 30 S. Ct. 461. On the face of it, the statute Sess. Laws Neb. 1905, c. 105, §§ 1, 6 seems to require the railroad to pay for side tracks, whether reasonable or not, or, if another form of expression be preferred, to de- clare that a demand for a side track to an elevator anywhere is reasonable, and that the railroads must pay. Clearly, no such obligation is incident to their public duty, and to impose it goes beyond the limit of the police power. Missouri Pac. R. Co. V. Nebraska, 217 U. S. 196, 54 L. Ed. 727, 30 S. Ct. 461. There is no provision in the statute Sess. Laws Neb. 1905, c. 105, §§ 1, 6 for compensation to the railroad for its out- lay in building and maintaining the side tracks required. In the present cases, the initial cost is said to be $450 in one and $1,732 in the other, and to require the company to incur this expense un- questionably does take its property, what- ever may be the speculations as to the ultimate return for the outlay. Wood- ward 7'. Central Vermont Ry. Co.. 180 Mass. 599, 602, 603, 62 N. E. 1051. More- over, a part of the company's roadbed is appropriated mainly to a special use, even if it be supposed that the side track would be available incidentally for other things than to run cars to and from the elevator. It is true that railroads can be required to fulfill the purposes for which they are chartered and to do what is reasonably necessarj' to serve the pub- lic in ihc way in which they undertake to serve it. without compensation for the performance of some part of their du- ties that does not pay. Missouri Pac. R. Co. V. Railroad Comm'rs, 216 U. S. 262, 54 L. Ed. 473, 30 S. Ct. 330. It also is true that the states have power to modify and cut down property rights to a cer- tain limited extent without compensa- tion, for public purposes, as a necessary incident of government, the power com- monly called the police power. But railroads, after all, are property pro- tected by the constitution, and there are constitutional limits to what can be re- quired of their owners under either the police power or any other ostensible justification for taking such property away. Missouri Pac. R. Co. v. Nebraska, 217 U. S. 196, 54 L. Ed. 727, 30 S. Ct. 461. 525-90. Construction of decree. — The equal use and benefit of the entire ground owned by the Wabash, St. Louis & Pa- cific Railway Company, and used by it for its terminal facilities in St. Louis, and not merely a riglit of ^yay over its tracks running to the Union station, were granted to the St. Louis, Kansas City & Colorado Railroad Company by a decree awarding to the latter road the equal use, on certain prescribed terms, of the right of way and tracks, side tracks, switches, turn-outs, turntables, and other terminal facilities of the former road at and between the north line of Forest Park and Eighteenth street in the city of St. Louis. Decree (1907), 152 F. 849, 81 C. C. A. 643, modified. St. Louis, etc., R. Co. v. Wabash R. Co., 217 U. S. 247, 54 L. Ed. 752, 30 S. Ct. 510. The right of the St. Louis, Kansas City & Colorado Railroad Company to use terminal facilities in connection with industrial establishments now existing near the right of way of the Wabash, St. Louis & Pacific Railway Company is in- cluded in a decree by which the former road was given the right, upon certain prescribed terms, which contemplated modification upon change in conditions, to use the right of way and tracks, side tracks, switches, turn-outs, turntables, and other terminal facilities of the latter road at and between the north line of Forest Park and Eighteenth street in the city of St. Louis. St. Louis, etc., R. Co. ''. Wabash R. Co., 217 U.*S. 247, 54 L. Ed. 7 52, 30 S. Ct. 510. The use of the tracks of the Union Pa- cific Railroad Company as accessory only to the use of that company's bridge over the Missouri river at Omaha, and not for purposes which, like local switching, are wholly independent of any use of the bridge, was what was authorized by a de- cree based upon the Bridge Act (Act July 25. 1866, c. 246, 14 Stat. 244; Act Feb. 24, 1871, c. 67, 16 Stat. 430), adjudging to the Mason City & Fort Dodge Railroad Company and its lessee the right to the equal and joint use of the main and pass- ing tracks of the Union Pacific Railroad Company from their eastern terminus at Council Blufifs to a connection with the Union Stockyards Railroad and the other railroads connecting with the Union Pacific Railroad at South Omaha, includ- ing the bridge across the Missouri river at that point, and of the connections with 1048 Vol. X. RBCBIVBR GBXERAL. 534-535 RAILWAY MAIL SERVICE.— See ante, Postal Laws, p. 996. RAILWAY POSTAL CLERKS.— See ante, Postal Laws, p. 996. RANK. — See ante, Army and Navy, p. 150. RAPE. — See the title Rape, vol. 10, p. 530, and references there given. RATE OF INTEREST.— See ante. Banks axd Baxkixg, p. 184. REAL ACTIONS.— See the title Real Actions, vol. 10, p. 533, and refer- ences there given. REAL ESTATE.— See note 2. REAL PROPERTY.— See ante. Banks and Banking, p. 184; Husband and Wife, p. 620; Judgments and Decrees, p. 807; Limitation of Actions and Adverse Possession, p. 828; ^vIinks and ^Iinerals, p. 865. REASONABLE CARE AND PRUDENCE.— See ante, Negligence, p. 920. REASONABLE CERTAINTY.— See post. Reasonable Doubt. REASONABLE COMPENSATION.— See ante. Eminent Domain, p. 537. REASONABLE DOUBT. CROSS REFERENCES. See the title Reasonable Doubt, vol. 10, p. 534, and references there given. Term Defined and Explained. — See note 8. Proof Beyond Reasonable Doubt in Civil Cases. — See note 13. Proof Beyond Reasonable Doubt in Criminal Cases. — See note 14. Instructions as to Reasonable Doubt. — See note 15. REASON, RULE OF.— See ante, AIonopolies and Corporate Trusts, p. 874. REBATES. — See ante, Interstate and Foreign Commerce, p. 689; post, Revenl'E Laws. RECAPTION.— See the title Recaption, vol. 10, p. 536, and references there given. RECEIPTS.— See the title Receipts, vol. 10, p. 536, and references there given. RECEIVER GENERAL,— See ante. Banks and Banking, p. 184. the Union Stockyards tracks and with giving consideration to all the testimony, the tracks of all other railway companies and one which he believes would cause connecting at or near South Omaha with a reasonable man in any matter of like the tracks of the Union Pacific Railroad importance to hesitate to act, denies the Company to the same extent and upon notion that any mere possibility is suffi- the same terms as defined in certain ex- cient ground for such a doubt, "and adds isting contracts between the Union Pa- that, in the performance of jury service, cific Railroad Company and other rail- jurors should decide controversies as thc^^ ways; the common object of both stat- would any important question in their utes being the more perfect connection own aflfairs, is good as against a general of the roads running to the bridge on exception. Holt v. United States, 218 U. either side of the river. Union Pac. R. S. 245, 54 L. Ed. 1021. 31 S. Ct. 2. affirm- Co. V. Mason, etc.. R. Co., 222 U. S. 237. ing judgment United States v. Holt (C. 56 L. Ed. 180, 32 S. Ct. 86, reversing de- C. 1909) 1G8 F. 141. cree (1908) 165 F. 844, 91 C. C. A. 530. 535-13. Suit for injunction against judg- 534-2. Judgment liens.— As to real e-- ment.— See ante, JUDGMENTS AND tate wuhm the meaning of a statute DECREES p 807 providing that judgments shall be a lien ___ ,.•,->' vi j u^ on real estate, see ante, JUDGMENTS fS-U. Reasonable doubt as to san^^^^^^ AND DECREES p 807 — ^^^ 2,r\\.e. DLE PROCESS OF LA\\ , 534-8. Doubt must be reasonable. — An p. 475; INSANITY, p. 669: PRESUMP- instruTdon as to rea^orable doubt which^ ^lONS AND BURDEN OF PROOF, after defining such doubt as an actual P- • _ doubt which a juror is conscious of after 535-15. Instructions— In general.— See reviewing in his mind the entire case, ante, "Term Defined and Explamed." 1049 542-546 RBCEIVBRS. Vol. X. RECEIVERS. I. Definition, 1050. II. Nature of Office, 1050. III. Appointment, Qualification and Tenure, 1050. A. Grounds of Appointment, 1050. 2. In Creditors' Suits, Winding Up of Corporations, etc., 1050. B. Application and Hearing, 1050. 2. Exhaustion of Remedy at Law, 1050. IV. Receiver's Title and Right of Possession, 1050. B. Nature of Receiver's Title and Possession, 1050. D. Protection of Receiver's Possession, 1051. 7. Conflict of Concurrent Jurisdictions, 1051. a. General Rule, 1051. V. Care and Management of Property; Powers, Duties and Liabilities of Receivers, 1051. B. Care and Management of Property, 1051. 3. Liability for Expense of Care and Management, 1051. VII. Presentation, Allowance and Payment of Claims, 1052. A. Claims Allowable against Receivers, 1052. 2. Costs, 1052. CROSS REFERENCES. See the title Receivers, vol. 10, p. 538, and references there given. In addition, see ante. Appeal and Error, p. 34; Courts, p. 398; Interstate AND Foreign Commerce, p. 689; Monopolies and Corporate Trusts, p. 874. As to intervention in receivership, see ante, Parties, p. 932. I. Definition. See note 1. II. Nature of Office. See note 2. III. Appointment, Qualification and Tenure. A. Grounds of Appointment— 2. In Creditors' Suits, Winding Up of Corporations, etc. — See ante. Corporations, p. 381. B. Application and Hearing — 2. Exhaustion of Remedy at Law. — See note 12. IV. Receiver's Title and Right of Possession. B. Nature of Receiver's Title and Possession.— See note 28. 542-1. Receiver defined. — Atlantic Trust complainants were not judgment credit- Co. V. Chapman, 208 U. S. 360, 52 L. Ed. ors who had issued an execution which 528, 28 S. Ct. 406. was returned unsatisfied, in whole or in 542-2. Authority derived from the court. part, amounts to a waiver of that defense. —Atlantic Trust Co. 7-. Chapman, 208 U. In re Metropolitan R. Receivership, 208 S. .360, 52 L. Ed. 528, 28 S. Ct. 406. U. S. 90, 52 L. Ed. 40,3, 28 S. Ct. 219. 544-12. Exhausting remedy at law; 546-28. Nature of receiver's title and waiver — Receivers.— The consent of de- possession.— Atlantic Trust Co. v. Chap- fendant to the appointment of receivers, man, 208 U. S. 360, 52 L. Ed. 528, 28 S. without setting up the defense that the Ct. 406. 1050 Vol. X. RBCBIVBRS. 549-552 D. Protection of Receiver's Possession — 7. Conflict of Concurrent Jurisdictions — a. General Rule. — See note 40. Jurisdiction Not Lost because of Appeal with Supersedeas. — The ju- risdiction of a state court over the res, acquired by the appointment and qual- ification of a receiver of a foreign corporation, is not lost, so as to permit in- terference by a federal court, because of an appeal with supersedeas from the order appointing the receiver, where the state courts hold that the effect of the appeal and supersedeas bond is merely to suspend the order appointing the re- ceiver pending the determination of the appeal. Nor will the possible danger of prosecutions and interference pending such an appeal justify a federal court in interfering with the state court's custody of the res.^^'^ V. Care and Management of Property; Powers, Duties and Liabilities of Receivers. B. Care and Management of Property — 3. Liability for Expense of Care and Management. — The general rule is that the expenses of caring for and managing the property are a charge upon the property or fund under the control of the court."*^'' Plaintiff Obtaining Receivership Not Liable. — And there is generally no personal liability upon the plaintiff" who invoked the jurisdiction of the court for the purpose of obtaining a receivership.^*'' The cases, in which the party bringing suit, in which a receiver has been appointed, has been held personally liable for such expenses, are under peculiar circumstances and such as to make it equitable that that should be done.^^'' 519-40. Conflict between state and fed- eral authorities. — Jurisdiction of a state court of the property of a foreign corpo- ration attaches so as to_prevent interfer- ence on the part of a federal court when a receiver' has been appointed and quali- fied, although he has not taken actual possession of the property. Judgment (C. C. A. 1907), State of Texas v. Palmer. 158 F. 705, modified. Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. "We think the law of this court is well established to be that jurisdiction over the property was acquired by the state courts when the receiver was appointed, the judicial process served, and the re- ceiver duly qualified, although the state receiver had not taken actual possession of the property. This principle was rec- ognized in Farmers' Loan, etc.. Co. v. Lake St. Kiev. R. Co., 177 U. S. 51, 44 L. Ed. 667, 20 S. Ct. 564." Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. 549-42a. Not lost by appeal with su- persedeas. — Judgment (C. C. A. 1907), State of Texas v. Palmer, 158 F. 705, mod- ified. Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. Shields v. Coleman, distinguished. — "It is further contended that this case is con- trolled by the principles laid down in Shields V. Coleman. 157 U. S. 168. 39 L. Ed. 660, 15 S. Ct. 570. But in that case, before there was an attempt to appoint a receiver and take possession of^ the property by the second proceedings, the first receiver had been discharged and the property restored to the owner, who had given a bond for the forthcoming of the property to answer the judgment. In this case the receivership had merely been suspended when the application v/as made to the federal court, and the re- ceiver's bond was conditioned to account for the rental value of the property pend- ing the appeal." Palmer v. Texas, 212 U. S. 118, 53 L. Ed. 435, 29 S. Ct. 230. 552-58a. General rule.— Atlantic Trust Co. V. Chapman, 208 U. S. 300, 52 L. Ed. 528. 28 S. Ct. 406. 552-58b. Plaintiff not liable.— Atlantic Trust Co. T'. Chapman, 208 U. S. 360, 52 L. Ed. 528, 28 S. Ct. 406. The trustee in a mortgage of the prop- erty of a canal and irrigation company, who brings a suit for foreclosure and sale, and obtains the appointment of a re- ceiver to take charge of and manage the property pendente lite, does not, by rea- son of such action, become personally liable for money borrowed, expenses in- curred, and certificates issued by the re- ceiver under orders of the court, in keep- ing the corporation on its feet as a going concern, which the proceeds of the sale proved insufficient to pay. Judgment (1906), 145 F. 820. 76 C. C. A. 396, re- versed. Atlantic Trust Co. 7'. Chapman, 208 U. S. 360. 52 L. Ed. 528, 28 S. Ct. 406. 552-58C. Under peculiar circurpstances. —Atlantic Trust Co. v. Chapman, 208 U. S. 360, 52 L. Ed. 528, 28 S. Ct. 406. 'Tt is true that cases are cited in which the party bringing a suit in which a re- 1051 565 RECORDING ACTS. Vol. X. VII. Presentation, Allowance and Payment of Claims. A. Claims Allowable against Receivers — 2. Costs. — Costs of receivership should not be assessed against complainant on reversal of order appointing the receiver, where the receivership has gone on pending the appeal, but such costs should be paid out of the fund realized in court. ^-^^ RECEIVING STOLEN GOODS.— See the title Receiving Stolen Goods, vol. 10, p. 586, and references there given. RECIPROCITY TREATIES.— See post, Revenue Laws; Treaties. RECITALS. — See ante, Municipal, County, State and Federal Secur- ities, p. 906. RECLAMATION.— See ante, Public Lands, p. 1012. RECOGNIZANCE.— See ante, Bail and Recognizance, p. 166. RECORDATION.— See post, Recording Acts. RECORDING ACTS. II. Power to Enact, 1052. III. Construction, 1053. IV. What Instruments Are within the Acts, 1053. B. Instruments Relating to Realty, 1053. 5. Transfer of a Lease of Real Property, 1053. VII. Prerequisites to Recording, 1053. A. Execution and Acknowledgment or Proof, 1053. XI. Effect of Failure to Record, 1053. B. As Affecting Third Persons, 1053. 2. Purchasers and Mortgagees, 1053. a. Of Real Property, 1053. (1) Without Notice, 1053. (b) Failure to Record Notice of Pendencv of Suit, 1053. (c) Who Are Purchasers, 1053. 3. Creditors, 1053. CROSS REFERENCES. See the title Recording Acts, vol. 10, p. 587. In addition, see ante. Acknowledgments, p. 7; Bankruptcy, p. 168; Docu- mentary Evidence, p. 469. II. Power to Enact. Retail dealers are not denied due process of law, or the equal protection of the laws, by the provisions of a statute avoiding, as against creditors, sales by such dealers of their entire stock at a single transaction, and not in the regular course of business, unless notice of intention to make such sale be recorded seven days ceiver is appointed has been held liable the court, that that should be done." for expenses incurred by the receiver in Atlantic Trust Co. v. Chapman, 208 U. S. excess of the proceeds arising from the 360, 52 L. Ed. 528, 28 S. Ct. 406. sale of the property. But in most, if not 565-13a. Costs.— Judgment (C. C. A. in all, of those cases, the circumstances 1907), State of Texas v. Palmer, 158 F. were peculiar and were such as to make 705, modified. Palmer v. Texas, 212 U. S. it right and equitable, in the opinion of 118, 53 L,. Ed. 435, 29 S. Ct. 230. 1052 Vol. X. RECORDIXG ACTS. 588-597 before its consummation, but such statute is a valid exercise of the police power of the state. -^ ni. Construction. See note 3. rV. What Instruments Are within the Acts. B. Instruments Relating to Realty — 5. Traxsfer of a Lease of Real Property. — A transfer of a lease of real property which, among other obliga- tions imposed on the lessee, stipulates for the immobilization of machinery to be installed by the tenant, is a contract concerning real rights to immovable property, within the purview of a statute which provides that "the titles of ownership or of other real rights relating to immovables which are not properly inscribed or an- notated in the registry of property, shall not be prejudicial to third parties. "^^ A. VII. Prerequisites to Recording. Execution and Acknowledgment or Proof. — See note 15. XI. Effect of Failure to Record. B. As Affecting Third Persons — 2. Purchasers axd ^Iortgagees — ■ a. Of Real Property — (1) Without Xoticc — (b) Failure to Record Notice of Pendency of Suit. — See note 32. ( c) Who Are Purchasers. — See note oZ. 3. Creditors. — See note 43. 588-2a. Act held constitutional.— So held as to Conn. Gen. Laws, §§ 486S, 4869, Lemieux v. Young, 211 U. S. 489, 53 L. Ed. 295, 29 S. Ct. 174. See ante, COXSTITUTIOXAL LAW, p. 264; DUE PROCESS OF LAW, p. 475; PO- LICE POWER, p. 955. 588-3. The exception of the province of Benguet from the operation of the Philippine Commission's Act of 1903, No. 926, relating to the registration of land titles, does not apply to one who claims present ownership of land in that province; but he is entitled to registra- tion, if his claim of ownership can be maintained, under the Commission's Act of 1902, No. 406, establishing a court for registration purposes, with jurisdiction "throughout the Philippine archipelago." and authorizing, in general terms, appli- cations to be made by persons claiming to own the legal estate in fee simple. Carino v. Insular Government, 212 U. S. 449. 53 L. Ed. 594, 29 S. Ct. 334. 589-8a. Transfer of a lease of real property. — Civil Code of Porto Rico, § 613. Valdes v. Central Altagracia, 225 U. S. 58, 56 L. Ed. 980. 32 S. Ct. 664. 590-15. A conveyance of a mining claim in Alaska is not entitled to registration under the Act of June 6, 1900. title 1. § 15, title 3, §§ 82. 95, where it has but one witness, and the only acknowledg- ment was taken before an alteration, made by consent of the parties. Waskev V. Chambers, 224 U. S. 564. 56 L. Ed. 885. 32 S. Ct. 597. 594-32. Under the local statutory law of Porto Rico. — Knovlcdge of the pend- ency of a suit to subject real property registered in the name of an alleged fraudulent grantee to the payment of a judgment against the grantor, and of the right to apply to the court for the statu- tory cautionary notice, does not deprive a purchaser having such knowledge of the attitude of an innocent third party, and subject the property in his hands to a responsibility for the result of the suit to the extent which would have been the case had such notice been demanded and recorded. Todd z\ Romeu, 217 U. S. 150, 54 L. Ed. 705, 30 S. Ct. 474. 595-33. A lessee in possession of a mining claim in Alaska under an agree- ment to work the same continuously, and pay over to the lessor a percentage of the minerals extracted, is a purchaser for a valuable consideration, within the meaning of the Act of June 6. 1900 (31 Stat, at L. 321, 505, chap. 786), title 3, § 98, providing that every unrecorded conveyance of real property shall be void against anj' subsequent innocent pu.r- chaser, in good faith and for a valuable consideration, of the same real property or any portion thereof, whose convey- ance shall be first duly recorded. Waskey v. Chambers, 224 U. S. 564, 56 L. Ed. 88.5, 32 S. Ct. 597. See. also. ante. MIXES AXD MIXERALS. p. 865. 597-43. Unrecorded mortgage valid as against creditors having no specific lien — Statute construed. — Subsequent credit- ors without notice of an unrecorded chattel mortgage, who have not secured any specific lien upon the mortgaged property by execution, attachment, or 1053 598-623 REGULATE— REGULATION. Vol. X. RECORDS. III. Judicial Records, 1054. Ay2. Form, 1054. B3/2. Time within Which ^Minute Entries ^for Term ]\Iust Be Completed, 1054. CROSS REFERENCES. ' See the title Records, vol. 10, p. 597, and references there given. In addition, see post, Res Adjudicata. III. Judicial Records. Al. Form. — Minute entries by a federal circuit court clerk in a record rec- ognized by the court as its minutes are valid though made with a rubber stamp.^^ B|. Time within Which Minute Entries for Term Must Be Completed. — Tlie clerk of a federal circuit court has until the end of term in which to complete the minute entries for the term.*^^ RECOUPMENT. — See post, S^t-Off", Recoupment and Counterclaim. REDELIVERY BOND.— See post. Replevin. REFEREE. — See ante, Bankruptcy, p. 168; post, Reference. REFERENCE. III. When Proper, 1054. B. Reference of Pending Actions under Rule of Court by Consent of Parties, 1054. 1. In General, 1054. CROSS REFERENCES. See the title Reference, vol. 10, p. 600. and references there given. III. When Proper. B. Reference of Pending Actions under Rule of Court by Consent of Parties — 1. In General. — See note 15. REFERENDUM.— See ante, Constitutional Law, p. 264. REGULATE— REGULATION.— See note 3. otherwise, are not comprehended by the state of West Virginia, which seeks an term "creditors," as used in Ky. Stat. adjudication of the amount due the 1903, § 496, which provides that no un- former state by the latter as the equitable recorded mortgage shall be valid against proportion of the public debt of the a purchaser_ for a valuable consideration, original state of Virginia, which was as- without notice thereof, or against credit- sumed by the state of West Virginia at ors*. Holt V. Crucible Steel Co., 224 U. the time of its creation as a state. Com- S. 2G2, 56 L. Ed. 756, 32 S. Ct. 414. See monwealth v. West Virginia, 209 U. S. ante, CHATTEL MORTGAGES, p. 230. 514, 52 L. Ed. 914. 28 S. Ct. 614. 598-5a. Minute entries made with a 623-3. Regulation of commerce.— In the rubber stamp. — Harlan v. McGourin. 218 constitutional provision Lonrernng upon U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44, af- congress the power to regulate commerce firming 180 Fed. Rep. 119. * * "* among the several states, "to reg- 598-6a. Clerk has until end of term to ulate," in the sense intended, is to foster, complete entries. — Harlan v. McGourin, protect, control and restrain, with appro- 218 U. S. 442, 54 L. Ed. 1101, 31 S. Ct. 44, priate regard for the welfare of those affirming 180 Fed. Rep. 119. who are immediately concerned and of 604-15. Reference in suits between the public at large. Second Employers' states in federal court. — Reference to a Liability Cases, 223 U. S. 1. 46. 56 L. Ed. special master decreed in a suit besjun 327, 32' S. Ct. 169. See ante, INTER- by an original bill in equity, filed by the STATE AND FOREIGN COMMERCE, commonwealth of Virginia against the p. 689. 1054 Vol. X. RELIGIOUS SOCIETIES. 635 REHEARING. — See the title Rehearinx, vol. 10, p. 624, and references there given. As to opening judgment to let in defendant served only by pub- lication, see ante. Judgments and Decrees, p. 807. As to raising federal ques- tion in motion for rehearing in lower court, see ante, Appeal and Error, p. 34. RELATION. — See references under Relation, vol. 10, p. 632. RELEASE. II. Operation; Construction, 1055. C. Construction; Matters Included in Release, 1055. CROSS REFERENCES. See the title Release, vol. 10, p. 633, and references there given. II. Operation; Construction. C. Construction; Matters Included in Release. — A\here a release pro- vides that it shall not include claims, arising under a contract, over which the secretary of the navy has no jurisdiction, it will be construed not to include such claims; although the release, if in the form specified in the contract, would have extinguished all claims growing out of such contract.'^'' RELEVANCY.— See ante. Evidence, p. 558. RELIEF AGAINST JUDGMENT.— See ante. Judgments and Decrees, p. 80/". RELIGIOUS LIBERTY.— See ante. Civil Rights, p. 236; Constitutional Law, p. 264. RELIGIOUS SOCIETIES. I. Creation and Establishment, 1055. V. Property and Funds, 1056. A. Acquisition and Title, 1056. 1. Right to Acquire and Retain, 1056. E. Conveyances — Condition Subsequent, 1056. VIII. Actions by or Against, 1057. CROSS REFERENCES. See the title Religious Societies, vol. 10, p. 638, and references there given. In addition, see ante. Courts, p. 398. I. Creation and Establishment. Nature and Status of the Roman Catholic Church. — The Roman Cath- olic Cliurch in Porto Rico must be regarded as a legal personality, with capacity 635-6a. Matters included — Claim for the construction of the vessel under the unliquidated damages. — Cramp & Sons contract, provided that the release shall Ship, etc., Bldg. Co. v. United States, not be taken to include claims arising 216 U. 8. 494, 54 L. Ed. 587, 30 S. Ct. 392. under the contract other than those Claims for unliquidated damages on which the secretary of the navj^ has ju- account of extra work caused by the fed- risdiction to entertain, although the re- eral government are not included in a lease, if in the form specified in the con- release given to the United States by tract, would have extinguished all claims the builders of a battleship, of all and all against the United States growing out manner of debts, dues, sum and sums of of such contract. Cramp & Sons Ship, money, accounts, reckonings, claims, and etc., Bldg. Co. v. United States, 216 U. demands whatsoever, in law or in equity, S. 494, 54 L. Ed. 587, 30 S. Ct. 392. See for or by reason of, or on account of, post, WORKING CONTRACTS. 1055 639-641 RELIGIOUS SOCIETIES. Vol. X. to sue and to take and hold property, in view of the law and history of the Roman Empire, of Spain, and Porto Rico down to the time of the cession to the United States, and of the recognition accorded to it as an ecclesiastical body by the treaty of Paris December 10, 1898, art. 8, and by the law of nations. ^^ Formation and Regulation. — The various laws of Porto Rico relating to the formation and regulation of business corporations have no application to the Roman Catholic Church of Porto Rico.^** V. Property and Funds. A. Acquisition and Title — 1. Right to Acquire and Retain. — The Ro- man Catholic Church in the Philippine Islands is a legal personality, with capacity to hold property acquired by gift.^^^ And the fact that such property was ac- quired from gifts even of public funds does not effect the absoluteness of this E. Conveyances — Condition Subsequent. — A condition in a transfer by the American board of commissioners for foreign missions to the Hawaiian gov- ernment, that definite Christian doctrines should be taught — namely, doctrines which constitute the belief of the Congregational and Presbyterian churches of the United States — is not satisfied by the teaching of merely some form of gen- eral evangelical Christianity.-^^ 639-la. Nature and status of the Ro- man Catholic Church. — Ponce v. Roman Catholic Apostolic Church, 210 U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. See post, "Right to Acquire and Retain," V, A, 1. 639-lb. Formation and regulation. — Ponce V. Roman Catholic Apostolic Church, 210 U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. 640-14a. Right of Roman Catholic Church to hold property. — Santos v. Holy Catholic, etc., Church, 212 U. S. 463, 53 L. Ed. 599, 29 S. Ct. 338; Ponce V. Roman Catholic Apostolic Church, 210 U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. 640-14b. Right not affected by fact property acquired from gifts of public funds. — Santos v. Holy Catholic, etc., Church, 212 U. S. 463, 53 L. Ed. 599, 29 S. Ct. 338; Ponce v. Roman Catholic Apostolic Church. 210 U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. The title of the Roman Catholic Church in Porto Rico to temples erected and dedicated to religious uses is not af- fected by the fact that some of the funds for building or repairing the churches were public funds, appropriated for that purpose by the municipality of Ponce, where such appropriations were made without reservation or restriction. Mu- nicipality of Ponce v. Roman Catholic Apostolic Church, 210 U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. 641-21a. Condition subsequent — Re- ligious instructions. — Lowrey v. Hawaii, 215 U. S. 554, 54 L. Ed. 325, 30 S. Ct. 209. Religious teaching and training in the doctrines represented by the mission are required to satisfy the condition on which such mission was transferred by the American Board of Commissioners for Foreign Missions to the Hawaiian gov- ernment, viz, that the government should continue the same as an institution for the cultivation of sound literature and solid science, and should teach no re- ligious tenet or doctrine contrary to those theretofore inculcated by the mis- sion, as set forth in a confession of faith, where the government knew, when ac- cepting the transfer of the mission to its "fostering care and patronage," that the mission was founded to convert the Hawaiians to Christianity, and to educate young men to be christian ministers, and for nearly 30 years recognized its obli- gation under the agreement to afford religious instruction in those doctrines. Lowrey v. Hawaii, 215 U. S. 554, 54 L. Ed. 325, 30 S. Ct. 209. Right to enforce condition subsequent. — The right to receive a reconveyance of the school, or of the stipulated sum in lieu of such reconveyance, in case of the breach of the condition on which a Protestant mission was transferred by the American Board of Commissioners for Foreign Missions to the Hawaiian government, viz, that the government should continue the same as an institu- tion for the cultivation of sound litera- ture and solid science, and should teach no religious tenet or doctrine contrary to those theretofore inculcated- by the mission, as set forth in a confession of faith, passed under a deed from such board to certain named trustees, which purports to convey, for the purposes of the trust, every interest in the property which the grantor had, reserving to the grantor the right to direct any change 1056 \'ol. X. ■ REMITTITUR. 641-649 VIII. Actions by or Against. The Roman Catholic Church in Porto Rico must be regarded as a legal person- ality, with capacity to sue.-'*'' REMAINDERS, REVERSIONS AND EXECUTORY INTERESTS. I. Remainders, 1057. D. Classes of Remainders. 1057. 1. \"ested Remainders, 1057. b. Remainders Construed as \'ested Rather than Contingent, 1057. (2) Words Importing Time of Enjoyment Rather than Con- tingency, 1057. c. A^ested Remainder Subject to Divesting Contingency, 1057. CROSS REFERENCES. See the title Remainders, Reversioxs and Executory Ixterests, vol. 10, p. 642, and references there given. As to remainder as used in a family settlement, see ante, DescKxt axd Distri- BUTiox, p. 463. I. Remainders. D. Classes of Remainders — 1. \'ested Remaixders — b. Remainders Construed as J'ested Rather than Contingent — (2) Words Importing Time of Enjoyment Rather than Contingency. — See note 25. c. rested Remainder Subject to Divesting Contingency. — See note 28. REMAND. — See ante, ^Iaxdate axd Proceedixgs Thereox, p. 848; post. Removal of Causes. REMITTITUR.— See the title Remittitur, vol. 10, p. 658, and references there given. or alteration in the disposition of the death, leaving descendants, before the ex- income and proceeds of the trust estate, piration of the preceding estates, where or to remove any trustee, or fill any va- the testator, after making separate pro- cancy. Lowrey v. Hawaii, 215 U. S. 554, visions for his sons and daughters, de- 54 L. Ed. 325, 30 S. Ct. 209. vised the homestead to his wife for life, 641-24a. Capacity to sue. — Ponce v. with remainder over to his daughters, Roman Catholic Apostolic Church. 210 "being single and unmarried, and to U. S. 296, 52 L. Ed. 1068. 28 S. Ct. 737. the survivor and survivors of them so 648-2.5. Words directing land to be long as they shall be and remain single conveyed or divided at expiration of par- and unmarried,'' and directed that upon ticular estate. — Johnson v. Washington the death or marriage of the last of Loan, etc., Co., 224 U. S. 224, 56 L. Ed. them, the property should be sold and 741, 32 S. Ct. 421. the proceeds distributed '"among my The daughters surviving the testator daughters living at my death, and their took at his death a vested remainder in children and descendants (per stirpes)." fee in the homestead, to take effect in Johnson v. Washing-ton Loan, etc., Co., possession upon the marriage of all of 224 U. S. 224, 56 L. Ed. 741, 32 S. Ct. 421. them, or the death of the last unmarried 649-28. Divesting of estate not favored. daughter, which remainder was not de- — Johnson :■. Washington Loan, etc., Co., feasible as to any one of them by her 224 U. S. 224, 5G L. Ed. 741, 32 S. Ct. 421. 12 U S Enc— 67 1057 666 REMOVAL OF CAUSES. Vol. X. REMOVAL OF CAUSES. I. Definition, Nature and General Consideration, 1058. G. Waiver of Right to Remove, 1058. H. Estoppel to Contest Removability, 1059. III. Grounds for Removal, 1059. A. Controversies Arising under the Constitution or Laws of the United States, 1059. 1. General Statement, 1059. 4. Suits Involving Corporations Created under Laws of United States, 1059. 10. Transaction upon Which Right to Recover Is Based Prohibited by Federal Statutes, 1059. B. Diversity of Citizenship, 1060. 2. Where a Corporation Is a Party, 1060. 4. Where a State Is a Party, 1060. 9. Waiver of Objection to Jurisdiction, 1060. C. Separable Controversies, 1060. 1. Statement of the Rule, 1060. 2. How Separability Determined, 1060. E. Jurisdictional Prerequisites Fundamental, 1061. VI. Proceedings for Removal, 1061. B. Time for Application, 1061. E. Decision of State and Federal Courts as to Removability, 1062. F. Order of Removal, 1062. VII. Effect of Removal Proceedings, 1062. B. Divestiture of Jurisdiction of State Court, 1062. D. Where Removal Is Not Effected, 1062. E. Jurisdiction Acquired by Federal Court, 1062. 1. In General, 1062. VIII. Remand to State Court, 1062. H. Second Application for Removal after Remand, 1062. XI. Waiver of Objection to Jurisdiction of Court to Which Cause Has Been Removed, 1063. CROSS REFERENCES. See the title Removal of Causes, vol. 10, p. 663, and references there given. In addition, see ante. Appeal and Error, p. 34; Certiorari, p. 228; Courts, p. 398; Mandamus, p. 838; post. Summons and Process. I. Definition, Nature and General Consideration. G. Waiver of Right to Remove. — See note 13. 666-13. Waiver of right to remove. — by the federal court, where the plaintiff, The restoration of the jurisdiction of a before any order was made in the state state court after one of the original de- court, or the record filed in the federal fendants had filed its petition and bond court, had an order entered in the state for the removal of a separable contro- court, dismissing his action against the versy to a federal circuit court was ef- removing defendant and certain others fected by action and conduct equivalent having a like ground of removal, the or- to a formal waiver of new process and der reciting that, in consideration of such new pleadings or any formal remainder dismissal, the petition for removal was 1058 Vol. X. REMOVAL OP CAUSES. 667-676 H. Estoppel to Contest Removability. — See note 15. Where a removal is upon the appHcation of his opponent, a party may, by his conduct thereafter, be estopped from objecting to the jurisdiction of the court to which the cause is removed.^ 5^ ni. Grounds for Removal. A. Controversies Arising under the Constitution or Laws of the United States — 1. General Statement. — A suit arises under the constitu- tion and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that constitution. It is not enough, as the law now exists, that it appears that the defendant may find in the constitution or laws of the United States some ground of defensc^^"^ 4. Suits Involving Corporations Created under Laws of United States. — An action brought against a corporation chartered under an act of congress and a local defendant, upon a joint liability, is a suit arising under the laws of the United States, and, as such, is removable from a state court to a federal circuit court on petition of both defendants. ^•^'^ The right of a federal corporation when sued in a state court, to remove the cause to a federal circuit court, as being one arising under the federal laws, is lost by bringing into the suit a cause of action against another corporation, with which plaintiff has no concern, and recovering judgment therein. ^•^'' 10. Transaction upon Which Right to Recover Is Based Prohibited by Federal Statutes. — That one against whom suit is brought relies for his defense upon provisions contained in certain federal statutes as establishing that the trans- action upon which the right to recover is based is prohibited by law only demon- strates that the suit can not be maintained at all, and not that the cause of action arises under the constitution or laws of the United States. ^i"" withdrawn, and thereafter the case was proceeded with against the remaining defendants to verdict and judgment with- out any objection by either the plaintifif or the remaining defendants. Anderson V. United Realty Co., 322 U. S. 164, 56 L. Ed. 144, 32 S. Ct. 50, affirming judgment in 86 N. E. 644, 79 Ohio St. 23. 667-15, Estoppel to contest remov- ability.— In re Moore, 209 U. S. 490, 52 L. Ed. 904, 28 S. Ct. 585. 667-15a. Plaintiff must be deemed to have consented to accept the jurisdiction of a federal circuit court over a suit re- moved from a state court on defendant's petition, where, after the removal, plain- tiff, instead of moving to remand, filed an amended petition in the federal court, signed a stipulation giving time to the defendant to answer, and entered with the defendant into successive stipulations for continuances. In re Moore, 209 U. S. 490, 52 L. Ed. 904, 28 S. Ct. 585. 671-35a. When suit arises under con- stitution and laws of United States. — In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515. Allegations, in the petition for the re- moval to a federal circuit court of a suit against an interstate express company, that the defendant was subject to the federal laws to regulate commerce, and, under those laws, had a defense to the cause of action, will not justify removal on the ground that the cause is one aris- ing under the federal constitution and laws, where the cause of action itself is not based upon the interstate commerce act or any other federal law. In re Winn, 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515. 674-43a. Action brought against cor- poration chartered under an act of con- gress. — Texas, etc., R. Co. v. Eastin, 214 U. S. 153, 53 L. Ed. 946, 29 S. Ct. 564, affirming 100 Tex. 556, 102 S. W. 105. An action brought against a corpora- tion created by an act of congress and against two of its employees to establish a joint liability for negligence is, as to the individual defendants, as well as to the corporation, a suit arising under the federal constitution or laws, within the meaning of the removal provisions of Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), and is there- fore removable to a federal circuit court on petition of all the defendants. In re Dunn, 212 U. S. 374, 53 L. Ed. 558, 29 S. Ct. 299. 674-43b. Texas, etc., R. Co. v. Eastin, 214 U. S. 153, 53 L. Ed. 946, 29 S. Ct. 564, affirming 100 Tex. 556, 102 S. W. 105. 676-51a. Transaction upon which right of recovery based prohibited by federal statutes. — Williams v. First Nat. Bank, 216 U. S. 582. 54 L. Ed. 625, 30 S. Ct. 441, affirming 20 Okl. 274, 95 Pac. 457. An action on a promissory note by one claiming as a bona fide holder for value before maturity does not arise under the 1059 678-683 REMOVAL OF CAUSES. Vol. X. B. Diversity of Citizenship — 2. Where; a Corporation Is a Party. — A corporation organized and existing under and by virtue of the laws of several states, including the one in which suit against it is brought, must be regarded as a citizen of the latter state for the purpose of determining its right to remove the cause to a federal circuit court, especially where the constitution and laws of that state require that a majority of the directors shall be. residents, and that the cor- poration shall keep a general office in the state.^"^ 4. Where a State Is a Party. — The mere presence on the record of a state as a party plaintiff will not defeat the jurisdiction of a federal circuit court to which the cause has been removed from a state court, on the ground of a diver- sity of citizenship, if it appears that the state has no real interest in the contro- versy.^^*^ 9. Waiver of Objection to Jurisdiction. — So long as diverse citizenship exists the circuit courts of the United States have a general jurisdiction. That jurisdiction may be invoked in an action removed from a state court; and, if any objection arises to the particular court which does not run to the circuit courts as a class, that objection may be waived by the party entitled to make it.*^^" C. Separable Controversies — 1. Stateme.nt of the Rulk. — See notes 71, 72. A separable controversy exists, removable to a federal court by a foreign corporation, joined as a party defendant to a suit to foreclose a mortgage, where both mortgagor and mortgagee, who are citizens of the state, unite in attacking the validity of a prior mortgage in favor of such corporation on" the ground that it was doing business without complying with state laws, and that the secured note embraced charges exacted because of an illegal combination in restraint of trade.'^^^ 2. How Separability Dete;rmine;d. — See notes 76, 78. constitution or laws of the United States, so as to be removable to a federal circuit court under the Oklahoma enabling act (Act June 16, 1906, c. 3335, § 16, 34 Stat. 276), as amended by Act March 4, 1907, c. 2911, § 1, 34 Stat. 1286, because the makers of the note relied for their de- fense upon provisions of certain federal statutes as establishing that the trans- action upon which the right to recover was based was prohibited by law, which would only demonstrate that the suit could not be maintained at all, and not that the cause of action arose under the federal constitution or laws. Judgment (H)08), 95 P. 457, 20 Okl. 274, affirmed. Williams z-. First Nat. Bank, 216 U. S. 582, 54 L. Ed. 625, 30 S. Ct. 441. 6/8-57a. Where a corporation is a party.— Patch v. Wabash R. Co., 207 U. S. '?77, 52 L. Ed. 204, 28 S. Ct. 80. P 9-61a. Effect of a state being a nomi- nal party. — Ex parte Nebraska, 209 U. S. 436 52 L. Ed. 876, 28 S. Ct. 581. 680-69a. Waiver of objection to juris- diction of particular circuit court. — In re Moore, 209 U. S. 490, 52 L. Ed. 904, 28 S. Ct. 585. Consent of both parties waives all ob- jec<-i'ons to the jurisdiction of a federal circtiit court to which has been removed from a state court, for diverse citizen- shin, a suit which, bj' reason of the non- residence of both parties, could not, in view of Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), have been brought in that particular fed- eral circuit court in the first instance. In re Moore, 209 U. S. 490, 52 L. Ed. 904, 28 S. Ct. 585. 681-71. Case not removable unless wholly between citizens of different states. — "The case can not be removed unless it is one which presents a sepa- rable controversy whollj'' between citi- zens of different states." Chicago, etc., R. Co. V. Willard, 220 U. S. 413, 55 L. Ed. 521, 31 S. Ct. 460; Southern R. Co. v. Miller, 217 U. S. 209, 54 L. Ed. 732, 30 U. S. 209, 54 L. Ed. 732, 30 S. Ct. 450, af- firming 3 Ga. App. 410, 59 S. E. 1115. 681-72. Complete relief without pres- ence of others originally made parties. — Southern R. Co. v. Miller, 217 U. S. 209, 54 L. Ed. 732, 30 S. Ct. 450, affirming 3 Ga. App. 410, 59 S. E. 1115. 683-75a. Separable controversy remov- able by foreign corporation joined as de- fendant. — Fritzlen t'. Boatmen's Bank, 212 U. S. 364, 53 L. Ed. 551, 29 S. Ct. 366, afinrming 75 Kan. 479, 89 Pac. 915. 683-76. How separability determined. — Chicago, etc., R. Co. r. Willard, 220 U. S. 413. 55 L. Ed. 521, 31 S. Ct. 460, af- firming 165 Fed. Rep. 181, 91 C. C. A. 215. "It has been too frequently decided to be now questioned that the plaintiff may 1060 Vol. X. REMOVAL OP CAUSES. 684-687 Fraudulent joinder of a resident with a nonresident defendant, for the purpose of defeating the removal of the cause to a federal court, can not be es- tablished, where, by the settled law of the state in which the action was brought, and in which the cause of action arose, both defendants were jointly liable to suitJ''^ In the case of a tort which gives rise to a joint and several liability, the plaintiff has an absolute right to elect, and to sue the tort feasors jointly if he sees fit, no matter what his motive, and therefore an allegation that the joinder of one of the defendants was fraudulent, without other ground for the charge than that its only purpose was to prevent removal, would be bad on its face.''^'' E. Jurisdictional Prerequisites Fundamental. — See note 94. VI. Proceeding's for Removal. B. Time for Application. — A petition to remove a cause from a state to a elect his own method of attack, and the case which he makes in his declaration, bill, or complaint, that being the only pleading in the case, is to determine the separable character of the controversy for the purpose of deciding the right of removal." Chicago, etc., R. Co. v. Wil- lard, 220 U. S. 413, 55 L. Ed. 521, 31 S. Ct. 460; Southern R. Co. v. Miller, 217 U. S. 209, 54 L. Ed. 732, 30 S. Ct. 450, af- firming 3 Ga. App. 410, 59 S. E. 1115. A case in which plaintiff has elected, in conformity with the settled law of the state, to sue jointly in tort a nonresident lessee railway company, exclusively operating, controlling, and managing the road, and its resident corporate lessor, upon a cause of action arising in the state, out of the negligent operation of the road, can not be rem.oved to a fed- oral circuit court as presenting a sepa- rable controversy between the plaintiff and the lessee, although the lessor may have been joined for *-he purpose of ex- cluding the federal jurisdiction. Chicago, etc., R. Co. V. Willard, 220 U. S. 413. 55 L. Ed. 521, 31 S. Ct. 460, affirming judg- ment (1908), Willard v. Chicago B. & Q. R. Co., 165 F. 181, 91 C. C. A. 215. A suit in which plaintiff, in good faith, has joined as for a joint liability in tort a foreign railway corporation and cer- tain of its resident employees whose neg- ligence caused the injury complained of, is not removable to a federal circuit court as presenting a separable contro- versy between the plaintiff and the cor- porate defendant. Judgment (1908), 59 S. E. 1115, 3 Ga. App. 410, affirmed. Southern R. Co. z'. Miller, 217 U. S. 209, 54 L. Ed. 732, 30 S. Ct. 450. 684-78. Fraudulent joinder of resident defendant. — Illinois Cent. R. Co. t'. Shee- gog, 215 U. S. 308, 54 L. Ed. 208, 30 S- Ct. 101, affirming 126 Ky. 252, 103 S. W. 323. 684-79a. When fraudulent joinder for purpose of defeating removal can not be established. — Chicago, etc., R. Co. t'. Wil- lard, 220 U. S. 413^ 55 L. Ed. 521, 31 S. Ct. 460, affirming 165 Fed. Rep. 181, 91 C. C. A. 215. 684-79b. Illinois Cent. R. Co. v. Sliee- gog, 215 U. S. 308, 54 L. Ed. 208, 30 S. Ct. 101. Allegations in the removal petition that the lessor railway company and the con- ductor of the train were fraudulently joined as party defendants solely for the purpose of preventing a removal to a federal circuit court for diverse citizen- ship, of an action commenced in a Ken- tucky court, against the nonresident rail- way company exclusively operating the road, to recover for the death of an en- gineer, caused by the alleged negligent operation of the train and the defective condition of the road, are not sufficient to entitle the petitioner to the removal of the cause, where, in Kentucky, the facts alleged and. proved against the lessee railway company in the state covirt made its lessor jointly liable as a matter of law. Judgment, Illinois Cent. R. Co. of State of Illinois z'. Sheegog's Adm'r, 103 S. W. 323, 126 Ky. 252, affirmed. Illi- nois Cent. R. Co. v. Sheegog, 215 U. S. 308, 54 L. Ed. 208, 30 S. Ct. 101. 687-94. Presumption that jurisdictional fact was presented to court. — The pre- sumption will be indulged that the juris- dictional fact of the Indian citizenship of the accused in a homicide case was pre- sented to the United States court in the Indian territory, and constituted the ground of its order changing the venue, pursuant to the Act of June 28, 1898 (30 Stat, at L. 511, chap. 517), § 29, to the federal district court at Paris, Texas, where such citizenship is admitted, and the affidavit upon which the order of re- moval was made is not in the record, and the order recited that the court granted the motion, "being well advised in the premises," and it is stated in the affi- davit of the attorney for the accused, filed in support of a motion to send the case back to Oklaiioma, that the motion for removal was made "under the federal statute permitting said removal to be made." Hendrix z: United States, 219 U. S. 79, 55 L. Ed. 102, 31 S. Ct. 193. lOGl 701-708 REMOVAL OF CAUSES. Vol. X. federal court is in time when filed as soon as the petitioner learns of the filing, without notice, of additional pleadings in the state court, the effect of which is to disclose a removable controversy.'^'^ E. Decision of State and Federal Courts as to Removability.— See note 86. F. Order of Removal. — The form and sufficiency of the order of removal is to be determined by an interpretation of the statute under which it is made.^^^ VII. Effect of Removal Proceedings. B. Divestiture of Jurisdiction of State Court. — The voluntary dis- missal of an action which has been removed from a state court to a federal circuit court does not preclude a subsequent suit on the same cause of action in the state court.'*"'' D. Where Removal Is Not Effected. — The dismissal against the conten- tion of plaintitl after the expiration of the time prescribed by statute for the re- moval of causes from the state to the federal court of an action which was brought against a resident and a nonresident, so far as it afi:ects the former, does not de- prive the state court of jurisdiction to proceed with the cause against the latter, or entitle him to remove the cause to the federal court. i'^ E. Jurisdiction Acquired by Federal Court — 1. In General. — See note 4. VIII. Remand to State Court. H. Second Application for Removal after Remand. — An order remand- ing a cause to the state court whence it was removed does not control the right 701-74a. When petition is filed in time. — Fritzlen v. Boatmen's Bank, 212 U. S. 364, 53 L. Ed. 551, 29 S. Ct. 3G(3. 703-86. The state courts have no juris- diction to pass finally upon facts stated in a petition for the removal of a cause from a state to a federal court, since that is the exclusive province of the federal court. Judgment (1907), 102 S. W. 105, 100 Tex. 556, affirmed. Texas, etc., R. Co. V. Eastin, 214 U. S. 153, 53 L. Ed. 946, 29 S. Ct. 564. A federal circuit court has the right to determine the question of the right to remove a case from a state court inde- pendently of the jurisdiction and de- termination of the state courts, in view^ of the provisions of Removal Act March 3, 1875, c. 137, §§ 3, 5, 7, 18 Stat. 471, 472 (U. S. Comp. St. 1901, pp. 510, 512), that, a petition and bond being entered in the circuit court, the cause shall pro- ceed in the same manner as if originally commenced there, that such court may remand and dismiss the case if it does not really and substantially involve a dis- pute or controversy pr-jperly within its jurisdiction, or if there is improper and collusive joinder of parties, and may is- sue certiorari to compel the state court to make return of the record and enforce such writ. Judgment (1907), ]\Iaysville & B. S. R. Co. z'. McCabe's Adm'x, 100 S. W. 219, 30 Ky. Law Rep. 1009, re- versed. Chesapeake, etc., R. Co. v. Mc- Cabe, 213 U. S. 207, 53 L. Ed. 765, 29 S. Ct. 430. 703-86a. Order of removal.— The fed- eral district court at Paris, Texas, can not be said to have been without juris- diction to try a member of the Choctaw and Chickasaw Nation charged with homicide, because the order of the United States .court in the Indian ter- ritory, changing the venue, pursuant to the Act of June 28, 1898 (30 Stat, at L. 511, chap. 517), § 29, did not state whether the cause was transferred to the federal district or circuit court, but only to the "United States court'' at that place. where the district court was the only court to which the case could have been removed under the statute, and the record was transferred to and filed in that court, and the case was tried there. Hendrix v. United States. 219 U. S. 79, 55 L. Ed. 102, 31 S. Ct. 193. 707-96a. Voluntary dismissal of action after removal. — Southern R. Co. v. Miller, 217 U. S. 209, 54 L. Ed. 732, 30 S. Ct. 450. 708-la. Dismissal of action against resident and nonresident after time pre- scribed for removal- — Latlirop, etc., Co. V. Interior Const., etc., Co., 143 Fed. 687, reversing 150 Fed. Rep. 666. 708-4. The validity of the service of process upon a foreign corporate de- fendant is open in a federal circuit court after the cause has been removed to that court from a state court on the petition of such defendant. ^Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 54 L. Ed. 272, 30 S. Ct. 125. 1062 Vol. X. REPLEVIN. 715-716 to make a second application for removal if it results from the subsequent plead- ings or the conduct of the parties that the cause becomes a removable one.-^^'' XL Waiver of Objection to Jurisdiction of Court to Which Cause Has Been Removed. A general appearance by plaintiff in a federal circuit court after the cause has been removed from a state court does not waive an objection to jurisdiction founded on the total lack of any controversy of a federal nature, since in such cases consent of both parties can not confer jurisdiction.^^'^ RENDITION OF JUDGMENT.— See ante, Judgments and Decrees, p. 807. RENT. — See ante, Landlord and Tenant, p. 820. REPAIR.— See note 1. REPEAL OF STATUTES.— See post, Statutes. REPLACEMENT.— See ante, Repair, p. 1063. REPLEVIN. 11. Right of Action, 1063. B. Property Subject to Replevin, 1063. 4. Property in Custody of the Law, 1063. c. Property in Possession of Referee in Bankruptcy, 1063. IV. Procedure, 1064. E. The Bond, 1064. 2. Defendant's Redelivery Bond, 1064. VI. Liability on Bonds and Undertakings, 1064. A. Replevin Bonds, 1064. 1. Accrual or Release of Liability, 1064. f. Change in Remedy of Procedure, 1064. 3. Actions, 1064. a. Condition Precedent, 1064. h. Question for Jury, 1064. 4. Conclusiveness of Adjudication in Replevin Proceedings, 1064. CROSS REFERENCES. See the "title Replevin, vol. 10, p. 717, and references there given. II. Right of Action. B. Property Subject to Replevin — 4. Property in Custody oe the Law — c. Property in Possession of Referee in Bankruptcy. — As to elTect of adjudi- 713-39a. Second application for removal are sufficient to justify the granting of a after remand. — Fritzlen v. Boatmen's second application for removal. Fritzlen Bank, 2] 2 U. S. 364, 53 L. Ed. 551, 29 S. v. Boatmen's Bank, 212 U. S. 3G4. 53 Ct. 366. L. Ed. 551, 29 S. Ct. 360. Changes in the pleadings in an action 715-44a. Objection not waived by gen- to foreclose a mortgage after the cause eral appearance of plaintiff. — In re Winn, has been remanded to the state court 213 U. S. 458, 53 L. Ed. 873, 29 S. Ct. 515. whence it had been removed, which show 716-1. Repair and replacement.^As to the untruth of the averment in the peti- repair and replacement meaning restora- tion of the junior character of another lion of worn out parts, when pertaining mortgage held by a foreign corporation to patents, see Leeds, etc., Co. v. Victor which was made a party defendant, and Talking Mach. Co., No. 2, 213 U. S. 325, the existence of a separable controversy 336, 53 L. Ed. 816, 29 S. Ct.,503. See, also, between such corporation and the other ante, PATENTS, p. 936. parties, who are all citizens of the state. 1063 725-727 REQUISITION. Vol. X. cation in bankruptcy as bar to an action of replevin in state court to recover prop- erty in possession of referee at the time when action is begun, see ante, Bank- ruptcy, p. 168. IV. Procedure. E. The Bond — 2. DE;ifSNDANT's Re;de:livery Bond. — See post, "Change in Remedy of Procedure," VI, A, 1, f ; "Conditions Precedent," VI, A, 3, a; "Ques- tion for Jury," VI, A, 3, h ; "Conclusiveness of Adjudication in Replevin Pro- ceedings," VI, A, 4, VI. Liability on Bonds and Undertakings. A. Replevin Bonds — 1. Accrual or Release of Liability— f. Change in Ronedy of Procedure. — A redelivery bond in replevin must be regarded as hav- ing been entered into subject to such changes in remedy or procedure as do not change the contractual rights of the parties. ^■''^ 3. Actions — a. Condition Precedent. — An action upon the redelivery bond in replevin is not premature because started during the pendency of a writ of error in the supreme court of Hawaii, to review the judgment in the replevin suit, where, pursuant to Laws Hawaii 1903, c. 32, §§ 17-19, enacted after the making of the redelivery bond, an execution had been issued and returned unsatisfied, be- cause of the failure to give a new redelivery bond upon an affidavit of insuffi- ciency. ^^^ h. Question for Jury. — Tender. — Whether the evidence in a suit on a re- delivery bond in replevin shows a tender of redelivery of the property by the principal obligor after judgment requiring such return is for the jury to deter- mine, upon proper instructions.^^^ 4, Conclusiveness of Adjudication in Replevin Proceedings. — See note 59. REPLEVIN BOND.— See ante. Replevin, p. 1063. REPORTS AND REPORTERS.— See the title Reports and Reporters, vol. 10, p. 728, and references there given. REPRESENTATIONS.— See ante, Fraud and Deceit, p. 597; post, Sales; Vendor and Purchaser. REPRIEVES.— See ante, Pardon, p. 930. REQUISITION.— See ante. Extradition, p. 571. 725-50a. Change in remedy of pro- 320, 55 L. Ed. 237, 31 S. Ct. 241. cedure. — A redelivery bond in replevin 727-58a. Question for jury — Tender. must be regarded as having been entered — Bierce r. Waterhonse, 219 U. S. 320, into subject to such changes in remedy 55 L. Ed. 237, 31 S. Ct. 241. or procedure as do not change the con- 727-59. Where sureties concluded by tractual rights of the parties, e. g., the proceedings in replevin suit. — The surety statutory allowance of a writ of error on a redelivery bond in replevin can not from the federal supreme court, to re- object that his liability was enlarged be- view the final judgment in the replevin yond his undertaking, so as to discharge suit, where no such review had thereto- him from liability, by the allowance of fore been permissible, or subsequent leg- amendments to the declaration in re- islation authorizing the issuance of an plevin suit, increasing the alleged value execution during the pendency of a writ of the property, where the issue as to of error to review such judgment if the the propriety of such amendments was defendant should be ruled to give a new in issue in the replevin suit and was de- redelivery bond upon an affidavit of in- cided against the principal in such bond, sufficiency. Bierce f. Waterhouse, 219 and the penalty of the bond was not U. S. 320, 55 L. Ed. 237, 31 S. Ct. 241. thereby exceeded. Bierce v. Waterhouse, 726-53a. Premature suit on redelivery 219 U. S. 320. 55 L. Ed. 237, 31 S. Ct. 241. bond. — Bierce v. Waterhouse, 219 U. S. 1064 Vol. X. RES ADJUDICATA. RES ADJUDICATA. III. Elements Essential to Application of Doctrine, 1066. B. Identity of Parties, Cause of Action, Subject Matter and Issues, 1066. 2. Identity of Parties, 1066. a. General Rule, 1066. D. Alutuality, 1066. IV. In Whose Favor and against Whom Doctrine Applicable, 1066. A. General Rule, 1066. B. Rule Construed and Applied, 1066. 1. Who Are Parties and Privies within Rule, 1066. a. Who Are Parties, 1066. 2. Application of Rule to Particular Persons and Classes of Persons, 1066. b. Parties by Representation. 1066. u. Federal or State Government and Its Tenants or Agents, 1067. V. As to What Matters Conclusive, 1067. B. Where Second Action on Same Claim or Demand, 1067. 2. Matters Available as Ground of Recovery, 1067. c. Rule Inapplicable to Distinct or Successive Causes of Action, 1067. C. Where Second Action on Different Claim or Demand, 1067. 1. Necessity That Precise Question Shall Have Been Determined, 1067. a. General Rule, 1067. 2. Extent and Limitations of Doctrine, 1068. a. Judgment an Estoppel as to All ^Material Issues Decided, 1068. (2) Applications of Rule, 1068. VI. To What Judgments or Decrees Doctrine Applicable, 1068. A. Nature of Judgment or Decree as Determining, 1068. 1. Necessity for Valid Existent Decision by Court of Competent Ju- risdiction, 1068. b. Effect of Invalidity as Distinguished from ^lere Error or Ir- regularity, 1068. 2. Judgment or Decree Alust Be Final, 1068. B. Application as Dependent on Tribunal, Nature of Proceedings, or Man- ner in Which Adjudication Obtained, 1068. 1. Applicable to \'alid Decisions of All Courts of Competent lurisdic- tion, 1068. c. Decisions of Courts of Other States and of Federal Courts, 1068. 2. As Dependent on Nature of Proceedings in Whicii Adjudication Obtained, 1068. g. Application to Criminal Proceedings. 1068. 3. Application Irrespective of Manner in Which Adjudication Ob- tained, 1068. f. Judgments on Demurrer, 1068. VII. Pleading and Proof, 1068. C. Proof, 1068. 106.5 735-746 RBS ADJUDICATA. Vol. X. 2. Admissibility of Extrinsic Evidence as to Scope and Effect of For- mer Decision. 1068. a. General Rules Determining, 1068. D. Determination on Plea of Res Adjudicata, 1069. CROSS REFERENCES. See the title Res Adjudicata, vol. 10, p. 729, and references there given. III. Elements Essential to Application of Doctrine. B. Identity of Parties, Cause of Action, Subject Matter and Issues — 2. Identity of Parties — a. General Rule. — See note 15. D. Mutuality.— See note 2>Z. IV. In Whose Favor and against Whom Doctrine Applicable. A. General Rule. — See note 40. B. Rule Construed and Applied — 1. Who Are Parties and Privies within Ruee — a. Who Are Parties. — See notes 46, 49. 2. Application of Rule to Particular Persons and Classes of Persons — b. Parties by Representation. — See note 54. 735-15. Identity of parties essential. — Chantangco v. Abaroa, 218 U. S. 476, 54 L. Ed. 1116, 31 S. Ct. 34. 738-33. Mutuality essential to estoppel by judgment. — Chantangco v. Abaroa, 218 U. S. 476, 54 L. Ed. 1116, 31 S. Ct. 34; IngersoU v. Coram, 211 U. S. 335, 53 L. Ed. 208, 29 S. Ct. 92. 741-40. Illustrations. — A decree of a federal circuit court, dismissing, for want of equity, a bill filed by several holders of railroad equipment bonds "on their own behalf as well as in behalf of all those in like interest who may come in and contribute to the expenses of, and join in the prosecution of, this suit," to obtain a sale of the railroad property to satisfy the lien of such bonds, is not a bar to the claim for a lien of holders of the equipment bonds who were not par- ties tp that suit. Decree (Sup. 1906), 78 N. E. 1141, 74 Ohio St. 483, reversed. Wabash R. Co. v. Adelbert College. 208 U. S. 38, 52 L. Ed. 379, 28 S. Ct. 182, re- hearing denied in 208 U. S. 609, 52 L- Ed 642, 28 S. Ct. 425. A homestead claimant whose rights at- tached before any interest in the land was acquired by a railway company un- der a congressional grant is not con- cluded by an adjudication against the government in a suit brought by it to cancel certain patents issued to the rail- way company, including one for the land in question, to which suit he was not made a party, although he may have been an active member of a Settlers' Protec- tive Association, which may have made such representations to, and brought such facts to the attention of, the gov- ernment, as to induce the government to bring the suit. Judgment (1906), 87 P. 366. 74 Kan. 424, 118 Am. St. Rep. 321. affirmed. Brandon v. Ard, 211 U. S 11 53 L. Ed. 68, 29 S. Ct. 1. 743-46. Persons without such rights regarded as strangers. — Brandon v. Ard, 211 U. S. 11, 53 L. Ed. 68, 29 S. Ct. 1. 745-49. The assistance by one of two joint tort feasors in the defense of a suit against the other, because of interest in the decision as a judicial precedent which might influence the decision in his own case, will not create an estoppel by the judgment as to him. Bigelow v. Old Do- minion, etc., Smelting Co., 225 U. S. Ill, 56 L. Ed. 1009, 32 S. Ct. 641. 746-54. Persons represented by and claiming under parties.— Irrigation canal companies and persons claiming under them, made parties to a suit over water rights, whether viewed as appropriators of water, or as mere carriers for others, sufficiently represent the users of the waters of the respective canals to cause such water users to be bound by the judgment. Montezuma Canal Co. v. Smithville Canal Co., 218 U. S. 371, 54 L. Ed. 1074, 31 S. Ct. 67, reversing decree (1907), 89 P. 512, 11 Ariz. 99. A decree of a federal court, enjoining a state board of valuation and assess- ment from assessing bank stock for taxation, which proceeds solely upon the ground that such board is the agent of the local mimicipalities, and is therefore bound by the prior injunction decree ob- tained against a count}' in a suit to which the board was not a party, can not con- clude another county, on any theory of the dependence of the power of the county to collect taxes upon the valua- tion and apportionment made by the board — especially where the state courts do not adopt this theory of the relation at the board of valuation to the counties and other municipalities of the state. Judgment (1906), 94 S. W. 620, 29 Ky. Law Rep. 643, affirmed. Bank v. Ken- tucky. 207 U. S. 258, 52 L. Ed. 197, 28 S. Ct. 82. 1066 Vol. X. RES ADJUDICATA. 754-765 u. Federal or State Government and Its Tenants or Agents. — See note 91. V. As to What Matters Conclusive. B. Where Second Action on Same Claim or Demand — 2. Matters Available as Ground of Recovery — c. Rule Inapplicable to Distinct or Succes- sive Causes of Action. — See note 30. C. Where Second Action on Different Claim or Demand — 1. Neces- sity That Precise Question Shall Have Been Determined — 'a. General Rule. — See note 52. 754-91. A judgment of ejectment against an officer of the United States in possession of the propertj^ rendered in an action in which tiie district attorney of the United States, by direction of the attorney general and the secretary of the treasury, appeared on behalf of the United States and conducted the defense, does not estop the United States in a subsequent action from contesting the title to the property. Hussey v. United States, 222 U. S. 88, 56 L. Ed. 106, 32 S. Ct. 3.3. 761-30. A judgment sustaining a de- murrer to the petition in an action by a creditor of a national bank against the directors, because the court was of the opinion that the petition only stated a right to recover for violations of the na- tional bank act, causing damage to the bank as such, the right to recover for which was an asset of the bank, enforce- able only by its receiver, is not a bar to a recovery in another action between the same parties under a petition which sets lip a right to recover for the individual loss suffered, as distinct from the right of the bank. Judgment, Yates v. Jones Nat. Bank (Xeb. 1905), 105 N. W. 287. modified. Yates v. Utica Bank, 206 U. S. 181. 51 L. Ed. 1015, 27 S. Ct. 640. A judgment upon a promissor}- note given for the price of fertilizers in an action in which injury to defendant's crops because of their bad quality was not set up as a defense does not preclude a separate suit to recover such damages. Judgment, Kirven v. Virginia-Carolina Chemical Co. (1907), 58 S. E. 424, 77 S. C. 493. affirmed. Virginia-Carolina Chem- ical Co. z: Kirven, 215 U. S. 252, 54 L. Ed. 179. 30 S. Ct. 78. A determination in a suit by the United States against the Southern Pacific Rail- road Company, tried as a bill to quiet title, against claims of such company under the branch line grant made by the Act of March 3, 1871 (16 Stat, at L. 573, chap. 122). that it took no title to lands lying within the primary limits of the grant to the Atlantic & Pacific Railroad Company, made by the Act of July 27, 1866, is not a bar to a claim by the Southern Pacific Railroad Company to the sam.e land under a selection as in- demnity lands, made after the forfeiture of its grant by the Atlantic & Pacific Railroad Company, on the theory that such land was also embraced within the indemnity limits of the main line grant made to the Southern Pacific Railroad Company by the Act of July 27, 1866, and that under such act each road, in case of conflict, took half the land within conflicting place limits. United States t'. Southern Pac. R. Co., 223 U. S. 565, 56 L. Ed. 553, 32 S. Ct. 326. 765-52. " Instances in which former juagment held not an estoppel. — A decree enjoining a municipalit}', at the suit of a waterworks company, from building its own waterworks, or denying liability, or refusing to pay the water rentals con- tracted for, is not conclusive as to the right of the municipality to regulate water rates charged to private consumers under a law passed long after the bill was filed, even if it could be said that the pleadings put in issue the reasonable- ness of the rates then charged. Vicks- burg V. Vicksburg Waterworks Co., 206 U. S. 496, 51 L. Ed. 1155, 27 S. Ct. 762. An adjudication that the ownership by a lailway carrier of stock in a bona fide corporation manufacturing, mining, pro- ducing, or owning the commodity carried is not the interest in such commodity forbidden to the carrier by Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Comp. St. Supp. 1909, p. 1149), is not res judicata of the right of such carrier to exert iis power as a stock holder so as to deprive the other corporation of all real independent existence, and to make it virtually but an agency, or dependency, or department of the carrier. United States V. Lehigh Valley R. Co., 220 U. S. 257, 55 L. Ed. 458, 31 S. Ct. 387. A decree establishing a will does not determine that any particular property belongs to the decedent's estate. Lewers V. Atcherly, 222 U. S. 285, 56 L. Ed. 202, 32 S. Ct. 94. Presumption in absence of record. — In the absence of the record of an adverse suit, there is no presumption that sub- terranean rights under lode mining loca- tions were therein considered and de- termined. Judgment, United States Min. Co. z: Lawson (1904). 134 F. 769, 67 C. C. A. 587, affirmed. Lawson v. United States Min. Co., 207 U. S. 1, 52 L. Ed. 65, 28 S. Ct. 15. 106] 770-795 RBS ADJUDICATA. Vol. X. 2. Extent and Limitations of Doctrine — a. Judgment an Estoppel as to All Material Issues Decided — (2) Applications of Rule. — See note 70. VI. To What Judgments or Decrees Doctrine Applicable. A. Nature of Judgment or Decree as Determining — 1. Necessity for Vai,id Existent Decision by Court of Competent Jurisdiction — b. Effect of Invalidity as Distinguished from Mere Error or Irregularity. — See note 90. 2. Judgment or Decree ]\Iust Be Final. — See note 92. B. Application as Dependent on Tribunal, Nature of Proceedings, or Manner in Which Adjudication Obtained — 1. Ai'plicai!le to \ alid Deci- sions OF All Courts of Competent Jurisdiction — c. Decisions of Courts of Other States and of Federal Courts. — See note 26. 2. As Dependent on Nature of Proceedings in Which Adjudication Ob- tained — g. Application to Criminal Proceedings. — See note 52. 3. Application Irrespective of Manner in Which Adjudication Ob- tained — f. Judgments on Demurrer. — See note 87. VII. Pleading and Proof. C. Proof — 2. Admissibility of Extrinsic Evidence as to Scope and Ee- FECT OF Former Decision— a. General Rules Determining. — See note 17. 770-70. Adjudications as to matters of title. — A decree determining the rights of an irrigation canal company in the waters of a river, as against the owners of other irrigation canals taking water from the river at points above the head of its own canal, and against all persons claiming under them, is res judicata as to such canal ovv'ners and the water users under such canals in a subsequent con- troversy over the respective rights of the appropriators of the waters of such river. Montezuma Canal Co. i\ Smith- ville Canal Co., 218 U. S. 371, 54 L. Ed. 1074, 31 S. Ct. 67, reversing decree (1907), 89 P. 512. 11 Ariz. 99. 774-90. Judgment based on mistake of law. — A judgment is no less conclusive because it is based upon a mistake of law. American Exp. Co. i\ IMullins, 212 U. S. 311, 53 L. Ed. 525, 29 S. Ct. 381. 774-92. An ex parte direction to a tes- camentary trustee to pay over a portion of the income of the trust property to children of the testator, on the theorj' that they have become legitimate by the subsequent marriage of their parents, is not res judicata where no notice was given of the proceedings, and there was no contest or issue made concerning the legitimacy of the children. Kealoha f. Castle, 210 U. S. 149, 52 L. Ed. 998, 28 S. Ct. 684. 780-26. Conclusiveness of judgments or decrees of federal courts in state courts. — The final judgment of a federal circuit court dismissing a suit after refus- ing to remand the case to the state court, whence it had been removed, must, while unreversed, be given full efifect by the state court when set up as a bar to the action after the order of the state court, granting the petition for removal, had been reversed by the highest state court, and the case remanded for trial, although the federal court may have been in error in holding the case to be a removable one. Chesapeake, etc.. R. Co. v. McCabe, 213 U. S. 207, 53 L. Ed. 765, 29 S. Ct. 430. 785-52. Record of criminal proceedings not conclusive in civil actions. — Chan- tangco r. Abaroa, 218 U. S. 47(3, 54 L. Ed. IIIG. 31 S. Ct. 34. Under Philippine Codes. — A civil action for indemnification for the damages re- sulting from the malicious or unlawful burning of a storehouse and its contents may not be maintained in the Philippine courts, where there has been a judgment of acquittal against the same defendant for the same malicious and unlawful burning, in viev.' of the positive legisla- tion in the Philippine Codes, civil and criminal, drawing a distinction between a civil liability which results from the mere negligence of the defendant, and a liability for the civil consequences of a crime by which another has sustained loss or injury, and of the plain inference from art. 17 of the Penal Code that civil liability springs out of and is dependent upon facts which, if true, would consti- tute a crime or misdemeanor, and of the provisions of Code Cr. Proc, §§ 108, 112, 742, which plainly contemplate that the civil liability of the defendant shall be as- certained and declared in the criminal proceedings. Chantangco v. Abaroa, 218- U. S. 476, 54 L. Ed. 1116, 31 S. Ct. 34. 791-87. Conclusiveness of judgment not affected by fact of rendition on de- murrer. — Vates V. Utira T^ank. 206 U. S. 181, 51 L. Ed. 1015, 27 S. Ct. 646. 795-17. Interpretation according to language of judgment, pleadings and pro- ceedings. — Yates t: Utica Bank, 206 U. S- 1068 Vol. X. RESERVATION. 798-811 D. Determination on Plea of Res Adjudicata. — See note 32. RESCISSION, CANCELLATION AND REFORMATION. I. Rescission and Cancellation, 1069. B. Grounds for Relief, 1069. 3. Fraud, 1069. C. Conditions of Relief, 1069. 3. Inadequacy of Remedy at Law, 1069. D. Nature of Relief Afiforded, 1069. 2. Restoration of Original Status, 1069. a. In General, 1069. CROSS REFERENCES. See the title Rescission, Cancellation and Reformation, vol. 10, p. 799, and references there given. In addition as to cancellation or annulment of deeds in proceedings to quiet or remove cloud from title, see ante. Quieting Title, p. 1040. As to cancella- tion of land grants made by Indians, see ante, Indi.vns, p. 641 ; Public Lands, p. 1012. As to annulments of certificates of naturalization for fraud, see ante, Naturalization, p. 911. I. Rescission and Cancellation. B. Grounds for Relief — 3. Fraud. — See note 18. C. Conditions of Relief — 3. Inadequacy of Remedy at Law. — See note 30. D. Nature of Relief Afforded — 2. Restoration of Original Status — a. /;/ General. — See note 42. RESCISSORY ACTIONS.— See ante. Limitation of Actions and Ad- verse Possession, p. 828. RESERVATION. — As to Indian reservations, see ante, Indians, p. 641. 181, 51 L. Ed. 1015, 27 S. Ct. 646: Vicks- 808-30. Where no remedy at law or burg V. Vicksburg Waterworks Co., 206 remedy ineffectual. — Where a waterworks U. S. 496, 51 L. Kd. 1155, 27 S. Ct. 762. company breaches its contract with a mu- 798-32. The court does not usurp the nicipality to furnish a continuous adequate province of the jury in rendering judg- supply of wholesome water, the mumci- ment upon the pleadings, which present pality has the right to invoke the aid of the questions whether, upon. the facts ap- a court of equity to enforce its rescission pearing in certain judgments pleaded as of the contract, since the remedy at law res judicata or averred in the answer, the by an action for damages is wholly inad- defendants were, as a matter of law, in equate. Columbus v. Mercantile Trust, privity with the complainants in the cause etc., Co., 218 U. S. 645, 54 L. Ed. 119.3, 31 in which the judgments were rendered, S. Ct. 105, reversing decree Mercantile or whether these judgments could be col- Trust & Deposit Co. of Baltimore v. laterally attacked for the alleged insanity City of Columbus (C. C. 1908) 161 F. 135. of the defendant when entered. Souffront 811-42. New contract for parties.— A V. La Compagnie Des Sucreries, 217 U. decree which in substance avoids a sub- S. 475, 54 L. Ed. 846, 30 S. Ct. 608. sequent conveyance to a mortgagee as 804-18. Fraud— In general.— Equity obtained by fraud, thus leaving the origi- will set aside a conveyance l)y which the ^^1 mortgage valid and binding, and or- grantee, by means of fraud, oppression, ^ers an accounting by the fraudulent and undue intluence acquired in settle- o-rantee as a mortgagee in possession, is ment or a debt a tract of land of far \.^^^ ^^^^ ^^ the objection that it makes greater value than the amount of such ^ ^^^ contract for the parties. Judg- debt. Judgment (1907), 92 P. 250, 19 j-^ent (1907) 92 P. 250, 19 Okl. 525, af- Okl. 525. affirmed. Wagg v. Herbert, 215 firmed. Wagg v. Herbert. 215 U. S. 546, U. vS. 546. 54 L. Ed. 321, 30 S Ct. 218. See, 5^ t VA 39^30 S Ct "18 ako, ante, FRAUD AND DECEIT, p. ' ' 597. 1069 835-836 RETURN ON PROCESS. Vol. X. RES GEST^ffi. — See the title Res Gest^, vol. 1.0, p. 829, and references there given. RESIDENCE. — See references under Re;sidence — Resident, vol. 10, p. 834. RESIDUARY CLAUSE.— See post. Wills. RESIDUARY INTEREST.— See ante, Fraudulent and Voluntary Con- VLYANCES, p. 600. RES IPSA LOQUITUR.— See ante, Negligence, p. 920. RES JUDICATA.— See ante, Res Adjudicata, p. 1065. RESTITUTION. — See references under Restitution, vol. 10, p. 834. And see ante, Banks and Banking, p. 184. RESTRAINING ORDERS.— See ante. Injunctions, p. .657; Judicial Sales, p. 812. RESTRAINT OF TRADE.— See the title Restraint of Trade, vol. 10, p. 835, and references there given. RESTRAINT ON ALIENATION. CROSS REFERENCES. See Restraint on Alienation, vol. 10, p. 836, and references there given. In addition, see post, Taxation. As to restrictions upon the alienation of lands allotted to Indians, see ante, Indians, p. 641. General Restraint upon Alienation of Personal Property Generally Void. — The right of alienation is one of the essential incidents of a right of general property in movables, and restraints upon alienation have been gen- erally regarded as obnoxious to public policy, which is best subserved by great freedom of traffic in such things as pass from hand to hand. General restraint in the alienation of articles, things, chattels, except when a very special kind of property is involved, such as a slave or an heirloom, have been generally held void.-^ RETAIL.— See note a. RETURN. — See ante, Bail and Recognizance, p. 166; Executions, p. 563; post. Summons and Process. RETURN NIHIL.— See ante. Bail and Recognizance, p. 166. RETURN ON PROCESS.— See ante. Judicial Sales, p. 812. _ 835-2a. General restraint upon aliena- and the other to a particular class; one tion of personal property generally void. within the state, the other without. From — Miles }kledical Co. t'. Park & Sons Co., time out of mind it has been the custom 220 U. S. 373, 404, 55 L. Ed. 502, 31 S. Ct. of congress to impose a special license ^'''6. _ tax upon wholesale dealers dififerent from 836-a. Retail and wholesale dealers dis- that imposed upon retail dealers. A like tinguished. — "In Cook v. Marshall County, distinction is observed between brewers 196 U. 3. 261, 268, 49 L. Ed. 471, which in- and rectifiers, wholesale and retail deal- volved the validity of a cigarette tax law ers in leaf tobacco and liquors, manufac- that made a distinction between jobbers turers of tobacco and manufacturers of and wholesale dealers in cigarettes, the cigars, as well as peddlers of tobacco. co_urt_ said: 'There is a clear distinction in It may be difficult to distinguish these principle between persons engaged in several classes in principle, but the power selling cigarettes generally or at retail, of congress to make this discrimination and those engaged in selling by whole- has not, we believe, been questioned.' " sale to ciistomers without the state. They Southwestern Oil Co. v. Texas, 217 U. S. are two entirely distinct occupations. 114, 125. 54 L. Ed. 688, 30 S. Ct. 496. See One sells at retail, and the other at ante, CONSTITUTIONAL LAW, p. 264; wholesale, one to the public generally, DUE PROCESS OF LAW, p. 475. 1070 Vol. X. REVENUE LAWS. REVENUE LAWS. II. Definitions and Distinctions, 1072. A. Definitions, 1072. 4. Duties and Imposts, 1072. 9. ^lanufactures and [Manufactured Articles, 1072. 10. Excise Tax or Duty, 1072. 12. Country, 1073. B. Distinctions, 1073. III. Constitutionality of Acts Relating to Revenue, 1073. A. Constitutional Limitations of the Taxing Power, 1073. V. Customs Duties, 1073. A. Custom Laws Contemplate Foreign Countries Only, 1073. 4. Status of the Insular Possessions, 1073. b. After Ratification of Treaty of Peace, 1073. C. Rules for Classification of Merchandise, 1073. 1. In General, 1073. 2. Similitude Clause, 1073. c. [Meaning of Words "of Similar Description," 1073. h. Administrative Classification, 1074. D. The Schedules, 1074. 5. Schedule C — Aletals and [Manufactures of, 1074. g. Articles or Wares Not Specially Provided for, 1074. 8. Schedule F — Tobacco and Manufactures of, 1074. f. Unmanufactured Tobacco, 1074. 10. Schedule H — Spirits, Wines and Other Beverages, 1074. d. Still Wines, 1074. 12. Schedule J — Flax, Hemp and Jute and Manufactures of, 1075. g. Trimmings, 1075. 16. Schedule N — Sundries, 1075. f. Paintings and Sculptures, 1075. j. Pearls and Precious Stones, 1075. k. Waste, 1075. E. Commercial Treaties, 1075. 2. Reciprocity Treaties, 1075. H. Levy, Collection and Payment of Duties, 1076. 8. Liquidation and Payment of Duties, 1076. c. Payment and Discharge of Duties, 1076. (8) Action by United States to Recover Duties, 1076. M. Drawback, 1076. 2. Definitions and Distinctions, 1076. d. "Manufacture" Defined, 1076. 6. Drawback on Articles Alanufactured from Imported [Materials, 1077. a. In General, 1077. N. Violation of Customs Laws, 1077. 8. Violation of CustomiS Laws Punishable Criminally, 1077. c3^. False and Fraudulent Entries, 1077. VI. Internal Revenue, 1077. D. Property Subject to Tax, 1077. 1. Oleomargarine, 1077. 1071 860-861 REVENUE LAWS. Vol. X. D>^. Corporation Tax, 1077. 1. In General, 1077. 2. Constitutionality of Act, 1078. 3. Corporations Subject to the Tax, 1080. a. Must Be Organized under Some Statute, 1080. b. Must Be "Engaged in Business," 1080. (1) In General, 1080. (2) Particular Corporations Considered, 1080. (a) Real Estate Corporations, 1080. (b) Corporation Owning and Leasing Taxicabs, 1081. c. Public Service Corporations, 1081. d. State Agencies, 1081. O. Payment of Internal Revenue Taxes, 1081. 4. Lien !or Unpaid Taxes, 1081. d. Enforcement of Lien, 1081. R. Action by United States to Recover Tax, 1081. 1. Form of Action, 1081. U. Violation of Internal Revenue Laws, 1082. 3. Refusal to Allow Officers to Enter and Examine Articles Sub- ject to Taxation, 1082. 4. Penalties and Forfeitures Incurred by Dealers in Oleomargarine, 1082. 5^. Selling Packages Containing "Anything Else" than the Con- tents When Stamped, 1082. IX. Stamp Taxes, 1083. P. Action by L^nited States to Recover Tax, 1083. O. Validating L^nstamped Instruments, 1083. CROSS REFERENCES. See the title Revenue Laws, vol. 10, p. 857, and references there given. In addition, see ante. Appeal and Error, p. 34 ; Debt, the Action of, p. 457 ; Estoppel, p. 553; post. Succession Taxes; Taxation; United States. As to review "by the federal supreme court of judgments and decrees of the cir- cuit court of appeals in revenue cases, see ante, Appeal and Error, p. 34. As to taxation of outstanding circulation of national banks, see post, Taxation. As to interpretation and construction of revenue laws, see post. Statutes. As to the delegation of power to prescribe rules and regulations for the enforcement of revenue laws, see ante. Constitutional Law% p. 264. II. Definitions and Distinctions. A. Definitions — 4. Duties and Imposts. — Duties and imposts are terms commonly applied to levies made by governments on the importation or exporta- tion of commodities. ^^^'^ 9. Manufactures and Manufactured Articles. — See note 13. 10. Excise Tax or Duty. — See note 20. 860-lOa. Duties and imposts.— Flint v. Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 Stone iracy ^^o., ^i;u u. b. 1U(, 55 L,. ti^c. vS. Ct. 342, citing Cooley, Const. Lim. 7th 389. 31 S. Ct. 342. Ed. 680. 860-13. See post, " 'Manufacture' De- "It is unnecessary to enter upon an ex- fined," V, M, 2, d. tended consideration of the technical 861-20. Excise tax or duty defined. — meaning of the term 'excise.' It has been Excises are "taxes laid upon the manu- the subject matter of considerable dis- facture, sale, or consumption of commod- cussion; the terms duties, imposts, and ities within the country, upon licenses excises are generally' treated as embrac- to pursue certain occupations, and upon mg the indire':t forms . t 'axation contem- corporate privileges." Flint v. Stone plated by the constitution." Flint v. 1072 Vol. X. REVENUE LAWS. 862-870 12. Country. — In the absence of some qualifying phrase the word "country," in revenue laws of the United States, has always been construed to embrace all the possessions of a foreign state, however widely separated, which are subject to the same supreme executive and legislative control. -^^ B. Distinctions. — The word "import" is correlative of the word "export."--'' III. Constitutionality of Acts Relating to Revenue. See note 22). A. Constitutional Limitations of the Taxing Power. — See note 24. V. Customs Duties. A. Custom Laws Contemplate Foreign Countries Only — 4. Status op THi; Insular Possessions — b. After Ratification of Treaty of Peace. — Mer- chandise imported into Cuba from the United States by an American citizen during the military occupation of the island, between Alarch 31, 1900, and May 20, 1902, was not exempt from the payment of duties imposed and collected by the military government for necessary governmental purposes incident to the occupation of Cuba by the United States.'*"'^ C. Rules for Classification of Merchandise — 1. In General. — See note 57a. 2. Similitude Clause — c. Meaning of JJ^ords "of Similar Descril^tion." — See note 67. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342, citing Pollock v. Farm- ers' Loan, etc., Co., 157 U. S. 429, 39 L. Ed. 759. 15 S. Ct. 673; S. C, 158 U. S. 601, ."^9 L. Ed. 1108, 15 S. Ct. 912; Thoma'^ 7\ United States, 192 U. S. 363, 48 L. Ed. 481. 24 S. Ct. 305. 862-21a. "Country."— Faber z\ United States, 221 U. S. G49, 55 L. Ed. 897, 31 S. Ct. 659, citing Stairs z'. Peaslee, 18 EIow. 521, 526, 15 L. Ed. 471. 862-22a. "Import" and "export." — Faber z: United States, 221 U. S. 649, 55 L. Ed. 897, 31 S. Ct. 659. 862-23. Constitutionality. — See nost, "Constitutionality of Act," VT, DL', 2. 862-24. Constitutional limitations of the taxing power. — The constitution contains only two limitations on the right of con- gress to levy excise taxes; they must be levied for the public welfare, and are re- quired to be uniform throughout the United States. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342, citing License Tax Cases, 5 Wall. 462, 471. 18 L. Ed. 497. See post. TAXA- TION. 866-47a. Merchandise imported into Cuba.— Judgment (1905) 40 Ct. CI. 495, affirmed. Galban & Co. z'. United States, 207 U. S. 579, 52 L. Ed. 349, 28 S. Ct. 254. 868-57a. Rules for classification. — The rule is well established that "in order to prodtice uniformity in the imposition of duties, the dutial:)le classification of ar- ticles imported mtist l^e ascertained by an examination of the imoorted article it- self, in the 'condition in which it is im- ported. This, of course, does not mean that a prescribed rate of duty can be es- caped by resort to disguise or artifice. When it is found that the article imported is in fact the article described in a partic- ular paragraph of the tariff act, an effort to make it appear otherwise is simply a fraud on the revenue, and can not be permitted to succeed. But when the ar- ticle imported is not the article described as dutiable at a specified rate, it does not become dutialile under the descrintion because it has been manufactured or prepared for the express purpose of be- ing imported at a lower rate." United States f. Citroen, 223 U. S. 407, 56 L. Ed. 486, 32 S. Ct. 259, citing Worthington v. Robbins, 139 U. S. 337, 341. 35 L. Ed. 181, 11 S. Ct. 581; Dwight v. Merritt, 140 U. S. 213, 219, 35 L. Ed. 450, 11 S. Ct. 768; United States v. Schoverling, 146 U. S. 76, 82, 36 L. Ed. 893, 13 S. Ct. 24; United States V. Irwin (C. C. A. 2d C.) 24 C. C. A. 349, 45 U. S. App. 746, 78 Fed. 799, 802; Falk V. Robertson, 137 U. S. 225. 232, 34 L. Ed. 645, 11 S. Ct. 41; Merritt z'. Welsh. 104 U. S. 694, 704, 26 L. Ed. 896; See- l)erger v. Farwell, 139 U. S. 608, 611, 35 L. Ed. 297, 11 S. Ct. 650. 870-67. Goods may be similar without being identical. — It must be l)orne in mind that the statute (Act of July 24, 1897, 30 Stat, at L. 151, chap. 11, U. S. Comp. Stat. 1901. p. 1626) does not re- quire identity. If that were necessary tlie statute would have no raison d'etre. United States z: Eckstein, 222 U. S. 130, 56 L. Ed. 125, 32 S. Ct. 65, citing United States z'. Roesseler & H. Chemical Co., 70 C. C. A. 346, 137 Fed. 770. Imitation horsehair. — The requirement of the statute (Act of July 24, 1897, 30 12 U S Enc— 68 lo: 872-890 RBVBNUB LAWS. Vol. X. h. Administrative Classification. — Where a certain article has been uniformly classified under the similitude clause of the tarifif act, and this classification has received a qualified approval by congress in enacting a subsequent tariff act, the article will be held to be properly classified. ^^'^ D. The Schedules — 5. Sche;duIvE C — Metals and Manufactures of — g. Articles or Wares Not Specially Provided for. — A bronze bust cast by artisans from the artist's model is not classifiable as statuary.'''^ 8. Schedule F — Tobacco and Manufactures of — f. Unmanufactured To- bacco. — See note 25. Congress, in using the words "unmanufactured tobacco," in the Tariff Act of 1897 (30 Stat, at L. 194, 169, chap. 11, U. S. Comp. Stat. 1901, pp. 1679, 1648), par. 215, must be deemed to have adopted the construction given by the federal supreme court to those words as used in an earlier tariff act.-5a 10. Schedule H — Spirits, Wines and Other Beverages — d. Still Wines. — Tariff Act July 24, 1897, c. 11, § 1, Schedule H, par. 296, 30 Stat. 174 (U. S. Comp. Stat. 1901, p. 1654), provides that the duties on still wines shall be, "in bottles or jugs, per case of one dozen bottles or jugs, containing each not more than one quart and more than one pint, or 24 bottles or jugs containing each not more than one pint, $1.60 per case; and any excess beyond these quantities found in such bottles or jugs shall be subject to a duty of 5 cents per pint or fractional part thereof. "^^'^ Stat, at L. 151, chap. 11, U. S. Comp. Stat. 1901, p. 1626) is not that there shall be similarity in all the four particulars enu- merated in § 7 (material, quality, texture and use), but a substantial similarity in one of those particulars may be adequate. Thus imitation horsehair is properly dutiable under the similitude clause as being- similar to cotton yarns, under par- agraph 302, being similar both as to material and use. United States v. Eck- stein, 222 U. S. 130, 56 L. Ed. 125, 32 S. Ct. 65. 872-83a. Administrative classification. — Koniada & Co. v. United States, 215 U. S. 392, 54 L. Ed. 249, 30 S. Ct. 136. The Japanese beverage "sake" is properly classified under the similitude clause of Tariff Act July 24, 189T, c. 11, § 7, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626), as similar to still wine, in view of the uniform customs administrative con- struction under v>diich, on a protest by an importer in 1894 against classification by similitude to distilled liquor, sake was classified by similitude to still wine, which ruling has uniformly been followed, and has received at least a qualified approval by congress in enacting such tariff act without modifying the provisions of the earlier act upon which such ruling was based. Komada & Co. v. United States, 215 U. S. 392, 54 L. Ed. 249, 30 S. Ct. 136. See, generally, post, STATUTES. 886-7a. A bronze bust cast by artisans from the artist's model is dutiable, upon importation from France, at 45 per cent ad valorem, under the Tariff Act of 1897, par. 193, which covers articles or wares not specially provided for in the act, com- posed wholly or in part of metal, and whether partly or wholly manufactured, and is not classifiable as statuary, under the coinmercial reciprocal agreement with France, negotiated in accordance with, and under the authority contained in § 3 of that act, to make reciprocal agree- ments with reference, among other ar- ticles, to "paintings in oil or water colors, pastels, pen and ink drawings, and statu- ary," since the Tariff Act defines statuary as including only such as is cut, carved, or otherwise wrought by hand from a solid block of marble, stone, or alabaster, or from metal, and such as is the profes- sional production of a statuary or sculp- tor. Altman & Co. v. United States, 224 U. S. 583, 56 L. Ed. 894, 32 S. Ct. 593. See post, "Reciprocal Agreement with France," V, E, 2, a. 889-25. Tobacco sweepings or scrap used in the manufacture of stogies and cigarettes are dutiable at 55 cents a pound, under the Tariff Act of 1897, par. 215, as unmanufactured tobacco, and not at ten per cent ad valorem under para- graph 463, as "waste not specially pro- vided lor in this aci.'" Latimer %•. United States, 223 U. S. 501, 56 L. Ed. 526, 32 S. Ct. 242. 889-25a. "Unmanufactured tobacco." — Latimer v. United States, 223 U. S. 501, 56 L. Ed. 526, 32 S. Ct. 242. See See- berger v. Castro, 153 U. S. 32, 38 L. Ed. 624, 14 S. Ct. 766. 890-38a. Still wines.— United States v. Cerecedo Hermanos Y Compania, 209 U. S. 337, 52 L. Ed. 821, 28 S. Ct. 532._ This paragraph separates s.till wines in bottles into three classes and fixes a spe- cific rate of duty on each as follows: "(a) Bottles 'containing each not more 1074 Vol. X. RBJ'BNUB LAWS. 891-900 12. Schedule J — Flax, Hemp and Jute and Manufactures of — g. Trim- mings. — Narrow woven cotton strips bearing "featherstitch" or "herringbone" ornamentation are dutiable as cotton braids, and not as "bindings" or as "tapes. "^-'^ 16. Schedule N — Sundries — f. Paintings and Sculptures. — See note 3. j. Pearls and Precious Stones. — Loose drilled pearls, unset and unstrung, how- ever carefully matched or desirable for a necklace, are dutiable at 10 per cent ad valorem under the Tariff Act of July 24, 1897 (30 Stat, at L. 151, 192, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1676), par. 436, as "pearls in their natural state, not strung or set," and are not classifiable by similitude as jewelry, including "pearls set or strung," dutiable under par. 434 at 60 per cent ad valorem, because at some time, or from time to time previous to importation, such pearls had been strung temporarily for purposes of display.'^'' k. Waste. — The word "waste," in this schedule (Act of 1909) generally refers to remnants and by-products of small value that have not the quality or utility either of the finished product or the raw material. ^'^ E. Commercial Treaties — 2. Reciprocity Treaties. — Reciprocal Agree- ment with France. — Under the commercial reciprocal agreement with France (30 Stat, at L. 1774), which was negotiated under the authority contained in § 30 of the Tarifif Act of 1897, it is provided that "paintings in oil or water colors, pastels, pen-and-ink drawings, and statuaries shall be admitted into the United States at 15 per centum ad valorem. "^^^ than one pint,' which are to be assessed as full pints at $1.60 per 24 bottles, or at the rate of 63^ cents per pint; (b) bottles 'containing each not more than one quart and more than one pint,' whicli are to be assessed as full quarts at $1.60 per dozen bottles; that is. at the same rate of 67^ cents per pint; and (c) bottles containing 'any excess beyond these quantities,' which are to be assessed at the rate of $1.60 per dozen, plus 5 cents per pint or fractional pint on the excess over a quart contained in each bottle.'" United States V. Cerecedo Hermanos Y Compania, 209 U. S. 337, .52 L. Ed. 821, 28 S. Ct. 532. Wines imported in cases of 24 bottles, each bottle containing more than one pint and less than one quart, are dutiable at $1.60 per dozen bottles, under Tariff Act July 24, 1897, c. 11. § 1, Schedule H, par. 296, 30 Stat. 174 (U. S. Comp. St. 1901, p. 1654), providing that the duties shall be, "in bottles or jugs, per case of one dozen bottles or jugs, containing each not more than one quart and more than one pint, or 24 bottles or jugs containing each not more than one pint, $1.60 per case; and any excess beyond these quanti- ties found in such bottles or jugs shall b'e subject to a duty of 5 cents per pint or fractional part thereof." United States V. Cerecedo Hermanos Y Compania, 209 U. S. 337, 52 L. Ed. 821, 28 S. Ct. 532. %'^^ "13. Trimmings.— United States v. Baruch, 223 U. S. 191, 56 L. Ed. 399, 32 S. Ct. 306. Narrow woven cotton strips bearing "featherstitch" or "herringbone'" orna- mentation, used largely for binding seams, but commercially known as "featherstitch braids" at and prior to the enactment of the Tariff Act of July 24, 1897 (30 Stat, at L. 181, chap. 11, U. S. Comp, Stat. 1901, p. 1662), which shifted braids from tlie lower duty of the notions schedule, para- graph 320, to the higher dutj^ of the trim- mings schedule, paragraph 339, without any change of phraseology to indicate that it was the purpose to depart from the settled commercial meaning of the word "braids," must be deemed dutiable at 60 per cent under the trimmings sched- ule, as cotton braids, and not at 45 per cent under the notions schedule, as "bind- ings" or as "tapes;"' especially in view of the settled administrative construction to such effect. United States -v. Baruch, 223 U. S. 191, 56 L. Ed. 399, 32 S. Ct. 306. 896-3. Definition of statuary.— In § 3 of the Tariff' Act of 1897, the term "statu- ary"' is defined as follows: "The term 'statuary,' as used in this act, shall be understood to include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, or alabaster, or from metal, and as is the professional produc- tion of a statuary or sculptor only." Alt- man & Co. V. United States, 224 U. S. 583, 56 U Ed. 894, 32 S. Ct. 593. See ante, "Articles or Wares Not Specially Provided for," V, D. 5, g. 897-8a. Pearls and precious stones. — United States v. Citroen, 223 U. S. 407, 56 U Ed. 486, 32 S. Ct. 259. 897-8b. Waste. — Latimer v. United States, 223 U. S. 501, 56 L. Ed. 526, 32 S. Ct. 242, following Patton v. United States. 159 U. S. 500, 503, 40 L. Ed. 233, 16 S. Ct. 89. 900-39a. Reciprocal agreement with France. — Aliman & Co. v. United States. lOi 900-951 RBVEXUB LAWS. \o\. X. Commercial Convention with Cuba. — Whether the reduction provided for by commercial convention with Cuba, is Hmited to the rates of duty in gen- eral tariff acts and does not apply to special rates under special agreements with other countries, is an open question. ^•^'^ The words "other country" in the Cuban treaty were used according to the known and established interpretation and did not refer to charges on ship- ments from territories belonging to the United States and hence the Philippines are not a foreign countrv or "another country'" within the meaning of the Cuban treaty of 1903.-"^- H. Levy, Collection and Payment of Duties — 8. Liquidation and Pay- ment OF Duties — c. Payment and Discharge of Duties — (8) Action b\ United States to Recover Duties. — See note 49. M. Drawback — 2. Definitions and Distinctions — d. "Manufacture" Defined. — The word "manufacture" (within the meaning of Act Oct. 1, 1890, c. 1244, § 25, 26 Stat. 617, allowing a drawback of duties on such articles when ex- ported), must be understood in the sense that a new article is produced of which the imported material constitutes an ingredient or part. There must be transfor- mation; a new and different article must emerge "having a distinctive name, character and use."^'^^ 224 U. S. 583, .56 L. Ed. 894, 32 S. Ct. 593. See ante, "Articles or Wares Not Specially Provided for," V, D, 5, g. As to a definition of the word "statuary."' see ante, "Paintinofs and Sculptures.'' V, D, 16, f. 900-39b. Acts covered by treaty. — Fa- ber V. United States. 221 U. S. 649, 55 L. Ed. 897, 31 S. Ct 659, citing Whitney v. Robertson, 124 U. S. 190. 31 L. Ed. 386, 8 S. Ct. 456. 900-39C. The words "other country." — The Philippine Islands are not "an- other country" within the meaning of the provisions of the commercial con- vention with Cuba (Act Dec. 17, 1903, art. 8, 33 Stat. 2136), that the rates of duty granted to Cuba by that treaty, be- ing a reduction of 20 per cent from the rates prescribed by the tariff act July 24, 1897, c. 11, 30 Stat. 151 (U. S. Comp. St. 1901, p. 1626), or any tariff laws sub- sequently enacted, shall continue pref- erential in respect to all like imports from other countries. Faber v. United States, 221 U. S. 649, 55 L. Ed. 897, 31 S. Ct. 659, affirming judgment (C. C. 1907), 157 F. 140. The treaty with Cuba of 1903 was signed and proclaimed several j^ears after it had been decided in Insular cases that Porto Rico and the Philippine Islands are not foreign countries but territorj- of the United States, subject to such laws as congress might enact for their polit- ical and fiscal management, and within the meaning of that treaty the Philippines were not a foreign country or "another country." Faber v. United States, 221 U. S. 649, 55 L. Ed. 897, 31 S. Ct. 659, citing Fourteen Diamond Rings v. United States, 183 U. S. 176, 177. 46 L. Ed. 138, 22 S. Ct. 59; DeLima v. Bidwell, 182 U. S. 1, 45 L. Ed. 1041, 21 S. Ct. 743; United States i: Heinszen & Co., 206 U. S. 370, 51 L. Ed. 1098, 27 S. Ct. 742; Dooley v. United States, 183 U. S. 151, 46 L. Ed. 128, 22 S. Ct. 62. In the light of new legislation and in view of the generally accepted interpre- tation of the word "import," the 8th ar- ticle of the treaty of 1903, with Cuba, can not be construed to have been intended to give Cuba an advantage over ship- ments of merchandise coming into the United States from a part of its own territory. Faber v. United States. 221 U. S. G49, 55 L. Ed. 897, 31 S. Ct. 659. 928-49. Action by United States to re- cover duties. — At common law. customs duties were recoverable by the crown bj' an information in debt or an exchequer information in the nature of a bill in equity for discovery and account. Tliese informations rested upon the general principle "that in the given case the common law or the statute creates a debt, charge, or duty in the party per- sonally to pay the duties immediately upon the importation; and that, there- fore, the ordinary remedies lie for this, as for any other acknowledged debt due to the crown." United States v. Lyman, 1 Mason, p. 499. See, also, Comyn's Di- gest (Title "Debt," A, 9); Bunbury's Re- ports, pD. 97. 223, 225. 262; ;Meredith v. United States, 13 Pet. 486, 10 L. Ed. 258; United States v. Chamberlin. 219 U. S. 250, 258, 55 L. Ed. 204, 31 S. Ct. 155. 951-18a. "Manufacture" defined. — An- heuser-Busch Brewing Ass'n v. United States, 207 U. S. 556, 52 L. Ed. 336, 28 S. Ct. 204. As to the word "manufac- ture," see Hartranft v. Wiegmann, 121 U. S. 609, 30 L. Ed. 1012, 7 S. Ct. 1240. See, also. ante. MAXUFACTURES, p. 850. 1076 Vol. X. REVEXUE LAWS. 952-965 6. Drawback ox Articles Manufactured from Imported Materials — a. In General. — See note 2Z. N. Violation of Customs Laws — 8. \^iolatiox of Customs Laws Pun- ishable Criminally — c]^. False and Fraudulent Entries. — Act June 10. 1890. c. 407. § 1, 26 Stat. 131 (U. S. Comp. Stat. 1901. p. 1886) provides for the forfeiture of goods or their value where "any owner, importer, consignee, agent, or other person" shall make an entry by means of false and fraudulent practices, or shall be guilty of any unlaiwful act or omission whereby the United States is deprived of the lawful duties, and for the punishment of such per- son by fine or imprisonment or both.^*^*^ The words "other person" comprehend an employee of the customs service who makes and returns false weights in connection with an entry of imported merchandise ; and the fact that such an employee can not be pun- ished in all respects as fully as an owner, in that he had no goods to be for- feited, is immaterial.^ ^'^ VI. Internal Revenue. D. Property Subject to Tax — 1. Oleomargarine. — See note 27. D|. Corporation Tax — 1. In General. — See U. S. Comp. Stat. Supp. 1909. p. 844. See. also, ante. Constitutional Law, p. 264; post. Taxation. Construction of Act — Excise Tax. — An excise upon the carrying on or 952-23. Imported corks used in bot- tling beer for export are not articles manufactured from imported materials within the meaning of Act Oct. 1, 1890, c. 1244. § 25, 26 Stat. 617, allowing a drawback of duties on such articles when exported, although such corks were sub- jected to a special treatment after im- portation to make them fit for the pur- pose intended. Judgment (1906), 41 Ct. CI. 389, affirmed. Anheuser-Busch Brew- ing Ass'n V. United States, 207 U. S. 556, 52 L. Ed. 336, 28 S. Ct. 204, following Schlitz Brewing Co. v. United States. 181 U. S. 584, 45 L. Ed. 1013. 21 S. Ct. 740. Where a manufacturer imports cut corks to be used in beer bottles and later exports the bottled beer and seeks to ob- tain a drawback under § 25 of the Act of October 1. 1890. c. 1244. 26 Stat. 617, due to the fact that the corks had been subjected to a special process to make them soft and were therefore manufac- tured articles from raw material im- ported, there is force in the contention that the exportation was not of corks or bottles, but of beer. Anheuser-Busch Brewing Ass'n f. United States, 207 U. S. 556, 52 L. Ed. 336. 28 S. Ct. 204. 963-16a. False and fraudulent entries. — United States v. Mescali. 215 U. S. 26, 54 L. Ed. 77, 30 S. Ct. 19. 963-16b. The words "other person." — United States r. Mescali, 215 U. S. 26, 54 L. Ed. 77, 30 S. Ct. 19, reversing (C. C), 164 Fed. 580. An employee in the customs service of the United States who makes and re- turns false weights in connection with an entry of imported merchandise is com- prehended by the words "other person" in the provisions of the customs admin- istration act (Act June 10, 1890, c. 407, § 1, 26 Stat. 131 [U. S. Comp. St. 1901, p. 1886]) for the forfeiture of goods or their value where "any owner, importer, con- signee, agent, or other person"' shall make an entrj' by means of false and fraudulent practices, or shall be guilty of any im- lawful act or omission whereby the United States is deprived of the lawful duties, and for the punishment of such person bj' fine or imprisonment or both. Order (C. C. 1908), 164 F. 580, reversed. United States v. Mescali. 215 U. S. 26, 54 L. Ed. 77. 30 S. Ct. 19, following United States V. Union Supply Co., 215 U. S. 50, 54 L. Ed. 87, 30 S. Ct. 15. 965-27. Oleomargarine — What is arti- ficial coloration. — Oleomargarine made to look like butter of a shade of yellow by the tise of one-half of 1 per cent of palm oil. a vegetable oil recognized as a possible ingredient bv Act Aug. 2. 1886, c. 840, § 2, 24 Stat. 209 (U. S. Comp. St. 1901. p. 2228). is not "free from artificial coloration" within the meaning of the proviso in § 8 of that act. as amended by .Act May 9. 1902, c. 784. § 3. 32 Stat. 194 (U. S. Comp. St. Supp. 1909. p. 864). im- posing a lesser tax on oleomargarine when free from artificial coloration that causes it to look like butter of any shade of yellow, although the addition of such palm oil may give the product a slightly better grain of texture, and a slightly bet- ter physiological effect upon those who eat It. where, but for its coloring power, it probably would not have been used. Moxley v. Hertz. 216 U. S. 344. 54 L. Ed. 510. 30 S. Ct. 305, following Cliff v. United States, 195 U. S. 159, 164. 49 L'. Ed. 139. 107: 966 REVENUE LAWS. Vol. X the doing of business in a corporate or quasi corporate capacity is what was imposed by the act.^^a 2. Constitutionality of* Act. — The tax being an excise, and not a direct, tax is not invalid because not apportioned among the several states according to population. 2^'' Possibility of Destroying Rights of the States. — Nor does the mere possibility that the rights of the several states to create corporations may be practically destroyed by the exercise of the power assumed by congress invali- date the act.^-'' Private Corporations Created by the States. ^ — Nor is the tax invalid because the business taxed is done in pursuance of the authority granted by a state, in the creation of private corporations.^-"^ 966-32a. Construction of tax— Excise tax.— Flint V. Stone Tracy Co., 220 U. 5. 107, 55 L. Ed. 389, 31 S. Ct. 342, fol- lowing Spreckels Sugar Refin. Co. v. Mc- Clain, 193 U. S. 397, 48 L. Ed. 496, 24 S. Ct. 376. ^ , The thing taxed is not the mere deal- ing in merchandise, in which the actual transactions may be the same, whether conducted by individuals or corporations, but the tax is laid upon the privileges which exist in conducting business with the advantages which inhere in the cor- porate capacity of those taxed, and which are not enjoyed by private firms or in- dividuals. These advantages are ob- vious, and have led to the formation of such companies in nearly all branches of trade. The continuity of the business, without interruption by death or disso- lution, the transfer of property interests by the disposition of shares of stock, the advantages of business controlled and managed by corporate directors, the gen- eral absence of individual liability, these and other things inhere in the advantages of business thus conducted, which do not exist when the same business is con- ducted by private individuals or partner- ships. It is this distinctive privilege which is the subject of taxation, not the mere buying or selling or handling of goods, which may be the same, whether done by corporations or individuals. Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 9G6-32b. Apportionment among states. —Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. The tax measured by net annual in- come imposed by Act Aug. 5, 1909, c. 6, § 38, 36 Stat. .112 (U. S. Comp. St. Supp 1909, p. 844), upon the carrying on or doing of business in a corporate _ or quasi corporate capacity, being an excise, and not a direct, tax, is not invalid be- cause not apportioned among the several states according to population. Flint v. Stone Tracy Co.. 220 U. S. 107, 55 L. Ed. 389. 31 S. Ct. 342, distinguishing Pollock V. Farmers' Loan, etc., Co., 157 U. S. 429, 39 L. Ed. 759, 15 S. Ct. 673; S. C, 158 U. S. 601, 39 L. Ed. 1108, 15 S. Ct. 912, and approving Knowlton v. Moore, 178 U. S. 41, 44 L. Ed. 969, 20 S. Ct. 747; Spreckels Sugar Refin. Co. v. McClain, 192 U. S. 397, 48 L- Ed. 496, 24 S. Ct. 376. A tax upon the business done in a corporate capacity is a subject matter of the tax imposed under the Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 U. S. Comp. Stat. Supp. 1909, p. 844; Pollock v. Farm- ers' Loan, etc., Co., 157 U. S. 429, 39 L. Ed. 759, 15 S. Ct. 673; S. C, 158 U. S. 001, 39 L. Ed. 1108, 15 S. Ct. 912, con- strued the tax there levied as direct be- cause it was imposed upon property simply because of its ownership. In the present case the tax is not payable un- less there be a carrying on or doing of business in the designated capacity, and this is made the occasion for the tax measured by the standard prescribed. The difference between the acts is not merel}'' nominal but rests upon substantial dif- ferences between the mere ownership of property and the actual doing of busi- ness in a certain way. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389^ 31 S. Ct. 342. 966-32C. Possibility of destroying rights of states. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. The possibility that the rights of the several states to create corporations may practically be destroyed by the exercise of the power assumed by congress in Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), to impose an excise upon the doing or the carrying on of business in a corporate or quasi corporate capacity, furnishes no ground for judicial interference with the tax. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 966-32d. Private corporations created by the states. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342, citing Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482. When the constitution was framed, the right to lay excise taxes was broadly conferred upon the congress. At that time very few corporations existed. If 1078 Vol. X. REVENUE LAWS. 966 Inequality of Application. — Nor is it invalidated by inequality of applica- tion owing to different local conditions.^^e Exemptions. — The act is not invalidated by the fact that certain classes of corporations are exempted. -^^^ Measuring the Excise. — The act is not invalidated because the excise im- posed is measured by the entire net income from all sources, although a part of such income may be derived from property in itself not taxable ;^^^ or be- cause in measuring the net annual income deduction of interest payments is the mere fact of state incorporation, ex- tending now to nearly all branches of trade and industry, could withdraw the legitimate objects of federal taxation from the exercise of the pow.er con- ferred, the result would be to exclude the national government from many ob- jects upon which indirect taxes could be constitutionally imposed. Let it be supposed that a group of individuals, as partners, were carrying on a business upon which congress concluded to lay an excise tax. If it be true that the forming of a state corporation would de- feat this purpose, by taking the neces- sary steps required by the state law to create a corporation and carrying on the business under rights granted by a state statute, the federal tax would become in- valid and that source of national revenue be destroyed, except as to the business in the hands of individuals or partner- ships. It can not be supposed that it was intended that it should be within the power of individuals acting under state authority to thus impair and limit the exertion of authority which inay be es- sential to national existence. Flint v. Stone Tracy Co., 320 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 966-32e. Inequality of application. — Flint r. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Inequality of application, owing to different local conditions, does not in- validate the excise imposed by Act Aug. 5, 1909. c. 6, § 38-, 3G Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), upon the doing or the carrying on of business in a corporate or quasi corporate capacity. Flint z\ Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. following Knowlton v. Moore, 178 U. S. 41, 44 L. Ed. 969, 20 S. Ct. 747. 966-32f. Exemptions. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 5. Ct. 342. Exempting corporations whose net annual incomes are under $5,000 from the excise imposed by Act Aug. 5, 1909, c. 6. §38, 36 Stat. 112(11. S.Comp. St. Supp. 1909, p. 844), upon the doing or the carry- ing on of business in a corporate or quasi corporate capacity, does not in- validate the tax. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342, followine Knowlton v. Moore, 178 U. S. 41, 44 L. Ed. 969, 20 S. Ct. 747; Magoun v. Illinois, etc., Sav. Bank, 170 U. S. 283, 293, 42 L. Ed. 1037, 18 S. Ct. 594. Labor, agricultural, and horticultural organizations, fraternal and benevolent societies, and organizations for religious, charitable or educational purposes, could be excepted from the operation of the excise imposed by Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), upon the doing or the carry- ing on of business in a corporate or quasi corporate capacity, without invalidating ihe tax. Flint v. Sl(-nc Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Taxing a business when carried on by a corporation, and exempting a similar lousiness when carried on by a partner- ship or by a private individual, as is done i)y Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), imposing an excise upon the carrying on or the doing of business in a corporate or quasi corporate capacity, does not in-' validate the tax, since the only limitation upon the power of congress is uniformity in laying the tax, and tins is a geograph- ical uniformity, which does not re- quire the equal application of the tax to all persons or corporations who may come within its operation. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342, following Knowlton v. Moore, 178 U. S. 41, 44 L. Ed. 969, 20 S. Ct. 747. 966-32g. Measuring the excise. — Flint 7'. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. Measuring the excise imposed by Act .\ug. 5. 1909, c. 6, § 38. 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), upon the carrying on or the doing of business in a corporate or quasi corporate ca- pacity by the entire net income from all sources, does not invalidate the tax, al- though a part of such income may be derived from propertv in itself not tax- able. Flint V. Stone" Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. dis- tinguishing Pollock V. Farmers' Loan, etc.. Co., 157 U. S. 429. 39 L. Ed. 759, 15 S. Ct. 673: S. C, 158 U. S. 601, 39 L. Ed. 1108, 15 S. Ct. 912: Galveston, etc., R. Co. V. Texas, 210 U. S. 217, 52 L. Ed. 1031, 28 S. Ct. 638: Western Union Tel.' Co V. Coleman, 216 U. S. 1, 54 L. Ed. 355, . 30 S. Ct. 190. 1079 966 RBVBXUE LAWS. Vol. X. permitted only in cases of interests paid by banks and trust companies on de- posits, and interest actually paid within the year on bonded or other indebted- ness to an amount not exceeding the paid-up capital stock.32i> ^^^ jg ^.j^g meas- tirement of the net corporate income from all sources so arbitrary and base- less as to fall outside of the authority of the taxing power. ^ 2* 3. Corporations Subject to the Tax — a. Must Be Organized under Some Statute. — It was the intention of congress to embrace within the corporation tax act only such corporations and joint stock associations as are organized under some statute or which derived from that source some quality or lienefit not existing at the common law;-^^^ and hence real estate trusts created by deed which do not derive any benefit from, and are not organized under, any statute of the state, and which, by their terms, end with lives in being and twenty years thereafter, are not subject to the excise imposed by the •act.-"^'^ b. Must Be "Engaged in Business." — See ante, Doing Business, p. 471. (1) In General. — Under the terms of the act the corporation, joint stock company, association or insurance company must be engaged in business in a state or a territory of the United States or in Alaska or in the District of Columbia.-^ 2' (2) Particular Corporations Considered — (a) Real Estate Corporations. — Corporations organized for and actually engaged in such activities as leasing property, collecting rents, managing office buildings, making investments of profits, or leasing ore lands and collecting royalties, managing wharves, divid- ing profits, and in some cases investing the surplus, are engaged in business within the meaning of the act.^-™ But a corporation organized for the pur- 966-32h. Flint z'. Stone Tracy Co.. 220 U. S. 107, .55 L. Ed. 389, 31 S. Ct. 342. The excise measured by net annual in- come, imposed by Act Aug. 5. 1909, c. 6, § 38, 36 Stat. 312 (U. S. Comp. St. Supp. 1909, p. 844), upon the doing or the carry- ing on of business in a corporate or quasi corporate capacity, is not invalid because a deduction of interest payments is per- mitted only in case of interest paid by banks and trust companies on deposits, and interest actually paid within the year on bonded or othei indebtedness to an amount not exceeding the paid up capital stock. Flint r. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389. 31 S. Ct. 342. 966-32i. Flint v. Stone Tracy Co.. 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. The measurement by the net corporate income from all sources of the excise imposed by Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), upon the doing or carrj'ing on of business in a corporate or quasi cor- porate capacity, is not so arbitrary and baseless as to fall outside of the authority of the taxing power. Flint z\ Stone Tracv Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. distinguishing Spreckels Sugar Refin. Co. r. McClain, 192 U. S. 397, 48 L. Ed. 496. 24 S. Ct. 376. 966-32J. Must be organized under some statute.— Eliot ?■. Freeman, 220 U. S. 178, 55 L. Ed. 424, 31 S. Ct. 360, citing Flint V. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 343. Under the terms of the Corporation Tax Act. corporations and joint stock associations must be such as are "now or hereafter organized imder the laws of the United States or of anj^ state or ter- ritory of the United States or under the acts of congress applicable to Alaska of the District of Columbia." Eliot z'. Free- man, 220 U. S. 178, 55 L. Ed. 424, 31 S. Ct. 360, citing Flint v. Stone Tracy Co., 220 U. S. 107. 55 L. Ed. 389, 31 S. Ct. 342. 966-32k. Eliot v. Freeman, 220 U. S. 178, 55 L. Ed. 424, 31 S. Ct. 360. Real estate trusts created by deed for the purchasing, improving, holding, or selling lands and buildings for the ben- efit of the shareholders, which do not derive any benefit from, and are not or- ganized under, anj^ statute of the state, and which, by their terms, end with lives in being and twenty years thereafter, are not subject to the excise imposed by Act Aug. 5, 1909, c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), upon the doing of business by corporations, joint- stock companies, or associations "now or hereafter organized under the laws of the United States or of any state or ter- ritory." Eliot z'. Freeman, 220 U. S. 178, 55 L. Ed. 424. 31 S. Ct. 360. 966-321. Must be engaged in business. —Flint V. Stone Tracy Co.. 220 U. S. 107. 55 L. Ed. 389, 31 S. Ct. 342. See ante, '"Must Be Organized under Some Stat- ute," VT, Di^j, 3. a. 966-32m. Real estate corporations. — Flint z: Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. See ante. . BUSINESS, p. 214. 1080 Vol. X. REJ'EXUE LAIJ'S. 966-980 pose of owning and renting an ofifice building, but which has wholly parted with the control and management of the property, and by the terms of a re- organization has disqualified itself from any activity in respect to it, its sole authority being to hold the title subject to a lease for 130 years, and to re- ceive and distribute the rentals which may accrue under the terms of the lease, or the proceeds of any sale of land, if it shall be sold, is not doing business within the meaning of the act.^-'^ (b) Corporation Owniivi and Leasin(/ 7\:.vicabs. — A corporation owning and leasing taxicabs and collecting rents therefrom is engaged in business within the meaning of the act.^-" c. Public Service Corporations. — Public service corporations, such as street railway companies created under state laws, may constitutionally be subjected to the excise.^-" d. State Agencies. — Corporations acting as trustees, guardians, etc., under the authority of the laws or courts of a state, are not the agents of the state government in such a sense as to be exempt from the tax.^-'' 0. Payment of Internal Revenue Taxes — 4. Lien for Unpaid Taxes — d. Enforcement of Lien. — As against other lienholders the lien of the gov- ernment on distillery property may be enforced by a suit in equity or it may be enforced by the summary remedy of sale by distraint. The statutes give concurrent remedies."^ R. Action by United States to Recover Tax — 1. Form of Action. — See note 45. 966-32n. Znnne r. ^Minneapolis Syndi- cate, 220 U. S. 187. 5.5 L. Ed. 428, 31 S. Ct. 361, following Flint z\ Stone Tracy Co., 220 U. S. 107. 00 L. Ed. 389, 31 S. Ct. 342. 966-320. Corporation ov/ning and leas- ing taxicabs. — Flint :■. Stone Tracy Co., 220 U. S. 107. 55 L. Ed. 389. 31 S. Ct. 342. A corporation owning and leasing taxicabs and collecting rents therefrom is engaged in business within the mean- ing of Act Aug. 5, 1909, c. 6. § 38. 36 Stat. 112 (U. S. Conip._ St. Supp. 1909. p. 844\ imposing an excise upon the doing or carrying on of business in a corporate or quasi corporate capacity. Flint z'. Stone Tracy Co.. 220 U. S. 107, 55 L. Ed. 389. 31 S. Ct. 342. 966-32p. Public service corporations.— Flint c'. Stone Tracy Co., 220 U. S. 107. 55 L. Ed. 389. 31 S. Ct. .342. Public service corporations, such as street railway companies created imder state laws, may constitutionally be sub- jected to the excise imposed by Act Aug. 5. 1909. c. 6, § 38. 36 Stat. 112 (U. S. Comp. St. Supp. 1909. p. 844), upon the doing or carrying on of business in a cor- porate or quasi corporate capacity. Flint z: Stone Tracv Co.. 220 U. S. 107. 55 L. Ed. 389. 31 S. Ct. 342. 966-32q. State agencies. — Flint :■. Stone Tracy Co.. 220 U. S. 107. 55 L. Ed. 389. 31 S. Ct. 342. Corporations acting as trustees, guard- ians, etc.. under the authority of the laws or courts of a state, are not the agents of the state government in such a sense as to be exempt from the imposition, under Act Aug. 5, 1909. c. 6, § 38, 36 Stat. 112 (U. S. Comp. St. Supp. 1909, p. 844), of an excise measured by net income upon the doing or the carrying on of business in a corporate or quasi corpo- rate capacity. Flint z: Stone Tracy Co., 220 U. S. 107. 55 L. Ed. 389, 31 S. Ct. 342. 975-7a. Enforcement of lien. — Black- lock z'. United St?tes. 208 U. S. 75, 52 L. Ed. 396. 28 S. Ct. 228. The remedv afforded by Act July 13, 1866. c. 184. 14 Stat. 98. 107, 108 [U. S. Comp. St. 1901. pp. 2073, 2074. 2077]. of a sale by distraint of whatever interest in real estate a distiller owned when the government's lien for unpaid internal revenue taxes attached, was not super- seded bv Act July 20. 1868, c. 186, § 106, 15 Stat. 125, 167 [U. S. Comp. St. 1901, p. 2081], empowering the commissioner of internal revenue, if he deems it ex- pedient, to proceed to enforce such lien 1^3' a regular suit in equity in a federal court, in which al! persons having liens upon, or claiming any interest in. the premises, can be made parties and can have their rights adjudicated. Judgment (1906). 41 Ct. CI. 89. affirmed. Blacklock f. United States. 208 U. S. 75. 52 L. Ed. 396. 28 S. Ct. 228, distinguishing Mans- field z'. Excelsior Refin. Co.. 135 U. S. 326, 339. 34 L. Ed. 162. 980-45. Form of action. — The United States is not prohil)ited from adopting an action of debt to recover the amount of an internal revenue tax. even where the act provided a special remedy for the 1081 986 REVENUE LAWS. Vol. X. U. Violation of Internal Revenue Laws — 3. Refusai, to Allow Offi- cers TO Enter and Examine: Articles Subject to Taxation. — See note 79. 4. Penalties and Forfeitures Incurred by Dealers in Oleomargarine. — Omitting to Keep Books. — See note 82. 5^^. Selling Packages Containing "Anyt.hing Else" than the Contents When Stamped.— Rev. Stat.' U. S., § 3455, U. S. Comp. Stat. 1901, p. 2279, provides for a seizure, forfeiture and penalty for selling packages which con- tain, at time of sale, anything else than the contents when the same were law- fully stamped by revenue officers, even where there is no intent to defraud, and for a much heavier penalty where there is such fraudulent intent. '^•^'^ The Words "Anything Else." — The words "anything else" in this statute will not be construed to embrace substances which are not in themselves tax- able under the laws of the United States. ^^'^ Thus the sale of a barrel of whis- key to which had been added, after such barrel had been properly stamped by a revenue officer, burnt sugar or caramel as coloring matter, does not au- thorize a seizure and forfeiture. ^^"^ In like manner, it would seem that the addition of water to the contents of a barrel or package is not ground of for- feiture.^^*^ assessment and collection of the tax. United States v. Chamberlin, 219 U. S. 250, 55 L. Ed. 204, 31 S. Ct. 155, follow- ing Dollar Sav. Bank v. United States, 19 Wall. 227, 22 L. Ed. 80. See, generally, ante, ACTIONS, p. 7. 986-79. Right of officers to enter and examine taxable articles. — United States V. Barnes, 222 U. S. 513, 56 L. Ed. 291, 32 S. Ct. 117. See post, "Penalties and For- feitures Incurred by Dealers in Oleomar- garine," VI, U, 4. The express extension of the provisions of Rev. St. U. S., §§ 3232-3241, 3243 (U. S. Comp. St. 1901, pp. 2091-2095), which deal with special taxes, to the special tax on oleomargarine, made by Act Aug. 2, 1886, § 3, c. 840, 24 Stat. 209 (U. S. Comp. St. 1901, p. 2229), imposing such tax, and not purporting to be complete in itself, is not an implied exclusion of the gen- eral provisions of section 3177 (U. S. Comp. St. 1901, p. 2069), for the entry by revenue officers of any building or place where any articles or objects subject to tax are made, produced, or kept, for the purpose of examining such articles or objects. United States v. Barnes, 222 U. S. 513. 56 L. Ed. 291, 32 S. Ct. 117. See post, STATUTES. 986-82. Omitting to keep books.— A corporation is a "person" within the meaning of Act Mav 9. 1902, c. 784, § 1, 32 Stat. 193 (U. S. Comp. St. Supp. 1907, p. 636), requiring wholesale dealers in oleomargarine to keep certain books and make certain retvirns, and providing for punishing by fine and imprisonment "any person who willfully violates any of the provisions of this section," although § 5 of the same act applies in express terms to corporations, and gives the court dis- cretionary power to punish either by fine or imprisonment or both. United States V. Union Supply Co., 215 U. S. 50, 54 L. Ed. 87, 30 S. Ct. 15. 986-83a. Selling packages containing "anything else" than when stamped. — United States v. Graf Distilling Co., 208 U. S. 198, 52 L. Ed. 452, 28 S. Ct. 264. 986-83b. The words "anything else."— United States v. Graf Distilling Co., 208 U. S. 198, 52 L. Ed. 452, 28 S. Ct. 264. Substances which are not in themselves taxable under the laws of the United Stales are not embraced in the words "anything else," as used in Rev. St. U. S., § 3455 [U. S. Comp. St. 1901, p. 2279], providing for a seizure, forfeiture, and penalty for selling* packages which con- tain, at the time of sale, anything else than the contents when the same were lawfully stamped by a revenue officer, even where there is no intent to defraud, and for a much heavier penalty where there is such fraudulent intent. United Stales V. Graf Distilling Co., 208 U. S. 198, 52 L. Ed. 452, 28 S. Ct. 264. 986-83C. Adding burnt sugar to barrel of whiskey. — United States v. Graf Dis- tilling Co., 208 U. S. 198, 52 L. Ed. 452, 28 S. Ct. 264. The sale of a barrel of whiskey to which has been added, after such barrel has been properly stamped by a revenue officer, burnt sugar, or caramel, as color- ing matter, does not authorize the seizure and forfeiture to the United States pro- vided for by Rev. St. U. S., § 3455 [U. S. • Comp. St. 1901, p. 2279], when a barrel or other package contains anything else at the time of sale than the contents which were therein when lawfuU}' stamped. United States v. Graf Dis- tilling Co., 208 U. S. 198. 52 L. Ed. 452, 28 S. Ct. 264. 986-83d. Addition of water. — United 1082 Vol. X. REI^BXUB LAU'S. 1016 IX. Stamp Taxes. P. Action by United States to Recover Tax. — Right of Action. — Ex- press statutory authority for an action by the L'nited States to recover the stamp tax which, under War Revenue Act June 13, 1898, c. 448, § 6, 30 Stat. 451 (U. S. Comp. St. 1901, p. 2291), is to be levied, collected, and paid upon the execution of a conveyance, is given by § 31 of that act, making applicable all administrative, special, or stamp provisions of law, including the laws in relation to the assessment of taxes not heretofore specifically repealed, which must comprehend the authority conferred by Rev. St. U. S., § 3213 (U. S. Comp. St. 1901, p. 2083), to sue for and recover taxes in the name of the United States in any proper form of action, before any federal circuit or dis- trict court for the district within which the liability is incurred, or where the party from whom such tax is due resides. -^^^ Form of Action — Debt. — The stamp tax which, under W^v Revenue Act June 13, 1898, c. 448, § 6, 30 Stat. 451 (U. S. Comp. St. 1901, p. 2291), is to be "levied, collected, and paid" upon the execution of a conveyance, may be recovered by the United States in an action of debt, notwithstanding, the fur- ther provisions of the statute imposing fine or imprisonment for issuing an unstamped conveyance, and making such unstamped instrument inadmissible in evidence, incapable of record, and invalid and of no effect, which must be deemed made in order to induce the payment of the tax, and not as substitutes for payment. ^^'^ Q. Validating Unstamped Instruments. — Conveyances of land pre- viously made, as well as those subsequently executed, were comprehended by Amendment March 2, 1901, c. 806, § 7, 31 Stat. 941 (U. S. Comp. St. 1901, p. 2294), by which the language of the original proviso in War Revenue Act June 13, 1898, c. 448, § 13, 30 Stat. 454, for validating unstamped bonds, de- bentures, or certificates of stock or indebtedness, on making the prescribed payment, was broadened so as to embrace any instrument, document, or paper of any kind or description whatsoever mentioned in Schedule A of the act, which specifically mentioned conveyances of land.^^*^ The satisfaction of a judgment for the recovery of the stamp tax which, under War Revenue Act June 13, 1898, c. 448, 30 Stat. 454 (U. S. Comp. St. 1901, p. 2294) is to be levied, collected, and paid upon the execution of a conveyance, must be deemed the equivalent of the payment of the price of the stamps under § 13 of that act, as amended bv Act March 2, 1901, c. 806, § 7, 31 Stat. 941 (U. S. Comp. St. 1901, p. 2294), validating unstamped instru- ments on making the prescribed payment, in view of Rev. St. U. S., § 3216 (U. S. Comp. St. 1901, p. 2084), providing that all judgments and moneys re- States V. Graf Distilling Co., 208 U. S. 1016-56a. Right of action.— United 198. 52 L. Ed. 452, 28 S. Ct. 264. States v. Chamberlin, 219 U. S. 250, 55 "It has been held under other sections L. Ed. 204, 31 S. Ct. 155, reversing judg- of this act, somewhat similar, that the ment 156 Fed. 881, 84 C. C. A. 461, 13 A. addition of water to the contents of a &- E. Ann. Cas. 720. barrel or package is no ground of for- 1016-56b. Form of action — Debt. — feiture. We do not say that the Ian- United vStates f. Chamberlin, 219 U. S. guage is exactly the same, but only that 250, 55 L. Ed. 204. 31 S. Ct. 155, revers- it is somewhat similar." United States t'. ing judgment (1907), 156 F. 881, 84 C. C. Graf Distilling Co., 208 U. S. 198. 52 L. A. 461. 13 A. & E. Ann. Cas. 720. See Ed: 452, 28 S. Ct. 264. citing United ante. DEBT. THE ACTIOX OF, p. 457. States V. 32 Barrels of Distilled Spirits, 1016-56c. Conveyances of land pre- 5 Fed. 188; 3 Packages of Distilled viously made. — United States z'. Cham- Spirits, 14 Fed. 569; United States i\ berlin. 219 U. S. 250, 55 L. Ed. 204, 31 S. Bardenheier, 49 Fed. 846, 848; United Ct. 155, reversing judgment (1907), 156 States ex rel. United States Attorney t-. F. 881. 84 C. C. A. 461. 13 A. & E. Ann. 9 Casks & Packages of Distilled Spirits, Cas. 720. 51 Fed. 191. 10S3 1016-1019 RUBBBROID. Vol. X. covered or received for taxes, costs, forfeitures, and penalties shall be paid to collectors as internal taxes are required to be paid.'^*''^ REVERSIBLE ERROR. — See ante, xAppeal and Error, p. 34. REVERSIONS. — See ante, Rp^mainders, Reve;rsions and Executory In- terests, p. 1057. REVIEW. — See ante, Appeal and Error, p. 34; Bill of Review, p. 203.' Certiorari, p. 228; Extradition, p. 571; Mandamus, p. 838; Military Law, p. 862. And see the particular titles throughout this supplement. REVIVAL. — See ante. Abatement, Revival and Survival, p. 1. REVOCATION. — As to revocation of power, see ante, Powers, p. 998. As to revocation of will, see post. Wills. REWARDS. — See the title Rewards, vol. 10, p. 1017. and references there given. RIGHT OF CONTRACT.— See ante. Civil Rights, p. 236. RIGHT OF EMINENT DOMAIN.— See ante. Eminent Domain, p. SZ7. RIGHT OF ENTRY.— See ante. Mines and Minerals, p. 865; Public Lands, p. 1012. RIGHT OF FISHERY.— See ante. Fish and Fisheries, p. 583. RIGHT OF WAY.— See note 1. RIPARIAN OWNERS.— See ante. Constitutional Law, p. 264. RIPARIAN RIGHTS.— See ante. Navigable Waters, p. 914; post. Waters AND Watercourses. RIVERS. — See ante, Boundaries, p. 206; Xavigai'.le Waters, p. 914; post, Waters and Watercourses. ROADS. — See post. Streets and Highways. ROBBERY.— See the title Robbery, vol. 10. p. lOlO and references there given. ROMAN CATHOLIC CHURCH.— See ante. Religious Societies, p. 1055. RUBBEROID. — The word "rubberoid" is a descriptive term, meaning "like rubber."-^ 1016-56d. Satisfaction of judgment. — is much used as an English formative, United States c'. Chamberlin, 219 U. S. chiefly in scientific words.' Rubberoid, 250, 55 L. Ed. 204, 31 S. Ct. 155, reversing theretore, is a descriptive woiu, mcanuig judgment 156 F. 881, 84 C. C. A. 461, 13 'like rubber.' " Standard Paint Co. v. A. & E. Ann. Cas. 720. Trinidad Asphalt Mfg. Co., 220 U. S. 446, 1018-1. Right of way.— "As said by 454, 55 L. Ed. 536, 31 S. Ct. 456. Circuit Judge Sanborn, delivering the The word ruberoid is descriptive, not opinion of the court of appeals (p. 646) : indicative of the origin or the owner- "The ordinary signification of the term ship of the gooas; and, being oi tnat right of way, when used to describe land quality, does not lose such quality and be- which a railroad corporation owns or is come arbitrary by being misspelled; hence entitled to use for railroad purposes, is is not subject to appropriation as a trade- the entire strip or tract it owns or is en- mark. Bad orthosrc^phy has not yet be- titled to_ use for this purpose, and not come so rare or so easily aetectea as to any specific or limited part thereof upon make a word the arbitrary sign of some- wnicn Its main track or other specined thing else than its conventional meaning, improvements are located.' " St. Louis. as different, to bring the example to the etc., R. Co. V. Wabash R. Co., 217 U. S. present case, as the character of an arti- 247, 253, 54 L. Ed. 752, 30 S. Ct. 510. Sec cle is from its origin or ownership. It ante, RAILROADS, p. 1046. was held that the word ruberoid was ^ 1019-2a. "Rubberoid is defined in the not the subject of exclusive appropnauon Century Dictionary as a trade name for as a trademark for a flexible waterproof an imitation o^ hard rubber. It is a com- roofing. Standard Paint Co. v. Trinidad pound of the word 'rubber' and the suffix Asphalt Mfg. Co., 220 U. S. 446, 55 'oid.' and 'oid' is defined in the same die- L. Ed. 536, 31 S. Ct. 456. See post, tionary as meaning 'having the form or TRADEMARKS, TRADENAMES AXD resemblance of the thing indicated, "like.'" UNFAIR COAIPETITION. as in anthropoid, like man; crystalloid. Trademarks and tradenames. — As to a like crystal; hydroid, like water; etc. It manufacturer of roofing under the name 1084 Vol. X. SALE OF LAND. 1020 RULE IN SHELLEY'S CASE.— See post, Shelli^y's Case, Rule in. RULE OF REASON, — See ante. Monopolies and Corporate Trusts, p. 874. RULES OF COURT. CROSS REFERENCES. See the title Rules of Court, vol. 10, p. 1019, and references there given. A rule of a federal circuit court which is inconsistent with the laws of the United States is invalid.'"' The conformity requirement of U. S. Rev. Stat., § 914, U. S. Comp. Stat. 1901, p. 684, does not necessitate altering a rule of a federal circuit court as to the return day for process, adopted under the authority of § 918, in conformity with the state practice then existing, so as to conform to a change in such prac- tice made by subsequent state legislation.'"' SAC AND FOX ANNUITIES.— See ante, Indians, p. 641. SACRIFICE.— See ante. General Average, p. 608. SAFETY APPLIANCE ACT.— See ante, Actions, p. 7; Interstate and T'oREiGN Commerce, p. 689; Master and Servant, p. 851; Negligence, p. 920. SAILING VESSELS.— See ante. Collision, p. 243; post, Ships and Ship- ping. SAILORS. — See post, Seamen. SALE OF LAND. — See ante. Judicial Sales, p. 812; post, A^endor and I^'RCHASER. of ruberoid not making out a case of un- fair competition against another manu- facturer of roofing using the word rub- bero to designate its products, see post, TRADEMARKS. TRADENAMES AND UNFAIR COMPETITION. 1020-6a. Rule inconsistent with laws of United States is invalid. — Davidson Bros Marble Co. r. United States, 213 U. S. 10, 53 L. Ed. 675, 29 S. Ct. 324. A rule of a federal circuit court which treats as a general appearance a special appearance by a party sued in the wrong federal district, made solely for the pur- pose of objecting to the jurisdiction, Avithout stating that, if the purpose for which such special appearance is made shall not be sanctioned or sustained by the court, he will appear generally in the case, is invalid, as substantially im- oairing his right under the act of March 3, 1891 f'JG Stat, at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488), § 5, to appear specially and object to the jurisdiction of the court, and bring an adverse decision directly to the supreme court for review. Davidson Bros. Marble Co. z'. United States, 213 U S. 10, 53 L. Ed. 675. 29 S. Ct. 324. 1020-6b. Effect of conformity require- ment. — Boston, etc.. Railroad r. Gokey, 310 U. S. 155. 52 L. Ed. 1002, 28 S. Ct. 657. 1085 1040 SALES. Vol. X. SALES. III. Transfer of Title, 1086. C. Delivery, 1086. 2. Delivery to Carrier for Shipment, 1086. a. General Rule, 1086. b. Exceptions to Rule — Qualified Delivery, 1087. (3) Goods Shipped upon Account and Risk of Shipper, 1087. VI. Remedies, 1087. A. Remedies of Seller, 1087. 3. Action for Price or \^alue, 1087. c. Defenses, 1087. (1) In General, 1087. (3) A'endor Part of Illegal Combination, 1087. (5) Liens upon the Property Purchased, 1087. (6) Failure to Deliver within Time Specified, 1087. IX. Conditional Sales, 1087. A. What Constitutes, 1087. C. Validity, Form and Requisites, 1087. 3. Possession Delivered to Vendee, 1087. a. At Common Law, 1087. b. Under Recording Acts, 1087. D. Construction. Operation and Effect, 1087. 5. Rights of Parties and Third Persons. 1087. a. Right of A'endee to Convey or Subject to Execution, 1087. CROSS REFERENCES. See the titles Sales, vol. 10, p. 1022, and references there given. In addition, see ante, Bankruptcy, p. 168; Constitutional Law, p. 264; Courts, p. 398; Duress, p. 533; Due Process of Law, p. 475; Instructions, p. 672; Negligence, p. 920; Police Power, p. 955. As to the admissibility of evidence to show the real character of a written con- tract, in the form of a conditional sale, see ante. Parol Evidence, p. 931. As to sales to the United States, see post. United States. III. Transfer of Title. C. Delivery — 2. Delivery to Carrier for Shipment — a. General Rule. — See note 85. Where a purchaser of goods directs their delivery for his account to a designated carrier, the latter becomes the agent of the purchaser, and de- livery to such carrier is a legal delivery to the purchaser.^^^ And when, on the delivery of goods to a carrier, bills of lading are issued for the delivery of the goods to the consignee or his order, the acceptance by the consignee of such bills of lading constitutes a delivery. ^^^b 1040-85. Delivery to carrier— General Ct. 100. rule. — United States v. Aadrews & Co., Deliver}' of paper purchased by the 207 U. S. 229, 52 L. Ed. 185, 28 S. Ct. 100, United States for the public printing of- afifiiming 41 Ct. CI. 48. fice in the Philippine Islands to the car- 1040-85a. Direction by purchaser as to rier designated by the government, delivery to carrier. — United States v. An- coupled with the acceptance by the gov- drews & Co., 207 U. S. 229, 52 L. Ed. 185, ernment of the bills of lading made to 28 S. Ct. 100. the consignee or his order, constitute a 1040-85b. Acceptance of bills of lading delivery to the United States, relieving by consignee. — United States f. Andrews the seller of risk of injury during ship- & Co., 207 U. S. 229, 52 L. Ed. 185, 28 S. ment, although the words "f. o. b. 10S6 Vol. X. SALES. 1041-1060 b. Exceptions to Rule — Qualified Delivery — (3) Goods Shipped upon Account and Risk of Shipper. — See note 90. VI. Remedies. A. Remedies of Seller — 3. Action for Price or Vai,ue — c. Defenses — (1) In General. — A purchaser of cattle and feed can not defeat a recovery of all of the purchase money because of a deficiency in the stated amount of feed, where all the cattle are delivered, and the recited amount of feed is not guaranteed, and he acts on his own inspection. ^^'^ (3) Vendor Part of Illegal Combination. — See ante, ^Monopolies and Cor- P0R.\TE Trusts, p. 874. (5) Liens upon the Property Purchased. — Recovery on a contract for the pur- chase of cattle can not be defeated because liens existed on those not stated to be subject to liens, where the possibility of such liens was contemplated by the con- tract, and they were satisfied out of the purchase money.^-^'' (6) Failure to Deliver zvithin Time Specified. — Failure to deliver cattle within the time specified by the contract will not defeat a recovery of the purchase money, where, by statute, time is not of the essence of the contract unless by its terms expressly so provided, and the cattle were accepted without objection on that ground. ■^^'^ IX. Conditional Sales. A. What Constitutes. — A contract which gives the purchaser the right to resell in the ordinary course of business, but provides that title shall remain in the seller until such resale, and that the proceeds derived therefrom, in whatever form existing, shall be the property of the seller, is a conditional sale.''^^ C. Validity, Form and Requisites — 3. Posse;ssion Delivered to Vendee — a. At Common Law. — See note 71. b. Under Recording Acts. — In Arkansas, a contract which gives the pur- chaser the right to resell in the ordinary course of business, but provides that title shall remain in the seller until such resale, and that the proceeds derived there- from, in whatever form existing, shall be the property of the seller, is, valid with- out record.'-'' D. Construction, Operation and Effect — 5. Rights of Parties and Third Persons — a. Right of J'endee to Convey or Subject to Execution. — See note 81. Manila" were used in the proposal by 1054-66a. Contract held a conditional which the negotiation was commenced, sale. — Bryant v. Swofford Bros. Dry where the context and subsequent corre- Goods Co., 214 U. S. 279, 53 L. Ed. 997, spondence showed that these words were 29 S. Ct. 614. used as implying that, in as much as the 1055-71. Possession delivered to vendee. freight to Manila was to be mcluded m —Bryant v. Swofford Bros. Dry Goods the purchase price, it was to be pri- q^^ 214 U. S. ?79, 53 L. Ed. 997, 29 S. Ct. manly deirayed by the seller. Judgment, 614, affirming 153 Fed. Rep. 841, 83 C. C. R. P. Andrews & Co. v. United States ^ 23 (1905), 41 Ct. CI. 48, affirmed. United " ._„ ^„ n 4. ^ ^ua ;„ a^u „c,,o c, , \ A on nnr, TT e oon 1056-72a. Contract valid in Arkansas Stales Z-. Andrews & Co., 207 U. S. 229, -^u .. j r> <- c ^a^^A '" L Ed 18" ''8 S Ct 100 without record. — Bryant v. bworford "^"in/ii ar\ n^^^Ac '^uir^r^^A ^l ^JoU ^f .-^r, Bros. Dry Goods Co., 214 U. S. 279, 53 1041-90. uoods snipped at risk or con- j r^, v'^ or, o n^ r-iA ^ffir-^;^rr 1-3 • „ TT -^ 1 c i. \ J on E. Ed. 997, 29 S. Ct. 614, arnrmmg lo3 signor. — United States z\ Andrews & Co., tf ,^^ o--, 00 r^ r^ a 00 c^o oi^^ 207 U. S. 229. 52 L. Ed. 185, 28 S. Ct. 100. ^^f' l^^^rnvr^A^r frrq I io4 ' 1048-34a. Where a deficiency will not ^"^e, RECORDING ACTS. p. 10o2. defeat recovery of all purchase money.— 1060-81. The lien created m Ilhnois by Snyder v. Rosenbaum, 215 U. S. 261, 54 the delivery to the sheriff of an execution L. Ed. 186, 30 S. Ct. 73. o" 3 judgment attaches to the property 1048-35a. Liens upon the property pur- held by the judgment debtor under a chased.— Snyder t: Rosenbaum, 215 U. S. contract of conditional sale, and is para- 261, 54 L. Ed. 186, 30 S. Ct. 73. mount to the rights of the conditional 1048-3513. Failure to deliver within vendor. Rock Island Plow Co. v. Rear- time specified.— Snvder z: Rosenbaum, aon, 222 U. S. 354, 56 L. Ed. 231, 32 S. 215 U. S. 201, 54 L. Ed. 186, 30 S. Ct. 73. Ct. 164. 1087 1064-1067 SALVAGE. Vol. X. SALINE LANDS.— See ante, Pubuc Lands, p. 1012. SALVAGE. I. Definition and Nature, 1088. IL Necessary Elements, 1088. B. Property in Peril, 1088. C. The Service Rendered. 1088. 1. In General, 1088. 3. Saving Vessels from Fire, 1088. IV. Property Liable for Salvage, 1088. B. A^ssels Lying at Wharf, 1088. XII. Procedure, 1089. G. Review, 1089. CROSS REFERENCES. See the title Salvage, vol. 10, p. 1062, and references there given. In addition, see ante, Admiralty, p. 10; Appeal and Error, p. 34; Courts, p. 398. As to abatement of action on pending claim of owners of vessel of benefits of the limited liability provisions, see ante. Abatement, Revival and Survival, p. 1. As to jurisdiction of causes, see ante. Admiralty, p. 10. I. Definition and Nature. See note 1. II. Necessary Elements. B. Property in Peril. — See note 6. C. The Service Rendered — 1. In General. — See note 9. 3. Saving Vessels from Fire. — See note 11. IV. Property Liable for Salvage. B. Vessels Lying at Wharf.— See note 34. 1064-1. Definition. — The Steamship Jef- character of services upon which a claim ferson, 215 U. S. 130, 54 L. Ed. 125, 30 to salvage may be based was pointed out S. Ct. 54. in the definition of salvage given in the 1064-6. Property in peril.— "In the na- opinion in The Blackwall, 10 Wall. 1, Uire of things it is manifest, and indeed 19 L. Ed. 870, where it was said (p. 12): it is settled, that, because of the broad 'Salvage is the compensation allowed to scope of the admiralty jurisdiction in persons by whose assistance a ship or this country, the perils out of which a her cargo has been saved, in whole or in salvage service may arise are all of such part, from impending peril on the sea, or perils as may encompass a vessel when in recovering such property from actual upon waters which are within the ad- loss, as in cases of shipwreck, derelict, or miralty jurisdiction of the United States; recapture.'" The Steamship Jefiferson. from which it follows that the right to 215 U. S. 130, 54 L. Ed. 125. 30 S. Ct. 54. recover for salvage services is not 1065-9. The Steamship Jefferson, 215 limited to services concerning a peril oc- U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54. curring on the high seas or within the 1065-11. Service by tugs to vessel in ebb and flow of the tide. And although dry dock. — A court of admiralty has iu- in defining salvage, the expression 'peril risdiction of a libel claiming salvage for of the sea' has sometimes been used as services rendered by tugs in subduing a equivalent to "peril on the sea,' it is set- fire communicated from the shore to a tied that the distress or danger from ^^essel undergoing repairs in a dry dock which a vessel has been saved need not, from which all the water had been in order to justify a recovery of salvage emptied. The Steamship Jefiferson, 215 compensation, have arisen solely by rea- U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54. See son of a peril of the sea in the strict legal ante, ADMIRALTY, p. 10. acceptation of those words. The varied 1067-34. Vessel lying at wharf.— The 1088 Vol. X. SB A BEACH. 1075-1079 XII. Procedure. G. Review. — See ante, Admiralty, p. 10; Appe;al and Error, p. 34. SAME OFFENSE.— See ante, Autrefois, Acquit and Convict, p. 161. SATISFACTION.— See ante. Executions, p. 563; Judgments and De- crees, p. 807; Mortgages and Deeds of Trust, p. 891; Payment, p. 945. SAVINGS BANKS.— See ante. Banks and Banking, p. 184. SCHEDULE.— See ante. Revenue Laws, p. 1071. SCHEMES.— See note a. SCHOOL FUNDS.— See ante, Civil Rights, p. 236. SCHOOL GRANTS.— See ante, Public Lands, p. 1012. SCHOOLS AND SCHOOL DISTRICTS.— See the title Schools and School Districts, vol. 10, p. 1075, and references there given. In addition, see ante, Civil Rights, p. 236; Constitutional Law, p. 264; Due Process OF Law, p. 475 ; Police Power, p. 955 ; post, Statutes. SCIRE FACIAS.— See the title Scire Facias, vol. 10, p. 1076, and refer- ences there given. SCRAP. — See post, Unmanufactured Tobacco. See, also, ante. Revenue Laws, p. 1071. SEA. — See ante. Admiralty, p. 10; International Law, p. 686; Navi- gable Waters, p. 914. SEA BEACH.— See note la. Steamship Jefferson, 215 U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54. A steamship while in dry dock, under- going repairs, was subject to the juris- diction of a court of admiralty and liable lor a salvage service. The bteamship, be- fore being docked, had been engaged in navigation, was dedicated to the purposes of transportation and commerce, and had been placed in the dry dock, to undergo repairs to fit her to continue in such navigation and commerce. The Steam- ship Jefferson, 215 U. S. 130, 54 L. Ed. 125, 30 S. Ct. 54. "It can not be held that a ship or ves- sel employed in navigation and com- merce is any the less a maritime subject within the admiralty jurisdiction when, for the purpose of making necessary re- pairs to fit her for continuance in navi- gation, she is placed in a dry dock and the water removed from about her, than would be such a vessel if fastened to a wharf in a dry harbor, where, by the natural recession of the water by the ebbing of the tide, she for a time might be upon dry land. Clearly, in the case last supposed, the vessel would not cease to be a subject within the admiralty ju- risdiction merely because, for a short period, by the operation of nature's laws, water did not flow about her. Nor is there any difference in principle between a vessel floated into a wet dock, which is so extensively utilized in England for commercial purposes in the loading and imloading of vessels at abutting quays, ;'nd the dry dock into which a vessel must he floated for the purpose of being repaired, and from which, after being re- paired, she is again floated into an ad- jacent stream. The status of a vessel is not altered merely because, in the one case, the water is confined within the dock by means of gates closed when the tide begins to ebb, while, in the other the water is removed and the gates are closed to prevent the inflow of the water during the work of repair." The Steam- ship Jefferson, 215 U. S. 130, 54 L. Ed. 125. 30 S. Ct. 54. See, also, ante, AD- MIRALTY, p. 10. 1075-a. Use of mails for schemes to de- fraud. — Section 3894, Rev. Stat., applies to the use of the mail for the purpose of promoting lotteries or other like schemes of chance, while § 5480 is intended to pro- hibit the use of the mail to carry on schemes of general fraud, the language being "any scheme or artifice to defraud." The words "or concerning schemes de- vised for the purpose of oljtaining money or property by false pretenses" are to be limited to schemes having a similitude to the lottery and other like schemes partic- ularly described by the particular words of the section, and do not cover the use of the mails to promote other schemes to obtain money or property by means of false pretenses, which arc embraced by the provisions of § 5480. United States V. Stever, 222 U. S. 167, 174, 56 L. Ed. 145, 32 S. Ct. 51. Sec ante, POSTAL LAWS, p. 996. 10f9-la. Sea beach. — An instruction that a grant from the King of Hawaii of the upland above a street down to what was then its upper side, "and also the sea 12 U S Enc— 69 1089 1085 SEARCHES AND SEIZURES. Vol. X. SEALS AND SEALED INSTRUMENTS.— See the title Seals and Sealed Instruments, vol. 10, p. 1079, and references there given. SEAMEN. III. Wages, 1090. E. Protection of Wages from Seizure by Attachment or Execution, 1090. CROSS REFERENCES. See the title Seamen, vol. 10, p. 1082, and references there given. And as to the applicability of the immigration laws to sailors deserting while on shore leave, see ante, Aliens, p. 18. III. Wages. E. Protection of Wages from Seizure by Attachment or Execution. — Seamen's wages are protected from seizure after judgment by attachment or pro- ceedings in aid of execution by the provisions of Rev. St. U. S., § 4536 (U. S.' Comp. St. 1901, p. 3082), that no wages due or accruing to any seaman shall be subject to attachment or arrestment from any court, and declaring that payment of wages to seamen shall be valid notwithstanding any previous sale or assign- ment or any attachment, incumbrance, or arrestment, and that no assignment or sale of wages, made prior to the accruing thereof, shall be binding, except certain authorized advance securities, when construed in the light of other provisions of the same title, enacted to secure to the seaman his remedy in admiralty for the re- covery of his wages by condemnation of the ship.^^^ SEARCHES AND SEIZURES. CROSS REFERENCES. See the title Searches and Seizures, vol. 10, p. 1087, and references there given. In addition, see ante, Admiralty, p. 10; Constitutional Law, p. 264; Pen- alties AND Forfeitures, p. 945; Prize, p. 1007; Revenue Laws, p. 1071. As to the seizure and confiscation of impure and unwholesome food stuffs, see ante. Due Process of Law, p. 475 ; Interstate and Foreign Commerce, p. 689. As to whether requiring a bankrupt to produce books and papers is an infringe- ment of the conditional guaranty, see ante, Constitutional Law, p. 264. Unreasonable Searches and Seizures as Regards the Fourth and Fifth Amendments. — See, generally, ante. Constitutional Law, p. 264. As to the admissibility in evidence of papers, prints, documents, etc., unlawfully seized, see ante, Constitutional Law, p. 264. General Object and Purpose of Fourth Amendment. — The fourth beach in front of the same down to low- would seem that if the words "the sea water mark," includes the strip between beach" be taken in a very strict sense, the front lines of the upland, as described there would have been a strip not con- by metes and bounds, and high-water veyed, between the front lines of the up- mark, can not be deemed erroneous by land as described by metes and bounds, the federal supreme court without having and the beach — that is, high-water mark, the evidence before it, where the supreme Spreckels v. Brown, 212 U. S. 208, 53 L. court of Hawaii, in upholding the instruc- Ed. 476, 29 S. Ct. 256. See ante, APPEAL tion, said that the area between the part AND ERROR, p. 34. described and high-water mark was not 1085-I9a. Protection of wages from very extensive, was of little value, and seizure by attachment or execution.— was closely connected with the upper wilder v. Inter-Island Steam Nav. Co.,. part in use. Ihis is true although from o^ y. S. 239, 53 L. Ed. 164^ 29 S. Ct. 58.. the facts that appear but imperfectly, it 1090 Vol. X. SEARCHES AND SEIZURES. 1088 amendment of the constitution, protecting against unreasonable searches and seizures, was adopted to protect against abuses in judicial procedure under the guise of law, which invade the privrxy of persons in their homes, papers and ef- fects, and applies to criminal prosecutions and suits for penalties and forfeitures under the revenue laws.^^'' Where Other Party Entitled to Have Documents Produced. — There is no unreasonable search and seizure when a writ, suitably specific and properly limited in its scope, calls for the production of documents which, as against their lawful owner to whom the writ is directed, the party procuring its issuance is en- titled to have produced. ^i'' Seizure or Compulsory Production of Corporate Books and Papers. — The protection against unreasonable searches and seizures afforded by the fourth amendment of the federal constitution can not ordinarily be invoked to justify the refusal of an officer of a corporation to produce its books and papers in obe- dience to a subpoena duces tecum, either in a criminal investigation or proceeding, or in an action to recover a statutory penalty.^ ^'^ 1088-lla. General object and purpose of fourth amendment. — Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342; Boyd v. United States, 110 U. S. 616, 632, 29 L. Ed. 746, 6 S. Ct. 524. 1088-llb. Where other party entitled to have documents produced. — Wilson ?■. United States, 221 U. S. 361, 55 L. Ed. 771. 31 S. Ct. 538. 1088-llc. Seizure or compulsory pro- duction of corporate books and papers. — American Lithographic Co. i: Werck- meister, 221 U. S. 603, 55 L. Ed. 873, 31 S. Ct. 676, affirming judgment (1908), 165 F. 426, 91 C. C. A. 376; Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771. 31 S. Ct. 538. See, also, ante, CONSTITU- TIONAL LAW, p. 264. The enforced production before a grand jury engaged in investigating the alleged criminal conduct of corporate of- ficers, directors, and stockholders of the letter-press copy books of the corpora- tion for two specified months, in the pos- session of its president, under a sub- pcena duces tecum directed to the cor- poration, does not violate the provisions of Const. Amend. 4, forbidding unreason- able searches and seizures. Wilson v. United States, 221 U. S. 361, 55 L. Ed. 771, 31 S. Ct. 538. Under Vermont Act of October 9, 1906. — .^.n unreasonable search and seizure of the private books and docu- ments of a corporation doing business in the state is not made by the proceedings under Act Vt. Oct. 9, 1906, p. 79, No. 75, to compel the production before a grand iury of material books and papers called for by a notice limited to such books or papers as relate to or concern any deal- ings or business between January 1,1904, and the date of the notice, October 10, 1906, with the parties named therein, who were cattle commissioners of the state, to be used relative to the matter of a complaint pending, and then and there to be investigated by the grand jury, in which the persons named in the notice were charged with having unlawfully sold diseased meat for food purposes at Burlington, Vt., the notice also giving in detail the dates and amounts of checks and vouchers which the company was required to produce. Judgment, In re Consolidated Rendering Co. (Vt. 1907), 66 A. 790, affirmed. Consolidated Ren- dering Co. z'. Vermont, 207 U. S. 541, 52 L. Ed. 327. 28 S. Ct. 178. Same — Infringement of same principle as embodied in state constitution. — An order issued under Laws 1906, p. 79, No. 75, directing a corporation to produce be- fore a grand jury certain books and pa- pers, and sufficiently describing them, is in eflfect the same as a subpoena duces tecum, except that it applies to a cor- poration, and where it requires no search of the company to find the hooks and papers demanded, and no hardship to produce them, the order is not for an unreasonable search or seizure, in viola- tion of Const., art. 11, as no force or auest by the officer is authorized, and that article was not intended to interfere with the power of the court to compel the production of documentary evidence in any proceeding therein. (1907), In re Consolidated Rendering Co.. 66 A. 790, 80 Vt. 55. judgment affirmed. Consoli- dated Rendering Co. v. Vermont. 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. Laws 1906, p. 79, No. 75, providing that any corporation doing business in the state shall upon notice produce before any court, grand jury, tribunal, or com- mission actinrr under authority of the state, all books, correspondence, memo- randa, papers, and data which mav con- tain any account, reference, or informa- tion concerning the proceedings or sub- ject of inquiry pending before the body, and which may nl any time have been made or kept within the state and are in the custody of the corporation, or which relate to any transaction within the state 1091 1088 SELF-DBFBNSB. Vol. X. Requiring Interstate Carriers to Make Sworn Reports as to Excess Service under Hours of Labor Act. — See ante, Interstate; and Foreign Commerce, p. 689. Requiring Sworn Tax Returns and Making Same Public Documents Open to Public Inspection. — [Making the returns for the assessment of the excise imposed by the Act of August 5, 1909, § 38, on the doing or the carrying on of business in a corporate or quasi corporate capacity, pubhc documents and open to inspections as such, under certain restrictions, as is done by subsection 6 of that act, as amended by the Act of June 17, 1910 (Stat, at L. 2d Sess. 61st Cong. 494, chap. 297), does not do violence to the constitutional protection against unreasonable searches and seizures. ^^'^ Certainly the amendment was not in- tended to prevent the ordinary procedure in use in many, perhaps most, of the states, of requiring tax returns to be made, often under oath.^^® SEA SERVICE.— See ante. Army and Navy, p. 150. SEAWORTHINESS.— See post, Ships and Shipping. SECONDARY EVIDENCE.— See ante. Best and Secondary Evidence, p. 202. SECRETARY OF INTERIOR.— See ante. Indians, p. 641; AIandamus, p. 838. SECTARIAN SCHOOL APPROPRIATIONS.— See ante, Indians, p. 641. SECTION. — See ante. Public Lands, p. 1012 ; post. Statutes. SECURITY FOR COSTS.— See ante. Appeal and Error, p. 34; Costs, p. 396. SELF-DEFENSE.— See ante. Homicide, p. 619. or with parties residing or having a place of business therein; and providing for the manner of service of the order to produce and for punishment for con- tempt in case of noncompliance, does not contravene Const., art. 11, relating to the search or seizure of property and the particularity of description required in M^arrants therefor, since the act restricts the order to such books and papers as contain information concerning the sub- ject of inquiry, and is sufficiently definite and limited. (1907), In re Consolidated Rendering Co., 66 A. 790, 80 Vt. 55, judg- ment affirmed. Consolidated Rendering Co. V. Vermont, 207 U. S. 541, 52 L. Ed. 327. 28 S. Ct. 178. The order and proceedings for con- tempt for a violation thereof were not an infringement of Const., art. 11, as a seizure, on account of the fact that no lender was m.ade to cover the fees and expenses for appearing before the court with the books and documents, since un- der the law it is the duty of any witness summoned in behalf of the state in a criminal case to appear according to the summons without a preliminary tender of his fees. (1907), In re Consolidated Ren- dering Co., 66 A. 790, 80 Vt. 55, judgment aflirmed. Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 52 L. Ed. 327, 28 S. Ct. 178. Under Arkansas Antitrust Act of Jan- uary 23, 1905 — Operation of fourteenth amendment.— Conceding, but not decid- ing, that the due process clause of the fourteenth amendinent operates to for- bid unreasonal)le searches and seizures, an order directing a foreign corporation sued for violating the Arkansas Anti- trust Act of January 23, 1905, to produce as witnesses before a commission cer- tain named officers, agents, directors, and employees, and to prodtice any books, papers, or documents in the possession or under the control of such witnesses, relating to the merits of the cause or to any defense therein, does not amount to an unreasonable search and seizure, even though the books and papers called for may not have been at any time kept within the state of Arkansas. Hammond Packing Co. v. Arkansas. 212 U. S. 322, 53 L. Ed. 530, 29 S. Ct. 370. 1088-lld. Requiring sworn tax returns and making same public documents open to public inspection. — Flint v. Stone Tracy Co.. 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. This feature of the law does not do violence to the constitutional protection of the fourth amendment, and, this is equally true of the fifth amendment, protecting persons against compulsory self-incriminating testimony. Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 1088-lle. Same.— Flint v. Stone Tracy Co., 220 U. S. 107, 55 L. Ed. 389, 31 S. Ct. 342. 109S Vol. X. SBNTBXCE AXD PUXISHMBNT. 1094 SELF-INCRIMINATION.— See ante, Constitutional Law, p. 264; Due Process of Law. p. 475. SEMAPHORES.— See ante, Lntereocking Plant, p. 686. SENTENCE AND PUNISHMENT. I. Sentence, 1093. C. Conformity to Statute as to Character and Extent of Punishment, 1093. 3. Sentence Not within Jurisdiction Void, 1093. b. When Sentence within Jurisdiction, 1093. (2) Excessive Sentences. 1093. D. \"aHditv of Sentence Where Some Counts Good and Others Bad, 1093. II. Punishment,' 1094. E. Particular Punishments Considered, 1094. 3. Capital Punishment, 1094. b. Qualification of Sentence by Court or Jury, 1094. CROSS REFERENCES. See the title Sentence and Punishment, vol. 10, p. 1090, and references there given. In addition, see ante. Autrefois, Acquit and Convict, p. 161 ; Constitu- tional Law, p. 264; Contempt, p. 367; Due Process of Law, p. 475; ]\Iilitary Law, p. 862. As to the power of the appellate court to convict of greater oft'ense, see ante, Appeal and Error, p. 34. I. Sentence. 0. Conformity to Statute as to Character and Extent of Punishment — 3. Sentence Not within Jurisdiction Void — b. JJlien Sentence zcithin Juris- diction — (2) Excessive Sentences. — See note 9. D. Validity of Sentence Where Some Counts Good and Others Bad. — The rule that on a general verdict of guilty upon an indictment containing several counts, some of which are bad, the conviction will not be reversed if there is one good count warranting the judgment, originated in cases where the findings of guilt were by the jury, and the sentence was by the judge. In such cases the pre- sumption is that the judge ignored the findings of the jury on the bad counts and sentenced only on those which- were sufficient to sustain the conviction. But where the findings of guilt are by the judge (as in contempt proceedings) there is no room for such a presumption, and hence, where it plainly appears from the record, in such cases, that a defendant has been sentenced upon a defective count, the decree should be reversed. ^"^ 1094-9. Excessive sentences. — Where it court. — Gompers v. Buck Stove, etc., Co., was objected in the court below that the 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492. original sentence exceeded the authority In the case cited, the trial judge made of the court, in that it required service at no general finding that the defendants hard labor, and, upon motion of the gov- were guilty, but in one decree he ad- ernment's counsel, that much of the judged that each defendant was respec- sentence was stricken out, and there was tively guilty of the nine independent acts no contention that hard labor had been, set out in separate paragraphs of the pe- or would be. imposed upon the appel- tition. Having found that each was lants, it was held that, at most, only that guilty of these separate acts, he consoli- part of the sentence in excess of the law dated the sentence without indicating would be void. United States v. how much of the punishment was im- Pridgeon, 153 U. S. 48, 38 L. Ed. 631, 14 posed for the disobedience in any par- S. Ct. 746: Harlan v. McGourin, 218 U. ticular instance. "We can not suppose." S. 442. 54 L. Ed. 1101, 31 S. Ct. 44. said the court, "that he found the de- 1094-lOa. Defective count — Findings by fendants guilty of an act charged unless 1093 1101-1116 SBT-OPF, RECOUPMENT, ETC. Vol. X. II. Punishment. E. Particular Punishments Considered — 3. Capital Punishment — b. Qualification of Sentence by Court or Jury. — Application to District of Columbia. — The provision for a verdict of guilty of murder "without capital punishment," contained in the federal criminal code of March 4, 1909 (35 Stat, at L. 1088, chap. 321, U. S. Comp. Stat. Supp. 1911, p. 1588), § 330, which Code in § 272, makes murder a crime against the United States when committed on "any lands reserved or acquired for the exclusive use of the United States, and under the exclusive jurisdiction thereof," has no application to the District of Columbia, which, in this respect, is governed by the district code, which contains no provision for such a qualified verdict. ^^^ SEPARABLE CONTROVERSY.— See ante. Removal op Causes, p. 1058. SEPARATE COACHES.— See ante. Civil Rights, p. 236. SEPARATE ESTATE OF MARRIED WOMEN.— See the title Separate Estate of Married Women, vol. 10, p. 1104, and references there given. SEPARATE SCHOOL.— See ante, Civil Rights, p. 236. SEPARATE TRIALS.— See the title Separate Trials, vol. 10, p. 1111, and references there given. SEQUESTRATION.— See the title Sequestration, vol. 10, p. 1112, and references there given. SERVICE OF PROCESS.— See post. Summons and Process. SESSION.— See ante, Clerks of Court, p. 241 ; Courts, p. 398. SET-OFF, RECOUPMENT AND COUNTERCLAIM. I. By and against Individual, 1094. A. Set-Off, 1094. 5. Subject of Set-Off at Law, 1094. a. In General, 1094. (1) Mutual Obligations in Same Right, 1094. (4) Bankruptcy Statutes, 1095. (5) Expenses Incurred by De Facto Officer, 1095. 6. Subjects of Set-Off in Equity, 1095. a. In General, 1095. II. By and against Government, 1095. B. Set-Off by Government, 1095. CROSS REFERENCES. See the title Set-Off, Recoupment and Counterclaim, vol. 10, p. 1114, and references there given. I. By and against Individual. A. Set-Off — 5. Subject of Set-Off at Law — a. In General — (1) Mutual Obligations in Same Right. — See note 10. he considered that it amounted to a vio- constitute a disobedience of the injunc- lation of the injunction. Nor can we tion." Gompers v. Buck Stove, etc., Co., suppose that, having found them guilty 221 U. S. 418, 55 L. Ed. 797, 31 S. Ct. 492. of these nine specific acts, he did not 1101-42a. Application to District of impose some punishment for each. In- Columbia. — Johnson z'. United States, 225 stead, therefore, of affirming the judg- U. S. 405, 56 L. Ed. 1142, 32 S. Ct. 748. ment if there is one good count, it should 1116-10. Mutual obligation in same be reversed if it should appear that the right — Liquidated sum for breach of con- defendants have been sentenced on any tract. — The amount necessaril}^ expended count which, in law or in fact, did not by the owner to complete a building con- 1094 Vol. X. SHELLEY'S CASE {RULE IN). 1117-1131 (4) Bankruptcy Statutes. — For a complete and exhaustive treatment of the right of set-off and counterclaim under the bankruptcy law, see ante, Bank- ruptcy, p. 168. (5) Expenses Incurred by De Facto Officer. — The actual cost of obtaining the fees and emoluments of an officer, which would have been entailed on any person who might have held the office, may be set off by an ousted de facto officer in an action by the de jure officer to recover the official earning.^''* 6. Subjects of Se^t-Off in Equity — a. In General. — See note 32. II. By and against Government. B. Set-Off by Government. — Set-Off against Indian Annuities. — See ante, Indians, p. 641. SETTLEMENT OF DECEDENTS' ESTATES.— See ante. Executors and Administrators, p. 564. SHARES OF STOCK.— See ante. Capital— Capital Stock, p. 214. SHELLEY'S CASE (RULE IN). CROSS REFERENCES. See the title Shelley's Case (Rule in), vol. 10, p. 1131, and references there given. Operation of Rule. — Where "the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance, an estate is limited, either mediately or immediately to his heirs in fee or in tail, * * * 'the heirs' are words of limitation of the estate, and not words of purchase. "^'^ Application of Rule. — There are certain conditions attached to the Rule in Shelley's Case which give precision to its application. One of these is that the remainder after the particular estate must be to heirs of the whole line of inheri- table blood, designating those who are to take from generation to generation. And they must be heirs of him who takes the particular estate, and by devolution from him.^'^ The rule does not apply where the particular estate is equitable, and tract under an adjustment by the archi- reliance upon certain notes sent for dis- tect, after there had been a strike and count and credit, after receiving no re- cessation of work on account of the sponse to its notification that such notes character and condition of the labor would not be discounted, but would be furnished by the contractor, should be held as collateral, and that credits should credited against the contract price, where either be transferred from other banks the contract provides that under such or currency shipped. Decree, Hanover circumstances the owner shall have full Nat. Bank of City of New York v. Sud- authority "to arbitrate or adjust the dath (1007), 153 F. 1022, 82 C. C. A. fi77, matter," and that the contractor shall affirmed. Hanover Nat. Bank v: Suddath. make good the loss, to be fixed by the 215 U. S. 122, 54 L. Ed. 120, 30 S. Ct. 63. architect or by arbitration. Lupton's 1131-la. Statement of rule in Shelley's Sons Co. z;. Automobile Club. 225 U. S. Case.— Vogt v. Graff. 222 U. S. 404, 56 L. 489, 56 L. Ed. 1177, 32 S. Ct. 711. Ed. 249, 32 S. Ct. 134. 1117-17a. Expenses incurred by de 1131-5a. Application of rule. — Vogt v. facto cfBcer.— Albright t-. Sandoval, 216 Graff. 222 U. S. 404, 56 L. Ed. 249, 32 S. U. S. 331, 54 L. Ed. 502, 30 S. Ct. 318. Ct. 134. See, also, ante, DE EACTO OFFICERS, "Hargrave, in his Law Tracts, states p. 460. the test to be 'whether the party entail- 1119-32. Subject of set-ofT in equity. — ing means to build a succession of heirs No right of equitable set-off in favor of on the estate of the tenant for life.' If a bank against the receiver of its in- he does not. but intends to describe a solvent correspondent arises out of the class taking from him, the rule does not voluntary payment by the former bank apply." Vogt r. Graff, 222 U. S. 404, 56 of an overdraft of its correspondent, in L. Ed. 249, 32 S. Ct. 134. 1095 1131 SHIPS AND SHIPPING. Vol. X. the estate in remainder legal. ^^ The testator must be deemed to have used the words of inheritance as mere descriptio personarum, and not in their full legal sense, thus defeating the application of the Rule in Shelley's Case, where, after giving outright to his other children their respective shares of his estate, he di- rected that the share of a specified son should be paid over to certain designated trustees, the income therefrom to be paid over to such son, "the principal to be paid to his heirs after his death. '"^"^ Rule of Property in District of Columbia. — See note 6a. SHERIFFS AND CONSTABLES.— See the title Sheriffs and Con- STabi.e;s, vol. 10, p. 1132, and references there given. SHERIFFS', CONSTABLES' AND MARSHALS' SALES.— See the title Sheriffs', Constables' and Marshals' Sales, vol. 10, p. 1134, and references there given. In addition, ante. Executions, p. 563 ; Judicial Sales, p. 812. SHERMAN ANTITRUST ACT.— See ante. Monopolies and Corporate Trusts, p. 874. SHIPS AND SHIPPING. in. Building, 1097. A. Contracts for Construction, 1097. V. Regulation and Inspection, 1097. B. Inspection, 1097. C. Equipment for Protection of Life and Property, 1097. VI. Title and Ownership, 1098. A. In General, 1098. IX. Carriage of Property and Passengers, 1098. C. Liability for Nondelivery, Loss or Injury, 1098. 1. Liability as Insurers, 1098. 3. Shipping Order and Condition of Goods, 1098. 10. Limitation of Liability by Exceptions in Contract, 1098. b. Express Exceptions in Bill of Lading or Contract of Ship- ment, 1098. (1) In General, 1098. (3) Perils of Sea, Navigation, Lakes, Rivers, etc., 1098. (a3^) Damage by Sea Water, 1098. (c) Explosions, 1098. (g) Negligence of Carrier and Servants, 1098. (h) Burden of Proof, 1098. D. Limitation of Carrier's Liability by Act of Congress, 1099. 1. Limited Liability Act, 1099. a. Object or Purpose, 1099. b. Constitutionality. 1100. c. Rule of Construction, 1100. d. Not Repealed by Subsequent Acts, 1100. e. Part of Maritime Law, 1100. f. Waters and Vessels to Which Applicable, 1100. h. Loss or Damage by Fire, 1100. 1131-5b. Vogt z'. Graff, 222 U. S. 404, 1131-6a. In the District of Columbia 56 L. Ed. 249, 32 S. Ct. 134. the rule in Shelley's Case is a rule of 1131-5C. Vogt V. Graff, 222 U. S. 404, property. Vogt v. Graff. 222 U. S. 404, 56 L. Ed. 249, 32 S. Ct. 134. 56 L. Ed. 249, 32 S. Ct. 134, affirming. 1096 Vol. X. SHIPS AND SHIPPING. 1159 i. Loss or Damage for Which Liability Limited to Value of Ship and Freight, 1100. (1) In General, 1100. (2) Priority or Knowledge of Owner, 1102. (3) What Constitutes Value of Ship and Freight, 1103. (b) What Freight Estimated, 1103. (c) Passage Aloney, 1103. (e) Ship Subsidy jMoney, 1104. (3>4) Freighters Entitled to Participate, 1104. (5) Personal Injuries and Death by Wrongful Act, 1104. (6) Transfer of Interest to Trustee or Payment into Court, 1104. (7) Loss of Ship, 1105. k. Proceedings to Limit Liability, 1105. (1) Nature of Proceedings, 1105. {1/4) Claims Provable in Proceedings to Limit, 1105. (2) Forms and Rules of Procedure, 1105. (3) Jurisdiction, Venue and Courts. 1105. (7) Necessity for Ascertaining Co-Existing Claims, 1105. (b) Contesting All Liability, 1105. (8) Effect of Proceedings, 1105. (a) Superseding Actions in Other Courts, 1105. aa. In General, 1105. bb. Duty of Other Courts to Suspend Proceed- ings, 1106. cc. Staying or Restraining Proceedings in Other Courts, 1107. 2. Harter Act, 1107. c. Exceptions Limiting Liability of Carrier, 1107. e^. Duty of Master of Stranded Vessel, 1108. f. Right to General Average Contribution, 1108. i. Personal Injuries and Loss of Life, 1108. CROSS REFERENCES. See the title Ships and Shipping, vol. 10, p. 1148, and references there given. In addition, see post. Working Contracts. As to situs for taxation, see ante. Constitutional Law, p. 264; Due^ Proc- ess 01* Law, p. 475; Interstate and Foreign Commerce, p. 689; post, Taxa- tion. III. Building. A. Contracts for Construction. — See post. Working Contracts. V. Regulation and Inspection. B. Inspection. — Foreign Steam Vessels. — The failure especiallv to enu- merate Rev. St. U. S., § 4405 ( U. S. Comp. St. 1901, p. 3017), giving the force of law to regulations of the board of supervising inspectors, in Act Aug. 7, 1882, c. 441, 22 Stat. 346 _(U. S. Comp. St. 1901, p. 3015), making applicable to foreign vessels the provisions of certain enumerated sections relating to the inspection of steam vessels, does not render such section inapplicable to foreign vessels.^2^ C. Equipment for Protection of Life and Property. — The sufficiency of the equipment of a vessel with lifeboats, life rafts, and boat disengaging 1159-32a. La Bourgosne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664, affirming 144 Fed. 781, 75 C. C. A. 647. 1007 1159-1183 SHIPS AND SHIPPING. Vol. X. apparatus is to be measured by the regulations adopted pursuant to U. S. Rev. Stat., § 4488, U. S. Comp. Stat. 1901, p. 3055, by the board of supervising inspectors, which regulations, under § 4405 (U. S. Comp. Stat. 1901, p. 3017), when approved by the secretary of the treasury, "have the force of law.''^"*^ VI. Title and Ownership. A. In General. — Under Contract for Construction. — See post, Work- ing Contracts. IX. Carriage of Property and Passengers. C. Liability for Nondelivery, Loss or Injury — 1. Liability as Insure;rs. — See note 33. 3. Shipping Order and Condition of Goods. — See post, "Burden of Proof," IX, C, 10, b, (3), (h). 10. Limitation of Liability by Exceptions in Contract — b. Express Ex- ceptions in Bill of Lading or Contract of Shipment — (1) In General. — See note 64. (3) Perils of Sea, Navigation, Lakes, Rivers, etc. — (a^) Damage by Sea Water. — Damage to cargo by sea water is not necessarily damage by a peril or danger of the seas.*'^'^ (c) Explosions. — See note 72. (g) Negligence of Carrier and Servants. — See post, "Harter Act," IX, D, 2. (h) Burden of Proof. — Where goods are received in good order on board of a vessel under a bill of lading agreeing to deliver them, at the termination of the voyage, in like good order and condition, and the goods are damaged on the voyage, in a proceeding to recover for the breach of the contract of affreightment, after the amount of damage has been established, the burden lies upon the carrier to show that it was occasioned by one of the perils for which he was not responsible.'^'^^ 1159-34a. Judgment, La Bourgogne 546, 29 S. Ct. 363, quoting Liverpool, etc., (1906) 144 F. 781, 75 C. C. A. 647, af- Steam Co. i: Phenix Ins. Co., 129 U. S. firmed. La Bourgogne, 210 U. S. 95, 52 397, 437, 32 L. Ed. 788, 9 S. Ct. 469. L. Ed. 973, 28 S. Ct. 664. 1181-68a. Perils of sea, etc.— The Fol- 1175-33. Liability on insurer.— "As said mina, 212 U. S. 354, 53 L. Ed. 546, 29 S. in Liverpool, etc., Steam Co. v. Phenix Ct. 363, following The G. R. Booth, 171 Ins. Co., 129 U. S. 397, 437, 32 L Ed. 788, U. S. 450, 43 L Ed. 234, 19 S. Ct. 9. 9 S. Ct. 469: 'By the settled law, in the 1182-72. Explosions.— "In the case of absence of some valid agreement to the The G. R. Booth, 171 U. S. 450, 43 L. Ed. contrary, the owner of a general ship, 234, 19 S. Ct. 9, * * * the facts were that carrying goods for hire, whether em- the explosion of a case of detonators, ployed in internal, in coasting, or in for- which were part of a cargo, burst open eign commerce, is a common carrier, the side of the ship below the water line, with the liability of an insurer against all and the sea water, rapidly flowing in losses, except only such two irresistible through the opening made by the ex- causes as the act of God and public ene- plosion, injured the plaintiff's sugar. It mies. * * * Propeller Niagara v. Cordes, was held that although the explosion and 21 How. 7, 23, 16 L. Ed. 41; The Lady the inflow of the water were concurrent Pike, 21 Wall. 1, 14, 22 L. Ed. 499.' " causes of the damage, yet 'the explosion. The Folmina, 212 U. S. 354, 53 L Ed. and not the sea water, was the proximate 546, 29 S. Ct. 363. cause of damage, and that this damage 1181-64. Special exceptions in contract. was not occasioned by the perils of the — "Special contracts between the carrier sea within the exceptions in the bill of and the customer, the terms of which are lading.'" The Folmina, 212 U. S. 354, just and reasonable, and not contrary to 53 L. Ed. 546, 29 S. Ct. 363. public policy, are upheld; such as those 1183-77a. The Folmina. 212 U. S. 354. exempting the carrier from responsibility 53 L. Ed. 546, 29 S. Ct. 363, following for losses happening from accident, or Clark v. Barnwell, 12 How. 272, 13 L. from dangers of navigation that no hu- Ed. 985. man skill or diligence can guard against." Damage by sea water. — A carrier must The Folmina, 212 U. S. 354, 53 L Ed. prove that damage to a cargo from water 1098 \'ol. X. SHIPS AND SHIPPING. 1183-1184 Loss from Shipping Order or Condition of Goods. — Where goods are delivered in a damaged condition plainly caused by breakage, rust, or decay, their condition brings them within an exception exempting from that character of loss, as the very fact of the nature of the injury shows the damage to be prima facie within the exception, and hence the burden is upon the shipper to establish that the goods are removed from its operation because of the negligence of the carrier.'"'' D. Limitation of Carrier's Liability by Act of Congress — 1. Limited Liability Act — a. Object or Purpose. — The object of the law was to encour- age shipbuilding and to induce capitalists to invest money in this branch of industry.^^^ was occasioned by the perils of the sea within an exception in the bill of lading against dangers and accidents of the seas. The Folmina, 212 U. S. 354, 53 L. Ed. 546, 29 S. Ct. 363. "As illustrated in the case of The G. R. Booth, 171 U. S. 450, 43 L. Ed. 234, 19 S. Ct. 9, proof merely of damage to cargo by sea water does not neces- sarily tend to establish that such dam- age was caused by a peril or danger of the seas." The Folmina, 212 U. S. 354, 53 L. Ed. 546, 29 S. Ct. 363. "The efficient cause of the damage must be sought in those conditions or events which caused or permitted the en- trance of sea water. It can not in rea- son be said that sea water was the eth- cient, the proximate cause of the cargo damage, because no other cause for that damage has been disclosed. As there must have been an efficient cause per- mitting the sea water to enter, so long as that cause remains undisclosed, it can not be said that the damage has been shown to have resulted from causes within the scope of a sea peril; * * * that it is the duty of the carrier to sus- tain the burden of proof by showing a connection between damage by the sea water and the exception against set perils. , For the distinction between the two, see Tilt;' Henry B. Hyde, 32 C. C. A. 534, 61 U. S. App. 147, 90 Fed. 114, 116; The Lennox, 90 Fed. 308, 309; The Patria, 68 C. C. A. 397, 132 Fed. 971, 972." The Folmina, 212 U. S. 354, 53 L Ed. 546, 29 S. Ct. 363. "The inability of the court below to determine the cause of the entrance of the sea wafer would imply that the evi- dence did not disclose in any manner how the sea water came into the ship. In other words, while there was a cer- tainty from the proof of a damage by the sea water, there was a failure of the proof to determine whether the presence of the sea water in the ship was occasioned by an accident of the sea, by negligence, or by any other cause. Manifestly, how- ever, the presence of the sea water must have resulted from some cause, and it would be mere conjecture to assume simply from the fact that damage was done by sea water that therefore it was occasioned by a peril of the sea. As the burden of showing that the damage arose from one of the excepted causes was upon the carrier, and the evidence, al- though establishing the damage, left its efficient cause wholly unascertained, it follows that the doubt as to the cause of the entrance of the sea water must be resolved against the carrier. The Edwin I. Morrison, 153 U. S. 199, 212, 38 L. Ed. 688, 14 S. Ct. 823." The Folmina, 212 U. S. 354, 53 L. Ed. 546, 29 S. Ct. 363. "And see further, the following cases, applying the principle just stated, and holding that because the damage to cargo was shown to have been oc- casioned by sea water, without any satis- factory proof as to the cause of its pres- ence, in view of the burden resting upon the carrier, conjecture would not be per- mitted to take the place of proof: The Sloga, 10 Ben. 315, Fed. Cas. No. 12,955. The Compta, 4 Sawy. 375, Fed. Cas. No. 3,069; Bearse v. Ropes, 1 Sprague, 331, Fed. Cas. No. 1,192; The Zone, 2 Sprague, 19, Fed. Cas. No. 19,220; The Svend, 1 Fed. 54; The Centennial, 7 Fed. 601; The Lydian Monarch, 23 Fed. 298; The Queen, 78 Fed. 155, 165, 168, affirmed in 36 C. C. A. 135, 94 Fed. 180, 196; The Phoenicia, 90 Fed. 116, 119, 40 C. C. A. 221, 99 Fed. 1005; Insurance Co. of N. A. v. Easton & M. Transp. Co., 97 Fed. 653; The Pres- que Isle, 140 Fed. 202, 205." The Fol- mina, 212 U. S. 354, 53 L. Ed. 546, 29 S. Ct. 363. 1183-.77b. The Folmina, 212 U. S. 354, 53 L. Ed. 546, 29 S. Ct. 363. 1184-83a. Effect or purpose and his- tory. — Richardson v. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27, following Butler V. Boston, etc.. Steamship Co., 130 U. S. 527, 32 L. Ed. 1017, 9 S. Ct. 612. "The law on the subject is now em- bodied in §§ 4282-4287, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 2943, 2944) * * *. These sections are a substantial re-enact- ment of the act of March 3, 1851, 9 Stat, at L. p. 635, chap. 43, U. S. Comp. Stat. 1901, p. 2943. The purpose of the act of 1851, in according to shipowners the right to limit their liability in whole or in part, and the meaning of that act, as well as 1099 1184-1186 SHIPS AND SHIPPING. Vol. X. b. Constitutionality. — See note 84. c. Rule of Construction. — See note 85. d. Not Repealed by Subsequent Acts. — See note 86. e. Part of Maritime Law. — Note 87. f. Waters and Vessels to Which Applicable.— Foreign Vessels.— See note 92. Equipment for Protection of Life and Property. — Oujere, whether ves- sels not fully equipped with the lifeboats, life rafts, and disengaging apparatus required by the laws of the United States should be accorded the limitation of liability.^sa h. Loss or Damage by Fire. — See post, ''In General," IX, D, 1, i, (1). i. Loss or Damage for Which Liability Limited to Value of Ship and Freight — (1) In General. — Under the original law of limited responsibility of ship- the purpose and meaning of the sections of the Revised Statutes embodying the provisions of the act of 1851, have been often before this court and have been conclusively adjudicated. Moore v. American Transp. Co., .24 How. 1, 16 L. Ed. 674; Norwich Co. v. Wright, 13 Wall. 104, 20 L. Ed. 585; The 'Benefactor,' 103 U. S. 239, 36 L. Ed. 351; The 'Scot- land,' 105 U. S. 24, 26 L. Ed. 1001; The 'North Star,' 106 U. S. 17, 27 L. Ed. 91, 1 S. Ct. 41; Providence, etc.. Steam- ship Co. V. Hill Mfg. Co., 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379; The City of Norwich, 118 U. S. 468, 30 L. Ed. 134, 6 S. Ct. 1150; Butler v. Boston, etc.. Steamship Co., 130 U. S. 527, 32 L. Ed. 1017, 9 S. Ct. 612." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 985, 28 S. Ct. 664. "In Moore v. American Transp. Co., 24 How. 1, 41, 16 L. Ed. 674, Mr. Justice Nelson, delivering the opinion of the court, thus stated the purpose of the limitation of liability which the act granted: 'The act was designed to promote the building of ships, and to en- courage persons engaged in the business of navigation, and to place that of this country upon a footing with England and on the continent of Europe.' " La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1184-84. Applying to a claim for a death on the high seas, due to a tortious collision of two vessels belonging to Delaware corporations, the provision of Delaware Act of January 26, 1186, as amended by the Act of March 9, 1901, authorizing personal representatives to maintain an action and recover damages for a death occasioned by unlawful vio- lence or negligence, does not render such provision repugnant to either the com- merce or admiralty clauses of the fed- eral constitution, where congress has not legislated upon the subject. The Hamil- ton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133. See post, "Personal Injuries and Death by Wrongful Act." IX. D. 1, i, (5). 1184-85. Rule of construction and manner of administration. — "The prac- tical value of the law will largely depend on the manner in which it is administered. If the courts having the execution of it administer it in a spirit of fairness, with the view of giving to shipowners the full benefit of the immunities intended to be secured by it, the encouragement it will afiford to commercial operations (as before stated) will be of the last import- ance; but, if it is administered with a tight and grudging hand, construing every clause most unfavorably against the shipowner, and allowing as little as possible to operate in his favor, the law will hardly be worth the trouble of its en- actment." La Bourgogne, 210 U. S. 95. 52 L. Ed. 973, 28 S. Ct. 664, following Providence, etc.. Steamship Co. v. Hill Mfg. Co., 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379. 1184-86. The 18th section of the Act of June 26, 1884 (23 Stat, at L. 53-57, ch. 121, U. S. Comp. Stat. 1901, 2804, 2945, oper- ates as an amendment of the existing law, and not as a repeal of the qualifications found in that law. "This is the view adopted by three circuit courts of appeal, in the cases of The Republic, 9 C. C. A. 386, 20 U. S. App. 561, 61 Fed. 109, in the the second circuit, the Annie Faxon, 31 C. C. A. 366, 44 U. S. App. 591, 75 Fed. 312, in the ninth circuit, and in Great Lakes Towing Co. v. Mill Transp. Co., 22 L. R. A. (N. S.) 769, 83 C. C. A. 607, 155 Fed. 11, in the sixth circuit, as well as by a number of district courts, among them being the case of The Amos D. Carver, 35 Fed. 665, and Re Meyer, 74 F'ed. 881." Richardson v. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. 1184-87. Richardson v. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27, follow- ing Butler V. Boston, etc.. Steamship Co., 130 U. S. 527, 32 L. Ed. 1017. 9 S. Ct. 612. 1186-92. Foreign vessels. — "It was settled in The 'Scotland,' 105 U. S. 24, 26 L. Ed. 1001, that a foreign ship is entitled to obtain in the courts of the United States the benefit of the law for the lim- itation of liability of shipowners." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1186-93a. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1100 Vol. X. SHIPS AND SHIPPING. 1187 owners the owners are not to be liable beyond their interest in the ship and freight for the acts of the master or crew, done without their privity or knowl- edge. It extended to liability for every kind of maritime tort, loss, damage and injury.2^ Sections 4283 and 4284, Rev. Stat., as amended by the 18th section of the act of June 26, 1884 (23 Stat, at L. 57, chap. 121, U. S. Comp. Stat. 1901, p. 2945), include "any or all debts and liabilities" of the owner, incurred on account of the ship, without his privity or fault. ^'' Nonmaritime Torts. — The limitation of a shipowner's liability for mari- time torts not the result of his own fault, provided by Rev. St., §§ 4283-4285 (U. S. Comp. St. 1901, pp. 2943, 2944), was extended to nonmaritime torts by the provisions of Act June 26, 1884, c. 121, § 18, 23 Stat. 57 (U. S. Comp. St. 1901, p. 2945), limiting the individual liability of a shipowner for "any or all debts and liabilities," except wages and liabilities incurred prior to such enactment, to his share in the vessel, and the aggregate liabilities of all the owners of a vessel on account of the same to the value of the vessel and freight pending. 2*^ Obligations Ex Contractu. — The Limited Liability xA.ct, as originally enacted, did not include the owner's individual liability for obligations ex contractu in- curred without his knowledge or privity. ^"^ Salvage Claim.— Under the Act of June 26, 1884 (23 Stat, at L. 57, ch. 1187-3a. "In Butler v. Boston, etc., Steamship Co., 130 U. S. 527, 553, 32 L. Ed. 1017, 9 S. Ct. 612, the words 'the lia- bility of the owner * * * shall in no case exceed,' etc.. were construed as extend- ing to any liability 'for any act, matter, or loss, damage or forfeiture, done or in- curred;' and as therefore providing that the 'owner shall not be liable beyond his interest in the ship and freight for the acts of the master or crew, done without his privity or knowledge.' " Richardson r. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. Collision.— La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. See the title CONFLICT OF LAWS, vol. 3, p. 1081. And see ante, CONFLICT OF LAWS, p. 250. 1187-3b. Richardson v. Harmon, 222 U. S. 96, 56 L Ed. 110. 32 S. Ct. 27; The San Pedro. 223 U. S. 365, 56 L. Ed. 473, 32 S. Ct. 275. "The learislation is in pari materia with the Act of 1851 (9 Stat, at L. 635. chap. 43, § 3), as carried into the Revised Stat- utes as § 4283, et seq. (U. S. Comp. Stat. 1901. p. 2943), and must be read in con- nection with that law; and so read, should be given such an effect not incongrvious with that law, so far as consistent with the terms of the later legislation. The former law embraced liabilities for mar- itime torts, but excluded both debts and liabilities for nonmaritime torts. The section under consideration includes debts, save wages of seamen and liabili- ties of an owner incurred prior to the passage of the law. The avowed purpose of the original act was to encourage American investments in ships. This was accomplished by confining the own- er's individual liability, when not the re- sult of his own fault, in the instances enumerated, to his share in the ship. The same public policy is declared to be the motive of the act of which this section is a part. True, a liability may arise out of a contract as well as from a tort. But a liability ex contractu is included ex vi termini, and the addition of the words 'and liabilities' would be tautology un- less meant to embrace liabilities not aris- ing from 'debts.' " Richardson v. Har- mon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. 1187-3C. Richardson v. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. "The case of Ex parte Phenix Ins. Co., 118 U. S. 610, 30 L Ed. 274, 7 S. Ct. 25. which was a petition for the benefits of the Limited Liability Act and to stay suits at common law against the owner for liability by fire carried to buildings on land, communicated from the ship, has been cited as holding that the limited lia- bility statute did not apply to such a claim, and that a court of admiralty could not draw to itself jurisdiction over any such claim. But that liability was incur- red on September 20, d880, a date ante- cedent to the Act of 1884, which act ex- pressly excluded liabilities which arose before its passage. That the decision by this court was not made until November. 1886, and that the opinion makes no ref- erence to the Act of 1884, is of no import- ance, since the act had no application." Richardson v. Harmon, 222 U. S. 96, 56 L Ed. 110, 32 S. Ct. 27. 1187-3d. Richardson v. Harm.on, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. See preceding paragraph. 1101 1187-1188 SHIPS AND SHIPPING. Vol. X. 121, U. S. Comp. Stat. 1901, p. 2945), a salvage claim is one to which the Limited Liability Act applies, even if such claim was not included within the meaning of § 4283, Rev. Stat.^*" (2) Priority or Knowledge of Onmer. — Mere negligence of itself does not necessarily establish the existence on the part of the owner of a vessel of "priv- ity or knowledge," within the meaning of Rev. St. U. S., § 4283 (U. S. Comp. St. 1901, p. 2943), according to shipowners a limited exemption from liability."** Regulations as to Speed. — The duty on the part of a steamship com- pany seeking limitation of liability for claims arising out of a collision in a fog, to have made regulations directing that its steamers be not run at an im- moderate rate of speed in a fog, in order to negative privity or knowledge of fault, was sufficiently discharged by promulgating regulations which, in terms, re- iterated the international rule, and called for compliance with its provisions.'*'' Presumptions and Burden of Proof. — The claimants in proceedings by a steamship company to limit its liability for claims arising out of a collision are charged with the burden of proving that the regulations promulgated by the steamship company for the conduct of its business, which exacted compliance by the captains of its vessels with the international rules, were not promulgated in good faith, or that a willful departure from their requirements was in- dulged in, and was brought home to, or was countenanced by, the company.*" Privity and knowledge of the habit of running its vessels at an immoderate speed in a fog can not be imputed to a steamship company so as to defeat its right to limit its liability for claims arising out of a collision in a fog, from the provisions of the contract for subsidy with the French government, which requires vessels, which are only obliged to develop, under forced draft, on 1187-3e. The San Pedro, 223 U. S. 365, 56 L. Ed. 473, 32 S. Ct. 275. 1188-4a. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664, affirming 144 Fed. 781, 75 C. C. A. 647, following Prov- idence, etc.. Steamship Co. v. Hill Mfg. Co., 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379. In determining the Providence, etc., Steamship Co. z'. Hill Mfg. Co., 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379, it became necessary to decide whether, if there was negligence of the owner of a vessel in case of fire, within the meaning of the Isf section of the Act of 1851, such negli- gence was the necessary equivalent of privity and knowledge of the owner, as expressed in the 3d section of the act. It was held that the two provisions were not necessarily coterminous, that negli- gence under the 1st section of the act might exist so as to prevent the unqviali- fied limitation given by that section, and yet the owner of the vessel be entitled to the more limited exemption given by the 3d section, which depended upon the ab- sence of privity or knowledge. In other words, it was decided that although a loss might have happened by the negli- gence of the owner of the vessel, such loss might yet not have been occasioned with the knowledge or privity of such owner. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. "Nothing to the contrary is properly to be deduced from the case of The Main v. Williams, 152 U. S. 122, 38 L. Ed. 381, 14 S. Ct. 486, * * * for that case did not purport in the slightest degree to overrule or qualify the previous deci- sions, and was concerned, not with the meaning of the words 'privity and knowl- edge,' but with the rule to be applied in determining what constituted pending freight within the meaning of the law for the limitation of liability." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. "It may be that there are general ex- pressions found in some cases in the lower federal courts, decided both be- fore and after the Hill Case, which lend color to the assumption that privity and knowledge, as defined in the statute, is but the equivalent of mere negligence. Such of the cases relied upon, however, as were decided before the authoritative interpretation of the statute in the Hill Case, were necessarily overruled by that decision, and so far as those decided since may be inconsistent with the previous rulings of the court, they are clearly not entitled to weight." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1188-4b. Judgment, La Bourgogne C1906'), 144 F. 781, 75 C. C. A. 647, af- firmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1188-4C. Judgment, La Bourgogne (1906). 144 F. 781, 75 C. C. A. 647, af- firmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. IIOS Vol. X. SHIPS AND SHIPPING. 1188 their trial, a maximum speed of l/^/i knots, to maintain a mean average annual speed of 15 knots, with a premium for exceeding that speed, and a penalty for a failure to maintain it.'*'^ Privity or knowledge by a steamship company of the fault of its servants in maintaining an excessive rate of speed in a fog is not to be presumed from a failure to comply, in proceedings to limit liability, with an order for the production of certain log books, where the claimant made no attempt to introduce secondary evidence, and did not ask a dismissal of the proceedings or such other action for the alleged contumacy as the case required."*^ (3) IVhat Constitutes Value of Ship and Freight — (b) IVhat Freight Bs- timated. — Where a vessel is lost on a voyage, and thereby contracts of trans- portation are unperformed, it may be that there will be no freight earned and none to be surrendered."* The freight and passage money which was received for the voyage under absolute agreement that the sums so paid were, in any event, to belong to the owner of the vessel which were tantamount to stipulations that, although such freight and passage moneys might be only partially earned, the right to the whole amount was contractually complete, must be surrendered as freight pending on the voyage under the rule that the duty to surrender pending freight to entitle to a limitation of liability must be liberally construed against the shipowner."^^ Passenger and freight receipts earned by a vessel on her sailing from Havre to New York need not be surrendered as freight then pending for the voyage, within the meaning of Rev. Stat, U. S., §§ 4283. 4284 (U. S. Comp. Stat. 1901, p. 2943), in proceedings for the limitation of liability for claims arising out of a collision occurring on the vessel's return trip from New York to Havre. Each of these trips was a separate voyage.''''^ (c) Passage Money. — See ante, "What Freight Estimated," IX, D, 1, i, (3), (b). 1188-4d. Judgment, La Bourgogne (1906\ 144 F. 781, 75 C. C. A. 647, affirmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1188-4e. Judgment, La Bourgogne (1906) 144 F. 781, 75 C. C. A. 647, affirmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1188-7a. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664, following Nor- wich Co. V. Wright, 13 Wall. 104, 20 L. Ed. 585. 1188-7b. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664, following The Main v. Williams, 152 U. S. 122, 38 L. Ed. 381, 14 S. Ct. 486, and O'Brien v. Miller, 168 U. S. 287, 303, 42 L- Ed. 469, 18 S. Ct. 140. Sums prepaid for freight and passage on the voyage, under an absolute agree- ment that such sums are, in any event, to belong to the owner of the vessel, must be surrendered as freight then pending on the voyage, within the meaning of Rev. St. U. S., §§ 4283, 4284 (U. S. Comp. St. 1901, p. 2943), in proceedings for the lim- itation- of liability for claims arising out of the sinking of the vessels as a result of a collision at sea. Judgment, La Bour- gogne (1906) 144 F. 781, 75 C. C. A. 647, affirmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1188-7C. La Bourgogne, 210 U. S. 95, 53 L. Ed. 973, 28 S. Ct. 664, affirming 144 Fed. 781, 75 C. C. A. 647. "As §§ 4283, 4284, Rev. Stat. (U. S. Comp. Stat. 1901, p. 2943), are in pari materia, the two must be considered to- gether, and therefore the freight then pending, referred to in § 4283, is freight then pending for "the same voyage,' or 'for the voyage,' as these words are used in § 4284." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. "Voyage" defined. — "In common par- lance, each of these trips was a separate voyage. Undoubtedly the word 'voyage' may have different meanings under differ- ent circumstances, depending on the sub- ject to which it relates or the context of the particular contract in which the word is employed. This is illustrated by the use of that word in the subsidy contract, where the word is used as signifying a sailing from Havre to New York and the return trip to Havre." The meaning of the word in §§ 4283, 4284, Rev. Stat., "must be ascertained by considering the context of the sections and the remedy which they were intended to afford; in other words, their obvious intent and pur- pose. The intimate relation between the provisions of the two sections, which were both in the Act of 1851, was pointed out in considering that act in Norwich Co. V. Wright, 13 Wall. 104, 20 L. Ed. 585." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 23 S. Ct. 664. 1103 1188 SHIPS AND SHIPPING. Vol. X. (e) Ship Snbsidv Money. — No part of the annual subsidy paid to a steam- ship company by the French government in consideration of the operation of a weekly steamship service between Havre and New York need be surrendered as freight pending for the voyage, within the meaning of Rev. St. U. S., §§ 4283, 4284 (U. S. Comp. St. 1901, p. 2943), in proceedings for the limitation of liability for claims arising out of the loss of one of the vessels of such steamship company in a collision on a voyage from New York to Havre. ^^ (3>^) Freighters Entitled to Participate. — "On the Same Voyage."^ The phrase "on the same voyage" is added to confine the participation in the apportionment to the freighters of a single voyage, and not to permit the ship- owner to bring into the compensation losses sustained on prior or other voy- ages.^*" (5) Personal Injuries and Death by Wrongful Act. — The Limited Liability Act applies to cases of personal injury and death by wrongful act as well as to those of loss of or injury to property.^^ (6) Transfer of Interest to Trustee or Payment into Court. — Failure to sur- render pending freight to the trustee does not necessitate a refusal to allow the limitation of liability for claims arising out of a collision at sea, where there is an honest controversy as to whether there was any pending freight to be surren- 1188-8a. Judgment, La Bourgogne (1906) 144 F. 781, 75 C. C. A. 647, affirmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1188-8b. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1188-9a. Richardson v. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27, following Butler V. Boston, etc.. Steamship Co., 130 U. S. 527, 32 L. Ed. 1017, 9 S. Ct. 612. "In The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133, it was also settled that where the law of a state to which a vessel belonged, in other words, the law of the domicil or flag, gives a right of ac- tion for wrongful death if such death oc- curred on the high seas on board of the vessel, * * * the right of action given by the law of the domicil or flag will be enforced in an admiralty court of the United States as a claim against the fund arising in a proceeding to limit liability." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. The liability created by Act Del. Jan. 26, 1886, as amended by Act March 9, 1901, in favor of personal representatives of a person whose death is caused by violence or negligence, will be enforced in a pro- ceeding in admiralty for the limitation of liability arising out of a tortious collision on the high seas of vessels belonging to Delaware corporations. Judgment, The Hamilton (1906), 146 F. 724, 77 C. C. A. 150, affirmed. The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133. Personal representatives of a passenger and of members of a crew who were drowned as the result of the collision of their vessel with another vessel on the high seas may recover in full in proceed- ings for the limitation of liability of such other vessel the liability created by Act Del. Jan. 26, 1886, as amended by Act March 9, 1901, in favor of the personal representatives of a person whose death is caused by violence or negligence. Judg- ment, The Hamilton (1906), 146 F. 724, 77 C. C. A. 150. affirmed. The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133. See ante, '"Constitutionality," IX, D, 1, b. "The main objection is that the statute allows a recovery beyond the mainte- nance and support which were declared in The Osceola. 189 U. S. 158, 175, 47 L. Ed. 760, 23 S. Ct. 483. to be the limit of a seaman's rights against his own vessel when injured by the negligence of the master or a fellow servant on his ship. But the question here regards the liabil- ity of the Hamilton, another vessel. The contract between the seaman and the owners of the Saginaw does not afifect the case. Erie R. Co. v. Erie, etc., Transp. Co., 204 U. S. 220, 226, 51 L. Ed. 450, 27 S. Ct. 246. Neither does the Harter Act, even if its terms could be extended to personal injuries and loss of life. The Chattahoo- chee, 173 U. S. 540, 43 L. Ed. 801, 19 S. Ct. 491. Neither does the negligence of the Saginaw. The Atlas, 93 U. S. 302, 23 L. Ed. 863." The Hamilton, 207 U. S. 398, 52 L. Ed. 264. 28 S. Ct. 133. The law of France, which authorizes a recovery for loss of life against a vessel in fault, will be enforced by the courts of the United States in a proceeding to limit liability for claims against a French ves- sel found to be at fault for a collision in a fog on the high seas, although the French courts, in applying to the facts found the international rule as to the ''peed of vessels in a fog. inight not have held such vessel to be at fault. La Bour- o-ogne, 210 U. S. 95. 52 L. Ed. 973, 28 S. Ct. 664. 1104 \'ol. X. SHIPS AXD SHIPPING. 1188-1192 derecl, and there is no question as to the insolvency of the owner-^*^^ (7) Loss of Ship. — See note 11. k. Proceedings to Limit Liability — (1) Nature of Proceedings. — See ante, "Rule of Construction," IX, D, 1, c. ( 1^) Claims Provable in Proceedings to Limit. — The statutes of the United States have enabled the owner to transfer its liability to a fund and to the exclusive jurisdiction of the admiralty, and it has done so. That fund is being distributed. In such circumstances all claims to which the admiralty does not deny existence must be recognized, whether admiralty liens or not. This is not only a general principle^*^** but is the result of the statute which provides for, as well as limits, the liability, and allows it to be proved against the fund.^*^*^ (2) Forms and Rules of Procedure. — Rules of Decision as to Speed Per- missible in Fog. — The international rule as to speed permissible in a fog, as interpreted by the courts of the United States, and not by the practice under that rule prevailing in the French courts, must be applied in a proceeding by the owner of a French vessel lost in a collision with a British ship on the high seas, to obtain, in the courts of the United States, the benefit of the law of the United States for the limitation of liability of shipowners. -'"' (3) Jurisdiction, J^enue and Courts. — State Courts. — See note 24. (7) Necessity for Ascertaining Co-Existing Claims — (b) Contesting All Liability. — A shipowner seeking the benefit of the Limited Liability Act is accorded the privilege not only of seeking the benefit of the act, but also of contesting his liability in any sum whatever. ^^^ (8) Effect of Proceedings — (a) Superseding Actions in Other Courts — aa. In General. — See note 34. 1188-lOa. Judgment, La Bourgogne (1906), 144 F. 781, 75 C. C. A. 647, af- firmed. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1189-11. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1189-16a. The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133, citing An- drews V. Wall, 3 How. 567, 572, 11 L. Ed. 729; The J. E. Rumbell, 148 U. S. 1, 15, 37 L. Ed. 345, 13 S. Ct. 498; admiralty rule 43; The Galam, 3 Moore P. C. C. N. S. 216, 236. 1189-16b. The Hamilton, 207 U. S. 398, 52 L. Ed. 264, 28 S. Ct. 133, citing The Albert Dumoi^, 177 U. S. 240. 260, 44 L. Ed. 751, 20 S. Ct. 595, and Workman v. New York, 179 U. S. 552, 563, 45 L. Ed. 314, 21 S. Ct. 212. 1190-20a. Judgment, La Bourgogne (1906) 144 F. 781, 75 C. C. A. 647, affirmed. L?. Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664. 1190-24. The value and efficiency of the law will also be greatly diminished, if not entirely destroyed, by allowing its admin- istration to be hampered and interfered with by various and conflicting jurisdic- tions. La Bourgogne, 210 U. S. 95, 52 L. Ed. 973, 28 S. Ct. 664, following Provi- dence, etc.. Steamship Co. t'. Hill Mfg. Co., 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379. 1192-33a. "Strictly speaking, the appli- cation for a limitation of liability is in ef- fect a concession that liability exists, but. because of the absence of privity or knowledge, the benefits of the statute should be awarded. It is true that, under the rules promulgated by this court, the petitioner is accorded the privilege not only of seeking the benefits of the stat- ute, but also of contesting its liability in any sum whatever. This does not, how- ever, change the essential nature of the proceeding. As the petitioner called the various claimants into a court of admi- ralty of the United States, to test whether, in virtue of the laws of the United States, it should be relieved, in part, at least, of Hability from the consequences of the acts of its agents, and as the international rules have the force of a statute, we think the issues presented were of such a char- acter as to render it essential that the right to exemption should be tested by the law as administered in the courts of the United States, and not otherwise." La Bourgogne, 210 U. S. 95, 52 L. Ed. 973. 28 S. Ct. 664. 1192-34. The case of Providence, etc.. Steamship Co. v. Hill Mfg. Co., 109 U. S. .->78, 27 L. Ed. 1038, 3 S. Ct. 379, was a suit in a state court against the owner of a steamship to recover for goods lost by the burning of a steamer. After a consideration of the meaning and purpose of the Limited Liability Act of 1851 (9 Stat, at L. 635, chap. 43, U. S. Comp. Stat. 1901, pp. 2943, 2944), §§ 4283, 4284. 4285. Rev. Stat., and of admiralty rule 54, the court said: "We have deemed it proper 12 U S Enc— 70 1105 1192 SHIPS AND SHIPPING. Vol. X. bb. Duty of Other Courts to Suspend Proceedings. — Proceedings under the act having been duly instituted the court acquired, full jurisdiction of the subject matter; and having taken such jurisdiction, and procured control of the vessel and freight (or their value), constituting the fund to be distributed, and issued its monition to all parties to appear and present their claims, it be- came the duty of all courts before which any of such claims were prosecuted, upon being properly certified of the proceedings, to suspend further action upon said claims.^^^ When the procedure provided by rule 54 has been followed to examine thus fully the foundation on which the rules adopted in December term, 1871, were based, because, if those rules are valid and binding (as we deem them to be), it is hardly possible to read them in connection with the Act of 1851 without perceiving that after proceedings have been commenced in the proper dis- trict court in pursuance thereof, the pros- ecution pari passu of distinct suits in dif- ferent courts, or even in the same court by separate claimants, against the ship- owners, is, and must necessarily be, ut- terly repugnant to such proceedings, and subversive of their object and purpose." The San Pedro, 223 U. S. 365, 56 L. Ed. 473, 32 S. Ct. 275. Nonmaritime torts. — "If thus the own- er's liability for a tort permitted or in- curred through the master or crew, although nonmaritime, because due to a collision between the ship and a structure upon land, be one in respect to which his liability is limited, and he applies for the benefit of such limitation to the proper district court of the United States, 'all proceedings,' by the express terms of § 4285, Rev. Stat., 'against the owner, shall cease.' The procedure in any such case is prescribed by the 54th and 55th rules in admiralty, where it is said that the court shall, 'on application of the said owner or owners, make an order to re- strain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims.' Providence, etc., Steamship Co. V. Hill Mfg. Co., 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379; Butler v. Boston, etc., Steamship Co., 130 U. S. 527, 549, 32 L. Ed. 1017, 9 S. Ct. 612." Richardson r. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. Liability not affected by proceeding. — "Inasmuch as the owner's liability was not limited by the statutes providing for a limited liabilit3\ the pendency of a peti- tion to obtain the benefits of the limita- tion did not operate to draw into such a proceeding action for a liability which could in no wise be affected by it. Ex parte Phenix Ins. Co., 118 U. S. 610, 30 L. Ed. 274, 7 S. Ct. 25. Such was the law, and so it still is, unless changed by the 18th section of the Act of June 26, 1884." Richardson v. Harmon, 222 U. S. 96, 56 L. Ed. 110, 32 S. Ct. 27. Libel by salvage claimants. — All fur- ther proceedings on a libel instituted by salvage claimants, who towed to port a vessel disabled in a collision, must stop' upon pleading the pendency in the same court of a separate proceeding by the owners of the vessel, claiming the bene- fits of the limited liability provisions of U. S. Rev. Stat., §§ 4283-4285, U. S. Comp. Stat. 1901, pp. 2943, 2944, as amended by the Act of June 26, 1884 (23 Stat, at L. 57, chap. 121, U. S. Comp. Stat. 1901, p. 2945), § 18, in which, conformably to ad- miralty rule 54, there has been an ap- praisement of the vessel and her pending freight, and a stipulation entered into for the payment of the appraised value into court, and a monition duly issued, requir- ing all persons to present their claims and make proof. The San Pedro, 223 U. S. 365, 56 L. Ed. 473, 32 S. Ct. 275. 1192-35a. The San Pedro, 223 U. S. 365, 56 L. Ed. 473, 32 S. Ct. 275, approving Providence, etc., Steamship Co. f. Hill Mfg. Co.. 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379. "The operation of the act, in this be- half, can not be regarded as confined to cases of actual 'transfer' (which is merely allowed as a sufficient compliance with the law), but must be regarded, when we consider its reason and equity and the whole scope of its provisions, as extend- ing to cases in which what is required and done is tantamount to such transfer; as where the value of the owner's inter- est is paid into court, or secured by stip- ulation and placed under its control, for the benefit of the parties interested." The San Pedro. 223 U. S. 365, 56 L. Ed. 473, 32 S. Ct. 275, quoting Providence, etc., Steamship Co. v. Hill Mfg. Co., 109 U. S. 578. 27 L. Ed. 1038, 3 S. Ct. 379. "The appellant, owner of the San Pedro, appears to have proceeded strictly in compliance with the fifty-fourth admi- ralty rule. There was a due appraisement of the San Pedro and her pending freight, and a stipulation entered into, with sure- ties, for the value so appraised, and a monition duly issued, requiring all per- sons to present their claims and make proof. In that situation, the jurisdiction of the court to hear and determine every claim in that proceeding became exclusive. It was then the duty of every other court, federal or state, to stop all further pro- 1106 Vol. X. SHIPS AXD SHIPPIXG. 1192-1194 and a monition has issued "against all persons claiming damages * * * citing them to appear before said court and make proof of their respective claims," etc., it is the duty of every other court, when the pendency of such a liability petition is pleaded, to stop. The very nature of the proceeding and the monition has the effect of a statutory injunction. Indeed, that is the ex- press declaration of the statute.^^'' cc. Staying or Restraining Proceedings in Other Courts. — The issuance of an injunction is not necessary to stop proceedings in separate or independent suits upon such claims. Power to grant an injunction exists under § 4285, Rev. Stat., when necessary to maintain the exclusiveness of the jurisdiction.^^^ The very nature of the proceeding and the monition has the effect of a statu- tory injunction. Indeed, that is the express declaration of the statutc^^** 2. Harter Act — c. Exceptions Limiting Liability of Carrier. — See note 53. ceedings in separate suits upon claims to which the Limited Liability Act applied." Ed. 365, 365, The San Pedro, 223 U. S. 365, 56 473, 32 S. Ct. 275. 1192-35b. The San Pedro, 223 U. 56 L. Ed. 473, 32 S. Ct. 275. 1192-36a. The San Pedro, 223 U. 56 L. Ed. 473, 32 S. Ct. 275. It was urged in Providence, etc., Steam- ship Co. V. Hill Mfg. Co., 109 U. S. 578, 27 L. Ed. 1038, 3 S. Ct. 379, that by virtue of § 720, Rev. Stat. (U. S. Comp. Stat. 1901, p. 581), the district court had no authority to issue an injunction. But as to this, the court said: "This view of the statutory injunction, and of its effect upon separate actions and proceedings, renders it unnecessary to determine the question as to the legality of the writ of injunction issued by the district court. Although we have little doubt of its legality, the question can only be properly raised on an application for an attachment for dis- obeying it. As the writ was issued prior to the adoption of the Revised Statutes, the power to issue it was not affected by any supposed change of the law intro- duced into the revision, by the 720th sec- tion of which the prohibition of the Act of 1793 (1 Stat, at L. 334, chap. 22, U. S. Comp. Stat. 1901, p. 581), in regard to in- junctions against proceedings in state courts, has this exception appended to it: 'Except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' Under the rule of expressio unius this express ex- ception may be urged as having the effect of excluding any other exception, though it is observable that the injunction clause in the Act of 1851 is preserved without change in § 4285, Rev. Stat., and will prob- ably be construed as having its original effect, due to its chronological relation to the Act of 1793." The San Pedro. 223 U. S. 365. 56 L. Ed. 473, 32 S. Ct. 275. 1192-36b. The San Pedro, 223 U. S. 365, 56 L. Ed. 473, 32 S. Ct. 275. 1194-53. "Prior to the Harter Act it was established that a common carrier by sea could not, by any agreement in the bill of lading, exempt hiniself fro:n respond- ing to the owner of cargo for damages arising from the negligence of the inaster or crew of the vessel. Liverpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438, 32 L. Ed. 788, 9 S. Ct. 469, follow- ing Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627. But of course the re- sponsibilities of the carrier were subject to modification by law, and with respect to vessels transporting merchandise from or between ports of the United States and foreign ports they were substantially modified by the Harter Act." The Jason, 225 U. S. 32, 56 L. Ed. 969, 32 S. Ct. 560. In The Irrawaddy, 171 U. S. 187, 43 L. Ed. 130, 18 S. Ct. 831, the opinion, after stating that, as the law stood before the passage of the act, the shipowner could not contract against his liability and that of his vessel for loss occasioned by neg- ligence or fault in ofificers and crew, and that in this particular, the owners of Amer- ican vessels were at a disadvantage as compared with the owners of foreign vessels, who might so contract, proceeded to say that "congress thought fit to re- move the disadvantage, not by declaring th-at it should be competent for the own- ers of vessels to exempt themselves from liability for the faults of the master and crew by stipulations to that effect con- tained in bills of lading, but by enacting that, if the owners exercised due diligence in making their ships seaworthy and in duly manning and equipping them, there should be no liability for the navigation and management of the ships, however faulty." The Jason, 225 U. S. 32, 56 L. Ed. 969, 32 S. Ct. 560. In reference to the preceding paragraph the court said: "This language is laid hold of as indicating that the decision proceeded upon the ground that congress thought it improper to permit owners of vessels to contract for exemption from liability. What it really means, as will be observed, is, that congress went further, and by its own enactment exempted them from liability, under given conditions, for 1107 1196 SLAVERY AND IXVOLUXTARY SERVITUDE. Vol. X. e^^. Duty of Master of Stranded Vessel. — The duty resting upon the mas- ter of a negHgently stranded vessel, irrespective of whether the negligence falls within the exemption from liability made by the Harter Act of February 13, 1893, § 3, or not, demands only the exercise of every reasonable effort to save the imperiled property, and does not extend so far as to call for a sacrifice of part of the owner's property, if necessary to save the cargo.'''*'' f. R'ight to General Average Contribution. — The exemption of a shipowner who has exercised due diligence to make the vessel seaworthy and properly manned, equipped, and supplied, from liability for the negligence of master and crew, which is declared in the Harter Act of February 13, 1893 (27 Stat. at L. 445, chap. 105, U. S. Comp. Stat. 1901, p. 2946), § 3, leaves such owner free to make a valid contract with the cargo owners under which contribution in general average may be enforced for sacrifices made subsequent to the negli- gent stranding of the vessel, in a successful eft'ort to save the vessel, freight, and cargo."'^'^ i. Personal Injuries and Loss of Life. — See ante, "Personal Injuries and Death by \\'rongful Act," IX, D, 1, i, (5). SHIP SUBSIDY MONEY.— See ante. Ships and Shipping, p. 1096. SHORE. — See ante, Boundariks, p. 206; Navigable Waters, p. 914. SIDEWALKS. — See post, Streets and Highways. SIGNALS.— See ante. Collision, p. 243. SILENCE. — See ante. Estoppel, p. 553; Fraud and Deceit, p. 597. SITUS. — See ante, Conflict of Laws, p. 250. Situs of property for taxa- tion, see post, Taxation. SLAVERY AND INVOLUNTARY SERVITUDE. IX. The Thirteenth Amendment, 1109. A. How Far Self-Executing, 1109. D. Prohibition Not Restricted to Enslavement of Negro Race, 1109. E. Character of Servitude Forbidden by the Thirteenth Amendment, 1109. 1. Generally, 1109. 3. Peonage, 1109. the consequences of faulty navigation." his servant's neg-ligence. it did not of its The Jason, 225 U. S. 33, 56 L. Ed. 969, 32 own force entitle him to share in a gen- S. Ct. 560. eral average rendered necessary by such The Irrawaddy, 171 U. S. 187, 43 L. Ed. negligence." The Jason, 225 U. S. 32, 56 130, 18 S. Ct. 831, there was no agreement L. Ed. 969, 32 S. Ct. 560. between shipowner and cargo owner re- "So far as the Harter Act has relieved specting general average, nor respecting the shipowner from responsibility for the the consequences of a stranding or other negligence of his master and crew, it is peril that might result from the negli- no longer against the policy of the law. gence of the master or crew of the vessel. ^or him to contract with the cargo own- The Jason, 225 U. S. 32, 56 L. Ed. 969, 32 ers for a participation in general average S. Ct. 560. contribution growing out of such negli- 1196-69a. The Jason, 225 U. S. 32, 56 L. Rence; and since the clause contained in Ed. 969, 32 S. Ct. 560. ^"^ bills of lading of the Jason s cargo 11QC ^A^" Tu T oof. TT c .,r. ^^ T adiiiits thc shipowucT to share in the gen- v} ar'I t lU^l^n' ^^ ^^ ^^ ^^' ^^ ^^ ^ral average only under circumstances Ed. 969, 32 S. Ct. 560. ^^^^^^^ ^^ ^^^ ^^^ ^^ j^ relieved from re- "The point of the decision in The Irra- sponsibility, the provision in question is waddy, 171 U. S. 187, 43 L. Ed. 130, 18 S. valid, and entitles him to contribution Ct. 831 (and as an authority the case goes under the circumstances stated." The no further), is, that while the Harter Act Jason, 225 U. S. 32, 56 L. Ed. 969, 32 S. Ct. relieved the shipowner from liability for 560. 1108 Vol. X. SOLICIT. 1212-1214 CROSS REFERENCES. See the title Slavery and Ixvoluxtarv Servitude, vol. 10, p. 1209, and references there given. In addition, see ante, Civil Rights, p. 236. IX. The Thirteenth Amendment. A. How Far Self-Executing. — See note 19. D. Prohibition Not Restricted to Enslavement of Negro Race. — See note 22. E. Character of Servitude Forbidden by the Thirteenth Amendment — 1. Gkxerallv. — See note 26. 3. Peoxage. — See note 29. Statute Making Refusal to Perform Labor Contract Prima Facie Evidence of Fraud. — So far as the refusal without just cause to perform the labor called for in a written contract of employment under which the em- ployee has obtained money which was not refunded, or property which was not paid for, is made prima facie evidence of an intent to defraud by Code Ala. 1896, § 4730, as amended by Gen. Acts Ala. 1903, p. 345, and Gen. Acts Ala. 1907, p. 636, and therefore punishable as a criminal offense, such legislation offends against the prohibition of the thirteenth amendment to the federal Constitution against involuntary servitude, except as punishment for crime, and against the provisions forbidding peonage, found in Rev. St. U. S., §§ 1990, 5526 (U. S. Comp. St. 1901, pp. 1266, 3715), enacted to secure the en- forcement of such amendment — especially since, under the local practice, the accused may not, for the purpose of rebutting the statutory presumption, tes- tify as to his uncommunicated motives, purposes, or intentions. ^^'^ SOLD.— See note 5a. SOLE RIGHTS.— See note 5b. SOLICIT.— See note 5c. 1212-19. How far self-executing. — Bailey t'. Alabama. 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. 1212-22. Prohibition not restricted to enslavement of negro race. — Bailey :•. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. 1213-26. Conspiracy to prevent making or carrying out contract. — United States c. Powell, 212 U. S. 5(34, 53 L. Ed. 653. See ante, CONSTITUTIONAL LAW, p. 264; DUE PROCESS OF LAW, p. 475. 1213-29. Peonage defined. — Bailey v. Alabama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145. 1213-31a. Refusal to perform labor con- tract — Evidence of fraud. — Bailey v. Ala- bama, 219 U. S. 219, 55 L. Ed. 191, 31 S. Ct. 145, reversing judgment (1909) 49 So. 886, 161 Ala. 75. 1214-5a. Sold implying a completed bargain. — See Stewart v. Griffith, 217 U. S. 323, 329, 54 L. Ed. 782, 30 S. Ct. 528. See post. VENDOR AND PURCHASER. 1214-5b. The sole right to vend a copy- righted book, secured by U. S. Rev. Stat., § 4952, U. S. Comp. Stat. 1901, p. 3406, to the owner of a copyright, does not in- clude the right to impose, by a notice printed on the same page with the notice of copj-right, a limitation as to the price at which the book shall be sold at retail by future purchasers with whom there is no privity of contract. Bobbs-Merrill Co. T'. Straus, 210 U. S. 339, 52 L. Ed. 108 i, 28 S. Ct. 722. See ante, COPYRIGHT, p. 377. 1214-5C. Soliciting for political pur- poses. — Solicitation by letter intended to be received and read by a postoffice em- ployee in the postoffice building, and which was so received and read in such building, is embraced bj' the provision of the Civil Service Act of January 16, 1883 (22 Stat, at L. 403, 407, chap. 27, U. S. Comp. Stat. 1901, pp. 1217, 1223), § 12, that no person shall, in any room or build- ing occupied in the discharge of official duties by any officer or employee of the United States mentioned in such act, so- licit, "in any manner whatever," or re- ceive, any contribution of money or any other thing of value for any political pur- pose whatever. It is possible to solicit by letter as well as in person. It is equall)- clear that the person v.lio writes the letter and intentionally puts it in the way of delivery solicits, whether the de- livery is accomplished by agents of the writer, by agents of the person addressed. 1109 1214 SPECIAL ASSESSMENTS. Vol. XL SOLICITING POLITICAL CONTRIBUTIONS.— See ante, Public Offi- cers, p. 1035. SOUNDING IN TORT.— See note 5d. SOVEREIGNTY. — See ante, International Law, p. 686. SPANISH GRANTS.— See ante, Public Lands, p. 1012. SPANISH LAW.— See ante, Foreign Laws, p. 595; Judicial Notice, p. 810; Prescription, p. 999. SPANISH OFFICIALS.— See ante. Public Lands, p. 1012; Prescription, p. 999. SPECIAL APPEARANCE.— See ante, Appeal and Error, p. 34; Appear- ances, p. 144. SPECIAL ASSESSMENTS. II. Power to Levy Assessments, 1110. A. Power of Legislature to Levy or Authorize Assessments, 1110. 3. Constitutional Restrictions on Power, 1110. a. As Afifected by Due Process of Law Clause, 1110. a^. As Afifected by the Equal Protection of the Laws Clause, 1111. V. Amount and Apportionment, 1111. A. Amount, 1111. B. Apportionment, 1111. 1. In General, 1111. VI. Assessment Proceedings, 1111. B. Notice or Opportunity to Be Heard, 1111. 1. Necessity, 1111. 6. Estoppel to Object to Failure to Give Notice, 1112. 7. Sufficiency of Hearing, 1112. D. Reassessment, 1112. VII. Enforcement and Collection, 1112. C. Action to Collect — Complaint, 1112. CROSS REFERENCES. See the title Special Assessments, vol. 11, p. 1, and references there given. In addition, see ante, Appeal and Error, p. 34 ; Drains and Sewers, p. 472 ; Res Ad judicata, p. 1065. II. Power to Levy Assessments. A. Power of Legislature to Levy or Authorize Assessments — 3. Con- stitutional Restrictions on Power — a. As Affected by Due Process of Law Clause. — The power of a state to compel a township, as one of its political sub- divisions, to levy and collect taxes for the purpose of paying the amount as- or by independent middlemen, if it takes tion on account of the unlawful and un- place in the intended way. The statute necessary destruction of property during prohibits solicitation by writing as well the war, under tlie order of the general as by spoken words. It forbids all per- commanding, is one sounding in tort sons to solicit "in any manner whatever." within the meaning of the Act of March The purpose is wider than that of a no- 3. 1887 (24 Stat, at L. 505, chap. 359, U. S. tice prohibiting book peddling in a build- Comp. Stat. 1901, p. 752), excluding ca.'^cs ing. United States v. Thayer, 209 U. S. of that character from the jurisdiction of 39, 52 L. Ed. 673, 28 S. Ct. 426. See ante, the court of claims. Juragua Iron Co. v. POSTAL LAWS. p. 996. United State.s 212 U. S. 297. 53 L. Ed. 1214-5d. Sounding in tort.— A claim 520. 29 S. Ct. 385. See ante, COURTS, against the Lhiited States for compensa- d. 398. 1110 Vol. XI. SPECIAL ASSESSMENTS. 5-9 sessed against such township for the pubhc benefits accruing from the construc- tion of a drain, was not taken away by the due process of law clause of the fourteenth amendment to the federal constitution. ^^^^ Due process of law is not denied to the owner of property lying directly back of property abutting on a street improvement by legislation creating a taxing district of the property along the line of the improvement and extending back therefrom 150 feet, and pro- viding that property 50 or more feet distant from the street and within 150 feet th.erefrom shall be liable if the abutting 50 feet which are primarily liable prove insufficient to pay the cost of the improvements. ^^'^ a^. As Affected by the Equal Protection of the Laws Clause. — The equal protection of the laws is not denied to the owner of property lying directly back of property abutting on a street improvement by legislation creating a taxing district of the property along the line of the improvement and extending back therefrom 150 feet, and providing that property 50 or more feet distant from the street, and within 150 feet therefrom, shall be liable if the abutting 50 feet, which are primarily liable, prove insufficient to pay the cost of the improve- ments. ^^'^ V. Amount and Apportionment. A. Amount. — Private property is not taken for public use without compen- sation under an act which provides that one-half the amount awarded as dam- ages in the street extension proceeding authorized by such act is to be assessed against the lands within a designated area as benefits, considering the benefits received by each lot within such area, where there is nothing to show that the actual assessments thereunder are in substantial excess of the benefits.-*^ The question of the excessiveness of a special assessment for benefits resulting from a public street improvement is one of fact. 2^'' B. Apportionment — 1. Ix General. — See note 29. VI. Assessment Proceedings. B. Notice or Opportunity to Be Heard — 1. Necessity. — Notice of the meetings of the common council on proceedings to confirm a special assessment for a public improvement is not essential, where notice was given of the meet- ings of the commissioners appointed to make such assessment. ^^'^ Tribunal before Which Hearing- Had. — See note 42. 5-13a. Power to compel township to provement districts, and charge the levy and collect assessments. — Soliah z'. wliole or part of the cost of a local im- Heskin, 222 U. S. 522, 56 L. Ed. 294, 32 S. provement upon the property in the dis- Ct. 103. trict, either according to vahiation, 5-13b. Due process of law not denied. superficial area, or frontage. Briscoe z'. — Cleveland, etc., R. Co. v. Porter, 210 Rudolph, 221 U. S. 547. 55^ L. Ed. 848, 31 U. S. 177, 52 L. Ed. 1012, 28 S. Ct. 647, S. Ct. 679. affirming 38 Ind. App. 226, 74 N. E. 260. It is within the power of congress to See ante, DUE PROCESS OF LAW, p. create a special improvement district, and charge the cost of an improvement ■± I .i. 5-13c. Legislation not denying the equal therein according to the benefits received protection of the laws. — Cleveland, etc., by property within such district. Bris- R. Co. V. Porter, 210 U. S. 177, 52 L. Ed. coe v. Rudolph, 221 U. S. 547, 55 L. Ed. 1012, 28 S. Ct. 647. See ante, COXSTITU- 848, 31 S. Ct. 079. TIONAL L.\W. p. 264. 9-38a. Notice of meetings of common 7-28a. Private property not taken for council to confirm assessment not essen- public use without compensation — Bris- tial. — English z\ Griffith, 214 U. S. 359, coe V. Rudolph, 221 U. S. 547, 55 L. Ed. 53 L. Ed. 1030, 29 S. Ct 658. 848, 31 S. Ct. 679, affirming 32 App. D. 9-42. Drainage assessments — Notice C. 167. and opportunity to be heard. — A state 7-28b. Question of excessiveness of as- statute authorizing an appointed drain- sessment one of fact. — Briscoe f. Ru- age board to determine whether a pro- dolph. 221 U. S. 547, 55 L. Ed. 848, 31 S. posed drain will be a pul:)lic benefit and 'Ct. 679. to create a drainage district consisting 7-29. A state may create special im- of land which it decides will be benefited 1111 9-11 SPECIAL ASSESSMENTS. Vol. XL A charter provision making conclusive the finding of a city council that a proper petition for a public improvement has been filed does not deny the due process of law guaranteed by the constitution of the United States,^^'' al- though such finding is made without notice.'*-*' But something more than an opportunity to submit in writing to the city council, sitting as a board of equalization, all objections to, and com- plaints of, an assessment for a public improvement, is essential to satisfy the due process of law guaranteed by the constitution, where the law denies the landowners the right to object in the courts to the assessment, upon the ground that the objections are cognizable only by the board of equalization.'* ^'^ 6. EsTOPPEiv TO Object to Failure: to Give Notice. — No objection to fail- ure to give notice of meetings of the common council on proceedings to confirm a special assessment is available to a property owner who, after appearing be- fore the commissioners appointed to make it, and protesting solely to save the right of review, interests himself in the sale of, and assists in disposing of, the bonds issued to pay for the improvement.^*"^ 7. Sufficiency of Hearing. — The hearing accorded to an owner of property lying directly back of property abutting on a street improvement is not insufifi- cient to aft'ord the due process of law, nor is it a denial of the equal protection of the laws, guaranteed by the constitution of the United States,^'"' as giving no opportunity to such owner to be heard as to the amount to be assessed against his property, where the amount of such assessment is the same as the assessment on the abutting property, and measures the contingent liability to which the back- lying property may be subjected if the abutting property, which is made pri- marily liable, fails to satisfy the assessment. ^*^'^ D. Reassessment. — See note SS. Where the statute under which a re- assessment is made makes it the duty of the court to hear objection to jurors "before accepting them," objections that the court did not examine the jurors as to whether they possessed the qualifications required by the statute, nor ad- minister to them the required oath, come too late when not made at the time the jurors were accepted and sworn. ^^^'^ A journal entry in a proceeding for the by such drain, and to make special as- property lying back of property abutting sessments accordingly, is not invalidated on improvement.— Cleveland, etc., R. Co. by the due process of law clause of the v. Porter, 210 U. S. 177, 52 L. Ed. 1012, fourteenth amendment to the federal con- 28 S. Ct. 647, affirming 38 Ind. 226, 74 N. stitution, if notice is given, and an op- E. 260. See ante, CONSTITUTIONAL portunity to be heard is afforded the land- LAW, p. 264; DUE PROCESS OF LAW, owner before the assessment becomes a p. 475. lien against his property. Soliah v. Hes- 11-55. Reassessment under act super- kin, 222 U. S. 522, 56 L. Ed. 294, 32 S. Ct. seding act under which original assess- 103, afifirming judgment (1908), Same v. ment was made. — A reassessment of Cormack, 117 N. W. 125, 17 N. D. 393. benefits under Act June 6, 1900, c. 809, 9-42a. Const. U. S. Amend. 14. 31 Stat. 668, § 12, upon lots benefited by 9-42b. Due process of law not denied. the extension of Eleventh street, in the — Londoner i\ County of Denver, 210 U. District of Columbia, is properly made, S. 373, 52 L. Ed. 1103, 28 S. Ct. 708, re- where the earlier act (March 3, 1899, c. versing 33 Colo. 104, 80 Pac. R. 117. See 431. 30 Stat. 1344), under which the ante, DUE PROCESS OF LAW, p. 475. original assessment of benefits was made, 9-42c. Guarantee of due process of law had been superseded by the new enact- not satisfied.— Londoner v. County of ment at the time of the court's refusal to Denver, 210 U. S. 373, 52 L. Ed. 1103, 28 confirm such assessment, which refusal S. Ct. 708, reversing 33 Colo. 104, 80 Pac. was assumed by the parties to amount to Rep. 117. ^'^ annulment of the award of benefits by ll-50a. Estoppel to object to failure to the first jury. Columbia Heights Realty give notice.— English v. Griffith, 214 U. S. Co. v. Rudolph, 217 U. S. 547, 54 L. Ed. 359, 53 L. Ed. 1030, 29 S. Ct. 658, affirm- 877, 30 S. Ct. 581, affirmmg judgment m ing 89 Pac. R. 501. Columbia Heights Realty Co. v. Mac- ll-50b. Const. U. S. Amend. 14. Farland (1908), 31 App. D. C. 112. ll-SOc. Hearing accorded owner of ll-56a. When objections to jurors must 1112 Vol. XL SPECIAL PRIVILEGES. 11-12 reassessment of benefits upon lots benefited by a street improvement, which re- cites that the oath was administered to the jurors in accordance with the pro- visions of that statute under which the proceeding was had, imports that the statutory oath was followed as far as applicable.-^''''' The power of the court to review an award made by a jury appointed to view the premises and hear the testimony in a proceeding for the reassessment of benefits resulting from the extension of a street, is limited to plain errors of law, misconduct, or grave error of fact, indicating plain partiality or corruption, in a case w'here the evidence was heard by the jury when the court was not present. ^"^^ A proceeding for the reas- sessment of benefits upon lots benefited by a street improvement taken under an act, superseding the act under which the original assessment was made, can not be regarded as a new action, for the purpose of applying the statute of limitations, but must be deemed a continuance of the old proceeding.^'^'^ Instructions in Reassessment Proceedings. — See note 57a. VII. Enforcement and Collection. C. Action to Collect — Complaint. — An allegation in the complaint in an action to collect a delinquent special assessment, that defendants' property was contiguous to the improvement, must be taken as true, where not denied by the answer. '^'"^ SPECIAL INTERROGATORIES.— See post. Verdict. SPECIAL MASTER.— See ante. Reference, p. 1054. SPECIAL PRIVILEGES.— See ante, Coxstitutioxae Law, p. 264. be made. — Columbia Heights Realty Co. extension of Eleventh street in the Dis- V. Rudolph, 217 U. S. 547, 54 L. Ed. 877, trict of Columbia. 30 S. Ct. 581, construing Act of June 6, ll-56d. Statute of limitations— Pro- 1900, c. 809, 31 Stat. 665, for reassess- ceeding for reassessment not a new ac- ment of benefits upon lots benefited by tion. — Columbia Heights Realty Co. v. the extension of Eleventh street in the Rudolph. 217 U. S. 547. 54 L. Ed. 877, 30 District of Columbia. S. Ct. 581. The refusal of the court, after the ac- 12-57a. An instruction in the proceed- ceptance and swearing of the jury, in a ing under Act June 6, 1900, c. 809, 31 Stat, proceeding under the above statute, to 665, for the reassessment of benefits permit counsel to examine the jurors as upon the lots benefited by the extension to their qualifications, is not reversible of Eleventh street, in the District of Co- error, although counsel was not present lumbia, is not open to the objection that at the time they were accepted and the jury was not limited to the benefits sworn, where, under the statute and the resulting immediatelj' from the opening warning order, the parties interested were of the street, but might consider all en- required to be present and "continue in hancement which might come from sub- attendance'' until the matter was ended. sequent improvement of or upon the Columbia Heights Realty Co. v. Rudolph, street, where the court eliminated any 217 U. S. 547, 54 L. Ed. 877. 30 S. Ct. 581. doubt as to its meaning by other parts of ll-56b. Recital in general entry as to its charge, in which the jury was told oath administered to jurors. — Columbia that the benefits must come immediately Heights Realt}- Co. v. Rudolph, 217 U. S. from the extension of the street, and not 547, 54 L. Ed. 877, 30 S. Ct. 5S1. from any subsequent improvement. Co- 11-56C. Power of court to review award lumbia Heights Realtj' Co. v. Rudolph, of jury.- Columbia Heights Realty Co. v. 217 U. S. 547, 54 L. Ed. 877, 30 S. Ct. 5S1. Rudolph, 217 U. S. 547, 54 L. Ed. 877, 30 12-60a. Allegation in complaint taken S. Ct. 581, construing Act of June 6, as true where not denied by answer. — 1900, ch. 809, 31 Stat. 665, for the reas- English v. Griffith, 214 U. S. 359, 53 L. sessment of benefits resulting from the Ed. 1030, 29 S. Ct. 658. 1113 19-23 SPECIFIC PERFORM AN CB. Vol. XI. SPECIFIC PERFORMANCE. III. statute of Frauds, 1114. A. Part Performance, 1114. VI. Particular Contracts and Transactions Considered, 1114. H. Real Property Contracts, 1114. 4. Vendor Not Informed as to Identity of Person for Whom Pur- chase Is Made, 1114. 5. Belief of Vendor That Contract Alerely Gave an Option, 1114. VIII. Pleading and Practice, 1114. A. Bill, 1114. 5. Variance between Allegation and Proof, 1114. CROSS REFERENCES. See the title Specific Pe;rformaxce, vol. 11, p. 14, and references there given. In addition, see post. Vendor and Purchaser. As to objections raised for the first time on appeal, see ante, Appeal and Error, p. 34. As to when a federal circuit court has original jurisdiction of the suit, see ante. Courts, p. 398. As to the jurisdiction of a state court to compel the assignment of a patent, see ante, Courts, p. 398. As to the right of an executor to maintain the action, see ante, Executors and xA.dministr.\- tors, p. 564. III. Statute of Frauds. A. Part Performance. — Specific performance of an oral contract for the sale of real property, partly performed, is properly refused to the vendee, where the contract is unreasonable, if not unconscionable, and the petition dis- closes on its face that the vendee has in his possession money belonging to the vendor which is more than adequate to cover any possible damages resulting from the vendor's refusal to convey.--*^ VI. Particular Contracts and Transactions Considered. H. Real Property Contracts — 4. Vendor Not Informed as to Identity OF Person for Whom Purchase Is Made. — Specific performance of a contract for the sale of real property will not be refused, in the absence of fraud, be- cause the vendor was not informed as to the identity of the person for whom the purchase was made, where he knew that the person named in the con- tract as the vendee was not the real purchaser, and sufifered no loss thereby.^^b 5. Belief of Vendor That Contract Merely Gave an Option. — The belief of the vendor when signing a contract for the sale of real property that it merely gave an option is no defense to a suit for specific performance.^-^'^ VIII. Pleading and Practice. A. Bill — 5. \"ariance between Allegation and Proof. — Contract and Deed Supporting Allegation in Bill. — An allegation in a suit for the specific performance of a contract for the sale of real property that the vendee sold 19-24a. Specific performance of oral identity of person for whom purchase is contract for sale of realty orooerlv re- made.— Lenman v. Jones, 222 U. S. 51, fused.— HafiFner v. Dohrinski, 215 U. S. 56 L. Ed. 89. 32 S. Ct. 18. 446, 54 L. Ed. 277, 30 S. Ct. 172, affirming 23-53c. Belief of vendor that contract 17 Okl. 438, 88 Pac. 1042. merely gave an option. — Lenman v. Tones, 23-53b. Vendor not informed as to 222 U. S. 51, 56 L. Ed. 89, 32 S. Ct. 18. 1114 Vol. XL STARE DECISIS. 24-30 all her rights under the contract to complainant is supported by a contract by which the vendee agreed to sell the land to complainant, and by a deed to him, purporting to be from both vendor and vendee, but signed only by the latter, reciting the transactions on which it is founded. ^^^ SPEED.— See ante, Collisiox. p. 243; Ships axd Shipping, p. 1096. SPENDTHRIFTS AND SPENDTHRIFT TRUSTS.— See the title Spend- thrifts AND Spendthrift Trusts, vol. 11, p. 26, and references there given. SPIRITS, WINES AND BEVERAGES.— See ante, Intoxicating Liquors, p. 803: Revenue Laws, p 1071. SPIRITUOUS LIQUORS.— See ante, Ixtoxicatixg Liquors, p. 803. SPONGES. — See ante, Coxstitutioxal Law, p. 264; Ixterstate and For- eigx Commerce, p. 689; post, L'nited States. STALE DEMAND.— See ante, Laches, p. 818. STAMP TAX.— See ante. Revenue Laws, p. 1071. STARE DECISIS. III. Decisions Applicable, 1115. C. Obiter Dicta, 1115. D^. Affirmance upon Equal Division of Opinion, 1115. IV. Decisions of Other Tribunals as Precedents, 1116. D. Federal Decisions in State Courts, 1115. F. Decisions of the Supreme Court of Hawaii in the Supreme Court of the L'nited States, 116. V. Overruling and Qualifying Decisions, 1116. CROSS REFERENCES. See the title Stare Decisis, vol. 11, p. 27, and references there given. In addition, see ante. Appeal and Error, p. 34. As to decisions sustaining legislation relating to the refunding of county bonds, see ante, ^Municipal, County, State and Federal Securities, p. 906. III. Decisions Applicable. C. Obiter Dicta. — See note 8. Where a case is dismissed for want of juris- diction, any opinion expressed upon an issue involved in the case is obiter.^* See note 12. D|. Affirmance upon Equal Division of Opinion. — An affirmance in the federal supreme court upon equal division of opinion is not an authority for the determination of other cases, either in that court or in the inferior federal courts. ^2^ 24-59a. Contract and deed supporting Co., 216 U. S. 420. 427. 54 L. Ed. 544, 30 allegation in bill. — Lenman v. Jones, 222 S. Ct. 242. U. S. 51, 5G L. Ed. 89, 32 S. Ct. 18, affirm- 30.12. Opinions that are not obiter ing 33 App. D. C. 7. dicta.— Union Pac. R. Co. v. ^Mason, etc., 29-8. An opinion upon an issue not r Co., 222 U. S. 237, 246, 56 L. Ed. 180, raised by the pleadings and concerning 33 3. Ct. 86; Ontario Land Co. z: Wil- which there is no proof is obiter. Roura fong-. 223 U. S. 543, 559, 56 L. Ed. 544, 32 z: Philippine Islands, 218 U. S. 386, 399, 5. Ct. 328. ^■^«t'^^^' 3I^^-^'-^^^ ^' ^^' ~^'' A • 30-13a. Affirmance upon equal division 29-9a^ Opinion expressed upon issue ^^ opinion.-Hertz r. Woodman, 218 U. involved in case dismissed for want of 3 ^^ .^ j^ g^ ^p^^ 3^ g. Ct. 621. jurisdiction. — Wright r. Georgia R., etc., 1115 31 STATE OFFICERS. Vol. XI. IV. Decisions of Other Tribunals as Precedents. D. Federal Decisions in State Courts. — A decision of the United States supreme court in a matter of federal jurisdiction must be regarded as of bind- ing authority on a state court of last resort. ^"^^ F. Decisions of the Supreme Court of Hawaii in the Supreme Court of the United States. — See note 20a. V. Overruling and Qualifying Decisions. Whether or not the rule of stare decisis shall be followed or departed from is a question entirely within the discretion of the court when called upon to consider a question once decided.--'^ STATE LANDS.— See ante, Public Lands, p. 1012. STATEMENT OF FACTS.— See ante, Appkal and Error, p. 34; Excep- tions, Bill of, and Statement oe Facts on Appeal, p. 559. STATE OFFICERS.— See ante, Public Officers, p. 1035. 31-16a. Decision of supreme court in a matter of federal jurisdiction. — United Land Ass'n v. Abrahams, 208 U. S. 61-1, 52 L. Ed. 645, 28 S. Ct. 569, affirming 139 Cal. 370, 69 Pac. 1064. 31-20a. The holding of the Hawaiian supreme court that a person seeking the registration and confirmation in the court of land registration of a title which de- pends upon an unexecuted decree is, as against the holder of the outstanding le- gal title, in the same position as a party- asking the aid of a court of chancery in executing a former decree, and takes the risk of opening up such decree for re- examination, will be followed by the federal supreme court. Lewers v. Atch- erly, 222 U. S. 285, 56 L. Ed. 202, 32 v^. Ct. 94. The federal supreme court will follow a decision of the Hawaiian supreme coiut that a judgment of the land commission of 1845, adjudging a parcel of land to a specified person in fee simple, can not be attacked except by a direct appeal to the supreme court provided by law. Lewers v. Atcherly, 222 U. S. 285, 56 L. Ed. 202, 32 S. Ct. 94. The federal supreme court will follovv the construction given by the supreme court of Hawaii to a statute first enacted on May 24, 1866, legitimating children born out of wedlock upon the marriage of their parents, as not applicable to the issue of an adulterous relation. Kealoha V. Castle, 210 U. S. 149, 52 L. Ed. 998, 28 S. Ct. 684. 31-22a. Whether rule of stare decisis shall be followed is discretionary with court. — Hertz v. Woodman, 21S U. S. 205, 54 L. Ed. 1001, 30 S. Ct. 02.1. A decree of the Hawaiian supreme court overruling a demurrer to the bill in a suit over the title to real property does not preclude that court from adopt- ing a contrary principle when the con- troversy again comes before it. Lewers V. Atcherly, 222 U. S. 285, 56 L. Ed. 202, 32 S. Ct. 94. 1116 \o\. XL STATES. STATES. I. Definitions and Distinctions, 1117. II. Sovereignty and Powers of States and Relation to Federal Gov- ernment, 1118. B. Power over Particular Subjects, 1118. C. Power over Places Purchased from States by Federal Government, 1118. III. Relations of States to One Another, 1118. IV. Relations between State and Its Counties and Municipal Corpo- rations, 1118. V. Admission of States, 1118. VI. Boundaries, 1118. X. Agreements or Compacts between States or between State and Foreign Power, 1118. C. Construction of Compacts, 1118. XI. Debts, 1119. XIV. Suits by and against States, 1119. B. Suits against States, 1119. 1. Liability to or Immunity from Suit, 1119. b. Under Federal Constitution, 1119. (1) General Rule, 1119. (3) Suits in Federal Courts, 1119. (b>4) Suits by Individuals, 1119. (4) Waiver of Immunitv, 1119. (a) In General, 1119. 2. What Constitutes a Suit against a State, 1120. b. Suits to Which State Not a Party on the Record, 1120. (1) In General, 1120. (3) Suits against State Officers, 1120. (a) Suits to Enforce State's Contracts, 1120. (e) Suits to Redress or Prevent Tortious Acts of Officers, 1120. cc. Suits in Injunction. ^Mandatory Decree or ^landamus, 1120. (aa) In General, 1120. (bb) Injunctions against Enforcement of Un- constitutional Enactment. 1120. c. Suits against County, 1121. d. Suits against Public Corporations, 1121. 4. Pnocedure. 1121. f. Pleading, 1121. CROSS REFERENCES. See the title States, vol. 11, p. 33. and references there given. In addition, see ante. Courts, p. 398; post, Taxatiox. I. Definitions and Distinctions. The definition of "a state" is found in the powers possessed by the original states which adopted the constitution — a definition emphasized by the terms 1117 35-41 STATES. Vol. XI. employed in all subsequent acts of congress admitting new states into the Union.2* 11. Sovereignty and Powers of States and Relation to Federal Govern- ment. B. Power over Particular Subjects. — Eminent Domain. — As to the right of a state to exercise the power of eminent domain, see ante, Eminent Domain, p. 537. Railroads. — As to state regulation of railroads, see ante, Railroads, p. 1046. C. Power over Places Purchased from States by Federal Govern- ment. — Under the constitution of the United States, congress is given the power "to exercise exclusive legislation in all cases whatsoever * * * over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."-*^ "The exclusive power of legislation necessarily includes the exclusive jurisdiction. "2° III. Relations of States to One Another. The state of Oregon can not, by virtue of its concurrent jurisdiction, under the Act of Congress of February 14, 1859 (11 Stat, at L. 383, chap. 33), over the Columbia River, make criminal the operation of a purse net in that river within the territorial limits of the state of Washington, under authority and license from that state. ^'^ IV. Relations between State and Its Counties and Municipal Corpora- tions. As to the relations between a state and the counties thereof, see ref- erences, ante, under Counties, p. 397. As to the relations between a state and the municipal corporations thereof, see ante. Municipal Corporations, p. 895. V. Admission of States. As to the admission of states into the Union, see ante, Constitutional Law, p. 264. VI. Boundaries. As to boundaries between states, see ante. Boundaries, p. 206. X. Agreements or Compacts between States or between State and Foreign Power. C. Construction of Compacts. — As to the construction of particular com- pacts, see note 12a. 35-2a. Definition.— Coyle v. Smith, 221 Western Union Tel. Co. v. Chiles, 214 U. U. S. 559, 55 L. Ed. 853, 31 S. Ct. 688. S. 274, 53 L. Ed. 994, 29 S. Ct. 613. 35-2b. Power of federal government 35-2d. Concurrent jurisdiction of Ore- over places purchased from states.— gon and Washington over Columbia Const. U. S., art. 1, § 8, par. 17. river.- Nielsen v. Oregon, 212 U. S. 315, 35-2C. Western Union Tel. Co. v. 53 L. Ed. 528, 29 S. Ct. 383. Chiles, 214 U. S. 274, 53 L- Ed. 994, 29 S. 41-12a. A contract between the states Ct. 613. of Virginia and West Virginia, under The exclusive legislative power which which the latter assumed the payment of congress possesses over the Norfolk her just and equitable share of the debt navy yard excludes the giving of any of the original state of Virginia at the operation or effect, within the limits of time of the creation of West Virginia as such navy yard, to the provisions of Va. a state, whoever might be the persons Code, 1904, pp. 096, 697, imposing a pen- to whom ultimately the payment was to alty upon telegraph companies for failure be made, was established by the pro- to deliver a message to the addressee. visions of Const. W. Va. 1861, art. 8, 1118 Vol. XL STATUS. 41-43 XI. Debts. Apportionment of Debts upon Division of State. — See note 13. XIV. Suits by and against States. B. Suits against States — 1. Liability to or Immunity from Suit — b. Under Federal Constitution — (1) General Rule. — With the exception named in the constitution of the United States, every state has absolute immunity from suit. Without its consent it can not be sued in any court, by any per- son, for any cause of action whatsoever. ^■^'^ (3) Suits in Federal Courts — (b^) Suits by Individuals. — A bill in equity to compel the specific performance of a contract between individuals and a state can not, against the objection of the state, be maintained in a court of the United States.^^a (4) Waiver of Immunity — (a) In General. — It is elementary that, even § 8, for the assumption of an equitable proportion of the Virginia public debt existing prior to January 1, 1861, and of Act Va. May 13, 1862 (Acts 1862-63, c. 1), consenting to the formation of the new state on those terms, and of the sanctioning Act of congress ,of Decem- ber 31, 1862 (chapter 6, 12 Stat. 633), and the contract so established was not modi- fied or affected in any practical way by the preliminary suggestions as to the special mode of ascertaining a just pro- portion of the debt, contained in the Wheeling ordinance of August 20, 1861, for the formation of the new state, which is not mentioned in any of the other en- actments. Virginia v. West Virginia, 220 U. S. 1, 55 L. Ed. 353, 31 S. Ct. 330. Legislation not violating compact of 1789 between Virginia and Kentucky. — Requiring upon notice and hearing the listing of land titles for taxation for cer- tain specified years, or, in default thereof, forfeiting such title to the state, as is done by Act Ky. March 15. 1906, c. 22, art. 3, does not, as to titles under grants from the state of Virginia, violate the provisions of the compact of 1789, be- tween the states of Virginia and Ken- tucky (Ky. St. p. 43), for the security of private rights existing at the time of the separation of the states, to be determined by the then existing laws of Virginia. Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Kd. 137. 31 S. Ct. 171, af- firming judgments (1907), 106 S. W. 260, 127 Ky. 667 and (1908), 108 S. W. 931. 128 Ky. 610, 111 S. W. 362, 33 Ky. Law Rep. 857. 41-13. Virginia — West Virginia case. — The public debt of the original state of Virginia, an equitable proportion of which was assumed by West Virginia at the time of its creation as a state, need not, because incurred for local improve- ments, be divided according to the terri- tory in which the money was expended, since in form the debt was an investment which generally took the shape of a sub- scription for stock in a corporation, mak- ing it an adventure on behalf of the whole state; all the expenditures having the ultimate good of the whole state in view. Virginia v. West Virginia, 220 U. S. 1, 55 L. Ed. 353, 31 S. Ct. 330. The valuation of the real and personal property of the two states of Virginia and West Virginia on the date of their separation, excluding slaves, is the proper basis for determining the equitable pro- portion of the public debt of the original state of Virginia which was assumed by the state of West Virginia at the time of its creation as a state, subject to the qualification that the difference between Virginia's share on this ratio and the amount which her creditors were content to accept from her should be deducted from the sum to be apportioned. Vir- ginia V. West Virginia, 220 U. S. 1, 55 L. Ed. 353, 31 S. Ct. 330. The liability of the state of West Vir- ginia, assumed at the time of its creation as a state, for an equitable proportion of the public debt of the original state of Virginia, was not discharged by changes in the form of the debt, nor split up by the unilateral attempts of Virginia to ap- portion specific parts to the two states. Virginia v. West Virginia, 220 U. S. 1, 55 L. Ed. 353, 31 S. Ct. 330. 43-24a. Immunity from suit. — Hopkins V. Clemson Agricultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. See, also, ante, COURTS, p. 398. The provision of the federal constitu- tion, that no suit shall be brought against any state by citizens of another state ap- plies to a suit brought against a state by its own citizens as well as to one brought bv a citizen of another state. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. 43-25a. Bill to compel specific perform- ance of a contract. — Murrav v. Wilson Distilline- Co.. 213 U. S. 151, 53 L. Ed. 742. 29 S. Ct. 458. See ante, COURTS, p. 398. 1119 46-53 STATUS. Vol. XL if a state has consented to be sued in its own courts by one of its creditors, a right would not exist in such creditor to sue the state in a court of the United States."^^ 2. What Constitutes a Suit against a State — b. Suits to Which State Not a Party on the Record — (1) In General. — See note 39. Immunity from suit is a high attribute of sovereignty — a prerogative of the state itself — which can not be availed of by public agents when sued for their own torts.'*'^* (3) Suits against State Officers — (a) Suits to Enforce State's Contracts. — See note 42. (e) Suits to Redress or Prevent Tortious Acts of Officers — cc. Suits in Injunction, Mandatory Decree or Mandamus — (aa) In General. — See note 49. (bb) Injunctions against Enforcement of Unconstitutional Enactment. — See note 51. Individuals who, as officers of the state, are clothed with some duty 46-35a. Consent of state to be sued in its own courts. — Murray v. Wilson Dis- tilling Co., 213 U. S. 151, 53 L. Ed. 742, 29 S. Ct. 458. 47-39. When immunity applies though proceeding is nominally against an of- ficer. — "Looking through form to sub- stance, the eleventh amendment has been held to apply, not only where the state is actually named as a party defendant on the record, but where the proceeding, though nominally against an officer, is really against the state, or is one to which it is an indispensable party. No suit, therefore, can be maintained against a public officer, which seeks to compel him to exercise the state's power of taxa- tion, or to pay out its money in his pos- session on the state's obligation, or to execute a contract, or to do any affirma- tive act which affects the state's political or property rights." Hopkins v. Clemson Agricultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. 47-40a. Immunity does not extend to public agents sued for their own torts. — Hopkins v. Clemson Agricultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. The eleventh amendment of the con- stitution was not intended to afiford such agents "freedom from liability in any case where, under color of their office, they have injured one of the state's citi- zens. To grant them such immunity would be to create a privilege class, free from liability for wrongs inflicted or in- juries threatened. Public agents must be liable to the law, unless they are to be put above the law. For how 'can these principles of individual liberty and right be maintained if, when violated, the ju- dicial tribunals are forbidden to visit penalties upon individual offenders * * * whenever they interpose the shield of the state? * * * The whole frame and scheme of the political institutions of this coun- try, state and federal protest" against ex- tending to any agent the sovereign's ex- emption from legal process. Virginia Coupon Cases. 114 U. S. 269, 291, 29 L. Ed. 185, 5 S. Ct. 903, 923, 925." Hopkins V. Clemson Agricultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654. 48-42. The existing relation of debtor and creditor between the state of South Carolina and the vendors of liquor under the state dispensary acts was not so al- tered by the Winding-Up Act of Feb- ruary 16, 1907, providing for the appoint- ment of a commission to close out the state dispensary business and turn over to the state treasury the surplus funds remaining after liquidating and paying claims out of the state assets, as to en- able a federal circuit court to take juris- diction of a bill filed by such vendors, which seeks to enjoin the commission from disposing of the fund until their claims are paid, and asks for the appoint- ment of a receiver, on the theory that, by such statute, the assets of the dispen- sary were placed in the hands of the com- mission as a trust fund for the benefit of all creditors having valid claims against such fund, which they are entitled to en- force by judicial action against the com- mission, without the presence of the state as a necessary party. Murray v. Wilson Distilling Co., 213 U. S. 151, 53 L. Ed. 742, 29 S. Ct. 458. 52-49. A suit against the dairy and food commissioner of a state to restrain cer- tain action taken under cover of his of- fice, but alleged to be in violation of the state laws, which injuriously afifects the reputation and sale of certain products manufactured by complainants, is not a suit against the state, forbidden by the eleventh amendment to the federal con- stitution. Scully V. Bird, 209 U. S. 481, 52 L. Ed. 899, 28 S. Ct. 597. 53-51. Injunctions against enforcement of unconstitutional enactments. — The im- munity of a state from suit, under Const. U. S. amend. 11, is not violated by main- taining a suit in a federal court to enjoin the threatened proclamation by the secre- tary of state, in his official capacity, un- der the authority of a state statute which violates the federal constitution, that a foreign telegraph company is forbidden, under the penalty prescribed by such law, 1120 Vol. XI. STATES. 53-55 in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the federal constitution, may be enjoined by a federal court of equity from such action.^^^ c. Suits against County. — A county is not exempt from suit under the elev- enth amendment of the federal constitution. -^^^ d. Suits against Public Corporations. — Public corporations are not clothed with that immunity from suit which belongs to the state alone by virtue of its sovereigntv.^'*'' 4. Procedure — f. Pleading. — A federal circuit court should not dismiss on to continue to do local business in the state. Decree, Chicago, R. I. & P. Rj-. Co. r. Ludwig (C. C. 1907), 156 F. 152. affirmed. Ludwig z: Western Union Tel. Co., 216 U. S. 146, 54 L. Ed. 423, 30 S. Ct. 280. A bill filed in a federal court against a state commission to restrain its members from enforcing railway passenger rates established by such commission, on the ground that such rates are confiscatory, is not bad as an attempt to enjoin legis- lation or as a suit against the state. Prentis z\ Atlantic Coast Line Co., 211 U. S. 210, 53 L. Ed. 150, 29 S. Ct. 67. 53-51a. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441; Western Union Tel. Co. v. Andrews, 216 U. S. 165, 54 L. Ed. 430. 30 S. Ct. 286, reversing 154 Fed. 95. See ante, IN7UNCTIOXS. p. 657. Suits to enjoin prosecuting attorneys from bringing actions, under the au- thority, of a state statute which violates the federal constitution, to recover the penalties fixed by that statute for viola- tions of its provisions, are not suits against a state, within the meaning of Const. U. S. amend. 11, securing to the states inimunity froin suit. Decree (C. C. 1907). 154 F. 95, reversed. Western Union Tel. Co. z: Andrews. 216 U. S. 165, 54 L. Ed. 430, 30 S. Ct. 286. A federal court may enjoin the at- tornev general of a state, whose general duty is to enforce the state statutes, from proceeding to enforce, against persons affected, a state statute which violates the federal constitution. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714. 28 S. Ct. 441. That the attorney general of a state must, to enforce a state statute, resort to inandamus, in which proceeding he or- dinarilv represents the state in its govern- mental capacity, does not prevent a fed- eral court from enjoining him from so doing, where the statute violates the federal constitution, since, in such case, his act in attempting, in the name of ihe state, to enforce a void enactment, is merely illegal, because in conflict with the superior authority of the federal con- stitution, and he is stripped of his oi^cial character, and the prohibition against his proceeding does not. therefore, afifect the state in i^s governmental capacity. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. The immunity of a state from suit is not violated by entertaining a suit in a federal circuit court, brought by a for- eigif railway company to restrain a prosecuting attorney from enforcing a state statute requiring the stoppage of interstate passenger trains at junction points, and to restrain the secretary of state from proceedmg under the' authority of another state statute to revoke the company's license and right to do local business because of bringing suit in a federal court. Herndon v. Chicago, etc.. R. Co., 218 U. S. 135, 54 L. Ed. 970, 30 S. Ct. 633; Roach z'. Atchison, etc., R. Co, 218 U. S. 159, 54 L. Ed. 978, 30 S. Ct. 639, affirming decree in Chicago, R. I. & P. Ry. Co. z: Swanger (C. C. 1908), 157 F. 783. 55-54a. County not exempt from suit. — Hopkins v. Clemson .Agricultural Col- lege. 221 U. S. 036. 55 L. Ed. 890, 31 S. Ct. 654, reversing 77 S. C. 12, 57 S. E. 551. 55-54b. Immunity does not extend to public corporations.— Hopkins r. Clem- son Agricultural College. 221 U. S. 836 55 L. Ed. 890. 31 S. Ct. 654. A public corporation such as an agri- cultural college receiving state aid and invested with municipal powers can not avail itself of the state's constitutional imrnunity from suit in a proceeding against it for constructing, under state authority, but for its own corporate pur- poses and advantages, a dyke upon land ov.-ned by the state, but in the use, pos- session, and enjoyment of the college, so as to damage or take private property without due process of law. Hopkins z'. Clemson Agricultural College, 221 U. S. 636, 55 L. Ed. 890, 31 S. Ct. 654, reversing judgment, 57 S. E. 551, 77 S. C. 12. The possibility that the judgment can not be enforced by levy and sale under execution affords no reason why a court should decline jurisdiction of a suit against a state college for taking private property for its corporate purposes with- out due process of law. Hopkins z: Clemson .\ofricultural College, 221 U. S. 636. 55 L. Ed. sec, 31 S. Ct. 654. 12 U S Enc— 71 1121 55-61 STATUTES. \o\. XL its own motion, for want of jurisdiction, a suit against the dairy and food commissioner of a state, on the ground that such suit is one against the state, but such question should be raised by demurrer or otlier pleading.-'''''' STATE TAXATION.— See ante. Constitutional Law, p. 264; iNTURSTATit AND Foreign CommKrce, p. 689; post. Taxation. STATUARY.— See note a. STATUTE OF ELIZABETH.— See ante. Fraudulent and Voluntary Conveyances, p. 600. STATUTE OF FRAUDS.— See ante. Frauds, Statute of, p. 600; Specific Performance, p. 1114. STATUTE OF LIMITATIONS.— See ante. Limitation of Actions and Adverse Possession, p. 828. STATUTE OF USES.— See post, Trusts and Trustees. STATUTES. IV. Enactment, 1124. C. The Legislature, 1124. 3. Powers, 1124. b. Restricted by Prior Legislature, 1124. D. The Bill, 1124. 2. Introduction, 1124. K. Legislative Journal, 1124. 3. Journal as Evidence, 1124. a. In General. 1124. L. Enrolled Bill, 1124. 2. As Evidence, 1124. M. At Special Session. 1124. N. By Territory, 1125. VIII. Form, 1125. B. Title and Subject, 1125. 1. Constitutional Provisions, 1125. a. In General, 1125. d. Compliance with, 1125. IX. Validity, 1125. B. Where Constitution Molated, 1125. D. Where Act Uncertain or Repugnant, 1125. G. Of Special and Local Acts, 1125. 2. Under Ignited States Constitution, 1125. 55-56a. Necessity of pleading. — Scully and under the authority contained in, § V. Bird, 209 U. S. 481, 52 L. Ed. 899, 28 S. 3 of that act, to make reciprocal agree- Ct. 597. ments with reference, among other arti- 61-a. Use of term statuary in revenue cles, to "paintings in oil or water colors, laws. — A bronze bust cast t)y artisans pastels, pen-and-ink drawings, and statu- from the artist's model is dutiable, upon ary," since the Tariff Act defines statuary importation from France, at 45 per cent as including only such as is cut, carved, ad valorem, under the Tariff Act of 1897, or otherwise wrought by hand from a p. 19.3, which covers articles or wares not solid block of marble, stone, or alabaster specially provided for in the act, com- or from metal, and such as is the profes- posed wholly or in part of metal, and sional production of a statuary or sculptor, whether partly or wholly manufactured, Altman & Co. v. United States, 224 U. S. and is not classifiable as statuary, under 583, 56 L. Ed. 894, 32 S. Ct. 593. See the commercial reciprocal agreement v/ith ante, REVENUE LAWS, p. 1071. France, negotiated in accordance with, 1122 Vol. XI. STATUTES. 4. Under Act of Congress in Regard to Territories. 1125. 5. What Acts Are Special and Local, 1126. N. Extent of Invalidity, 1126. 2. Total Invalidity, 1126. 3. Partial Invalidity. 1126. X. Amendment, 1127. E. Effect of Amendment, 1127. XL Repeal, 1127. C. Power to Repeal, 1127. E. Express Repeal, 1127. 2. Of Inconsistent Acts, 1127. F. Implied Repeal, 1127. 1. In General, 1127. ny2. Of Code or Revised Statute, 1128. L. Effect of Repeal, 1128. 1. Upon Repealed Act. 1128. a. In General, 1128. 6. Upon Pending Suits, 1128. XVI. Construction, 1129. B. Distinguished from Interpretation, 1129. G. Alanner of Construction, 1129. 2. According to Intention, 1129. a. In General, 1129. 5. Construed by Implication, 1129. a. In General, 1129. I. General Rules of Construction, 1129. 2. Construed to Effectuate Legislative Intent, 1129. 3. Construed as a Whole, 1129. 4. Construed with Reference to Statutes in Pari Materia, 1129. 5. Construed with Reference to Primary Meaning of Words, 1130. 6. Construed as Prospective or Retrospective, 1130. 7. Construed Reasonably, 1130. 12. Later Provision Prevails over Prior, 1130. 13. Rule of Expressio Unius, 1130. J. Aids to Construction, 1130. 2. Intrinsic Aids, 1130. f. Prohibitions and Penalties, 1130. 3. Extrinsic Aids, 1130. a. Legislative Construction, 1130. (1) In General, 1130. b. Judicial Construction, 1130. c. Contemporaneous and Practical Construction, 1131. (1) In General, 1131. (3) By Whom Construed. 1131. d. Legislative History, 1131. ' e. Existing Law and History, 1131. f. Reason, Purpose and Object. 1131. g. Governmental Policy, 1132. h. Subject Matter, 1132. K. Consequences to Be .^voided, 1132. 1. In General, 1132. 2. Invalidity, 1132. 3. L^nconstitutionality, 1132. 1123 74-79 STATUTES. Vol. XL 4. Extraterritoriality, 1132. L. Construction of Particular Statutes, 1132. 2. Re-Enacted Statutes, 1132. 3. Revised Statutes and Codifications, 1133. 5. Repealed and Repealing Statutes, 1133. 11. Penal Statutes. 1133. 15. Afifecting Rights of Indians, 1133. 24. Revenue Statutes, 1133. c. Construed Liberally, 1133. 28. Other Particular Statutes. 1133. M. Construction of Particular Words and Phrases, 1133. 2. General Terms, 1133. b. Qualifying General Terms, 1133. '^(2) By Special Terms, 1133. (b) Ejusdem Generis Rule. 1133. aa. Li General, 1133. N. Effect of Construction, 1134. 2. As Stare Decisis, 1134. XVn. Operation and Effect, 1134. J. Prevails over Contract, 1134. K. Territorial Extent of Operation. 1134. M. As to Subsequent Legislation, 1134. CROSS REFERENCES. See the title Statutes, vol. 11. p. 62, and references there given. In addition, see ante, Constitution.m. Lav^, p. 264; Interpretation and Construction, p. 688. IV. Enactment. C. The Legislature — 3. Pov^Ers — b. Restricted by Prior Legislature. — While congress may prescribe rules afifecting after legislation which does not in terms show that it is to be unaffected by them, these rules can not be so framed as to defeat the plain intent of after legislation, and they cease to be effective when necessarily in conflict with a later manifestation of the legisla- tive will.'*^^ D. The Bill — 2. Introduction. — See note 73. K. Legislative Journal — 3. Journal as Evidence — a. In General. — A state court may take judicial notice of the journal entries. ^^^ L. Enrolled Bill — 2. As Evidence. — See note 37. M. At Special Session. — Act Feb. 7. 1906 (P. L. 7). authorizing cities in 'close proximity to be united, and providing for the temporary government of 74-70a. Restricted by prior legislature. with amendments, as on other bills. — (1907) Great Xorthern Ry. Co. r. Flint r. Stone Tracy Co., 220 U. S. 107, 55 United States. 155 F. 945, 84 C. C. A. 93, L. Ed. 389, 31 S. Ct. 342. judgment affirmed. Great Northern R. 78-19a. Journal as evidence. — Peters v. Co. V. United States. 208 U. S. 452. 52 L. Broward. 222 U. S. 483, 56 L. Ed. 278, 32 Ed. 567, 28 S. Ct. 313. S. Ct.~ 122. See ante, JUDICIAL NO- 74-73. Introduction.— The substitution TICE. p. 810. in the senate of a tax on corporations in 79-37. Title as shown by journal. — lieu of the plan of inheritance taxation "When there is a variance between the contained in a general bill for the col- title of a bill as enrolled and promul- lection of revenue as it came from the gated and the title of the act as shown house of representatives, where the bill b}^ the journals, the latter will control originated, was not forbidden by the pro- under the express decision of the highest visions of Const. U. S., art. 1, § 7, that court of the state of Florida." Peters v. all bills for the raising of revenue shall Broward, 222 U. S. 483, 491. 56 L. Ed. originate in the house of representatives, 278, 32 S. Ct. 122. tut the senate may propose or concur 1124 Vol. XL STATUTES. l^-^l the consolidated city, and the payment of debts, etc., is within the scope of a proclamation of the governor calling an extra session for the purpose of ena- bling cities in close proximity to be united in one municipality.--''' Where the general assembly has been convened by the governor in extraordinary session to meet on a day named to consider certain designated subjects, the governor may subsequently before the day stated issue another proclamation submitting additional subjects to the consideration of the extra session.'^"'' N. By Territory. — See ante. Constitutional Law, p. 264. Vm. Form. B. Title and Subject — 1. Constitutional Provisions — a. In General. — See note 83. d. Compliance with. — \\'hether or not the statute complies with this con- stitutional provision is a state and not a federal question.'^'''' IX. Validity. B. Where Constitution Violated. — An unconstitutional law affords no redress from the courts to one who expends money on the faith of it. Such person's only redress is the legislature.-^^ D. Where Act Uncertain or Repugnant. — See note 2Z. G. Of Special and Local Acts — 2. Lender United State.s Constitution. — See ante. Constitutional Law, p. 264. • 4. Lender Act of Congress in Regard to Territories. — See note 36. 79-37a. At special session. — Hunter v. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40, affirming judgment In re City of Pittsburgh, 217 Pa. 227, 66 Atl. 348; Appeal of Hunter, 217 Pa. 227, 66 Atl. 348; In re City of Pittsburgh, 32 Pa. Super. Ct. 210. 79-37b. Hunter v. Pittsburgh. 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40, affirm- ing judgment In re City of Pittsburgh, 217, 227, 66 Atl. 348; Appeal of Hunter, 217 Pa. 227, 66 Atl. 348; In re City of Pitts- burgh, 32 Pa. Super. Ct. 210. 83-83. Subject and title. — It is so pro- vided by the constitution of Florida. Peters v. Broward. 222 U. S. 483, 56 L. Ed. 278, 32 S. Ct. 122. * 83-89a. Compliance with. — Peters v. Broward. 222 U. S. 483, 56 L. Ed. 278, 32 S. Ct. 122. See ante, COURTS, p. 398. 86-21a. Where constitution violated. — Peters v. Broward, 222 U. S. 483, 56 L. Ed. 278, 32 S. Ct. 122. 86-23. Where act uncertain or repug- nant. — The words "except in case of emergency," in the proviso in Act March 4, 1907, c. 2939, § 3, 34 Stat. 1416 (U. S. Comp. St. Supp. 1909, p. 1171), making it unlawful for railway carriers engaged in transportation in the District of Co- lumbia or the territories, or in interstate or foreign commerce, to require or per- mit em.ployees engaged in such transpor- tation to be or remain on duty for a longer period than that prescribed, do not make the application of the act so uncertain as to destroy its validity, even though the proviso in § 3, limiting the effect of the entire act, can be said to include everything which mav be em- braced within the term "emergency." Baltimore, etc., R. Co. v. Interstate Com- merce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621. 87-36. Under act of congress in regard to territories. — The granting of especial privileges by any form of legislative ac- tion, and not merely the conferring of such privileges as a part of the grant of a forbidden private character, was what was prohibited by the provision of Wash- ington Organic Act March 2, 1867. c. 150, 14 Stat. 426, that the territorial legisla- ture should not grant private charters or especial privileges, but might enact gen- eral incorporation acts. Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147, reversing decree (C. C. 1907), Board of Trustees of Whitman College V. Berryman, 156 F. 112. The generic prohibition against the granting of especial privileges, made by Washington Organic Act March 2, 1867, c. 150, 14 Stat. 426, can not be construed as intended to forbid merely the creation of such privileges as a legislative grant of an exclusive right to ferries, bridges, etc., even if it be conceded that such grants were a common form of terri- torial legislative abuse prior to the adop- tion of that statute, and were the gen- erating cause of the insertion of this pro- hibition. Berryman <■. Board, 222 U. S. 334, 56 L Ed. 225, 32 S. Ct. 147. A territorial statute giving perpetual succession to an incorporated educational mstitution, and endowing it with a per- petual exemption from taxation as to all its propert}', real and personal, grants an especial privilege within the meaning of 1125 87-89 STATUTES. Vol. XL 5. What Acts Are Special and Local. — See note 37. N. Extent of Invalidity — 2. Total Invaliuitv. — See notes 48, 49, 50. 3. Partial Invalidity. — See note 52. the provisions of Washington Organic Act March 2, 1867, c. 150, 14 Stat. 42G, that the territorial legislature shall not grant private charters or especial privi- leges, btit may enact general incorpora- tion acts. Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225. 32 S. Ct. 147. Assent of congress. — The assent of congress to the grant of an especial privilege by the territorial legislature, contrarj' to the express provisions of the organic act, can not be implied from its failure to disapprove such enactment. (1912) Berryman r. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147, reversing de- cree (C. C. 1907), Board of Trustees of Whitman College v. Berrvman, 156 F. 112. 87-37. What acts are special and local. —Act February 7, 1906 (P. L. 7), au- thorizing the consolidation of contiguous cities, is not in violation of Const., art. 3, § 7, forbidding local or special legisla- tion, though at the time of its passage the cities of Pittsburg and Allegheny were the only ones in the state to which such legislation would technically apply. Hunter t'. Pittsburgh, 207 U. S. 161, 52 L. Ed. 151, 28 S. Ct. 40, affirming judg- ment In re City df Pittsburgh, 66 A. 348, 217 Pa. 227 (Pa. Super. Ct. 1906). In re City of Pittsburgh, 32 Pa. Super. Ct. 210. 88-48. Total invalidity.— As the part of § 1283 of the Gen. Laws of Kan. of 1901 in regard to suits by foreign corpora- tions wliich relates to the statement to be filed with the secretary is unconstitu- tional, and as the clause in the same sec- tion, relating to suits in the state court, is so dependent upon and connected with that part as to be meaningless when standing alone, the section must be held inoperative in all its parts. International Textbook Co. v. Pigg, 217 U. S. 91. 114, 54 L. Ed. 678, 30 S. Ct. 481. 88-49. The invalidity, as applied to in- trastate commerce, of the provision of Employers' Liability Act July 11, 1906, c. 3073, 34 Stat. 232 fU. S. Comp. St. Supp. 1907, p. 891], that "every common carrier engaged in trade or commerce" in the District of Columbia or in the territories or lietween the several states shall be lial)le for the death or injury of "any of its employees" which may result from the negligence of "any of its officers, agents, or employees," invalidates such provision as applied to interstate com- merce. Judgments (C. C. 1906). 148 F. 986. and (C. C. 1907), 148 F. 997, affirmed. The Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141. 89-50. The validity of Kentucky Acts 1904, chap. 85, so far as it prohibits do- mestic corporations from teaching white and negro pupils in the same institution, can not be deemed affected by its pos- sible invalidity under the federal con- stitution as to individuals, where the highest state court considers the act separable, and, while sustaining it as an entirety, gives an independent reason which applies only to corporations. Berea College v. Kentucky, 211 U. S. 45, .:3 L. Ed. 81, 29 S. Ct. 33. 89-52. Partial invalidity. — Grenada Lum- ber Co. V. Mississippi, 217 U. S. 433, 54 L. Ed. 826, 30 S. Ct. 535; Citizens' Nat. Bank v. Kentucky, 217 U. S. 443, 54 L. Ed. 832. 30 S. Ct. 532. A statute which is clearly separable may be valid as to one class while in- valid as to another. Berea College v. Kentucky, 211 U. S. 45, 54, 53 L. Ed. 81, 29 S. Ct. 33. "Where a statute contains provisions which are constitutional and others* which are not, efifect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the con- tention that that which is indivisible may l)e divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only where it is plain that congress would have enacted the legislation v.'ith the unconstitutional provisions eliminated." The Employers' Lialiilitv Cases. 207 U. S. 463, 501, 52 L. Ed. 297, 28 S. Ct. 141. The invalidity, so far as interstate com- merce '^s concerned of the provisions of the federal Employer's Liability Act (Act June 11, 1906, c. 3073. § 1, 34 Stat. 232 [U. S. Comp. St. Stipp. 1907, p. 891]), does not invalidate such of its provisions as attempt to regulate commerce within the District of Columbia and the terri- tories. Judgment. Gutierrez -v. El Paso & N. E. R. Co. (Tex.). 117 S. W. 426. affirmed El Paso, etc., R. Co. f. Gu- tierrez, 215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21. "It was not intended to hold the act unconstitutional in so far as it related to the District of Columbia and the ter- ritories, for it is there suggested that to interpolate in the act the qualifying- words contended for would destroy the act in respect to the Dir-trict of Columbia rud- the territories In' limiting its opera- tion in a field where congress had plenary power, and did not depend for its au- thority upon the interstate commerce clause of the constitution. The act in 1126 •Vol. XI. STATUTES. 91-98 X. Amendment. E. Effect of Amendment. — When for purposes of an enlargement or con- traction a statute is re-enacted or repeated with amendments, the amendatorv act is an affirmation and continuation of the prior law in so far as in substance and operation it is the same, and is to be regarded as new legislation only so far as it ditYers from the prior law.^^^ XI. Repeal. C. Power to Repeal.— See note 83. And see ante, "Restricted by Prior Legislature," IV, C, 3, b. E. Express Repeal— 2. Of Lncoxsistent Acts.— A clause generally re- pealing all laws and parts of laws in conflict with the act of which it is. a part repeals nothing that would not be equally repealed without it. '•'■='' F. Implied Repeal— 1. In GkxKral.— See note 3. To establish the repeal of question is set forth in full in a note to The Employers' L^iability Cases, 207 U. S. 463, 4'JO, 52 L. Ed. 297, 28 S. Ct. 141." El Paso, etc., R. Co. v. Gutierrez, 215 U. S. 87, 94, 54 L. Ed. 106, 30 S. Ct. 21. The possible invalidity of the clause of Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584 (U. S. Coinp. St. Supp. 1907, p. 892), imposing penalties for violations of its provisions forbidding railway carriers from transporting in interstate commerce commodities v\'ith which they are as- sociated, or in which thej' are interested can not afifect the validity of these pro- visions, since the penalty clause is wholly separable therefrom. Judgment (C. C. 1908), 164 F. 215, reversed. Attorney General v. Delaware, etc., Co., 213 U. S. 366. 53 L. Ed. 835, 29 S. Ct. 527. The invalidity of provisions as to gas pressure and penalties in Laws N. Y. 1905, p. 2091, c. 736, and Laws 1906, p. 235, c. 125, regulating rates in New York City, does not avoid provisions as to rates, from which the invalid provisions are clearly separable. Decree (C. C. 1907), Consolidated Gas Co. v. City of New York, 157 F. 849, reversed. Willcox V. Consolidated Gas Co., 212 U. S. 19, 53 L. Ed. 382, 29 S. Ct. 192. The possible unconstitutionality of Sess. Laws Okl. 1899, p. 188, c. 21, § 4, making it an ofifense to sell products of petroleum which do not conform to the statutory standard, does not affect the validity of the other sections which pro- vide for inspection and branding. Judg- ment (1907), 89 P. 212. 18 Okl. 107, af- firmed. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 L. Ed. 453, 29 S. Ct. 270. The possible invalidity as to individual carriers of the provisions of Elkins Act February 19, 1903, c. 708, 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), imput- ing to the carrier the acts, omissions, or failures of its officers and agents, acting within the scope of their employment, does not affect the validity of so much of that act as imputes to corporate car- riers the commission i)y officers and agents, acting within the scope of their employment, of criminal violations of the prohibitiions of that act against reoates. Judgment (C. C. 1906), United States v. Xew York Cent. & H. R R. Co., 146 F. :J98, affirmed. New York, etc., R. Co. v. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304, followed in New York, etc., R. Co. V. United States, No. 2, 212 U. S. 500, 53 L. Ed. 624. 29 S. Ct. 309. 91-66a. Effect of amendment. — Great Northern R. Co. v. United States, 155 F. '.145, 84 C. C. A. 93, judgment affirmed, Great Northern R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 92-83. Power to repeal. — Acts 1895, p. 21, c. 21 (Rev. St. 1895, tit. 60, c. 2), eti- titled "An act to encourage irrigation and to provide for the acquisition of prop- erty to the use of water and for the con- .■-truction and maintenance of canals, ditches, flumes, dams, reservoirs, and wells for irrigation, and for inining, mill- ing, the construction of waterworks and stock raising," and providing for the or- ganization of corporations for the pur- poses mentioned, and giving such corpo- rations the power of eminent domain, docs not violate Const., art. 3, § 35, on the ground that both the title and body ')f the act express more than one sub- ject. Judgment (1905), 86 S. W. 11, 98 Tex. 494, 107 Am. St. Rep. 640, affirmed. Borden v. Trespalacios Rice, etc., Co., •-^04 U. S. 667, 51 L. Ed. 671, 27 S. Ct. 785. 93-93a. Of inconsistent acts.— (1907) Great Northern Ry. Co. v. United States, 155 F. 945, 84 C. C. A. 93, judgment af- firmed. Great Northern R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 98-3. Implied repeal. — The rule that a later act covering the whole subject of a former act and embracing new provisions operates bv imolication to repeal the prior act is subject to the qualification that where the later act expresses the ex- tent to which it is intended to repeal prior laws, as by a clause repealing all laws and parts of laws in conflict there- 1127 99-105 STATUTES. Vol. XL a statute by implication it is insufficient to show merely that a later statute making no mention of prior one employs language broad enough to cover some part or all of it. but it must appear that the two statutes can not stand together, reasonable purpose and operation being accorded to each.'*^ 11/^. Of Code or Revised Statute. — Subsequent legislation upon a gen- eral subject covered by a code or systematic collection of general rules deal- ing with such subject in a comprehensive way carries with it an implication that the general rules are not superseded, but are to be applied in its enforce- ment, save as the contrary clearly appears. -^^ L. Effect of Repeal — 1. Upon Repealed Act — a. In General. — See note 39. 6. Upon Pending Suits. — See note 63. with, it excludes any implication of a more extended repeal. (1907). Great Northern Ry. Co. v. United States. 155 F. 945, 84 C. C. A. 93, judgment affirmed. Great Northern R. Co. v. Unitend States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 99-4a. Great Northern R. Co. v. United States, 84 C. C. A. 93, 155 Fed. 945. judg- ment affirmed. Great Northern R. Co. V. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 102-26a. Of code or revised statute.^ Subsequent legislation upon a general subject covered by a code or systematic collection of general rules dealing ^vith such subject in a comprehensive waj- car- ries with it an implication that the gen- eral rules are not superseded, but are to be applied in its enforcement, save as the contrary clearly appears. United States f. Barnes, 222 U. S. 513, 56 L. Ed. 291, 32 S. Ct. 117. 103-39. Upon repealed act. — There are cases which go so far as to say that the unqualified repeal of a law as efifectu- ally destroys rights and lia])ilities de- pendent upon it. not past and concluded, as if the statute had never existed. Tt is, however, putting it strongh' enough to say. that an unqualified repeal operates to destroy inchoate rights, as a release of impprfect obligations and as a remis- sion of penalties and forfeitures de- oendent upon the destroyed statute. United States v. Reisinger, 128 U. S. 398, 32 L. Ed. 480, 9 _S. Ct. 99. There has been a marked legislative trend in the di- rection of escaping from the serious con- senuence sometimes incident to this com- mon-law rule of construction, indicated by general statutes saving liabilities, penalties and forfeitures incurred un- der repealed statutes. Such a general statute was passed by congress on Feb- ruarv 25, 1871, ch. 71. ifi Stat. 431, the fourth section of whirh was carried into the revision of 1878 Pud is now in force as § 13. Rev. Stat. Hertz v. Woodman, ?18 U. S. 205, 216, 54 L. Ed. 1001, 30 S. Ct fi21. 105-63. Upon pending suits. — The ex- ception from the operation of the pro- vision repealing conflicting laws, which is made by the Hepburn Act (Act June 29, 1906, c. 3591, § 10,-34 Stat. 584 fU. S. Comp. St. Supp. 1907, p. 892]), in favor of causes pending in the federal courts, which "shall be prosecuted to conclusion in the manner heretofore provided by law," was addressed solely to the pro- cedure to be followed in pending cases, and such section, therefore, does not supeisede the general 7)rovision of Rev. St. U. S., § 13 [U. S. Comp. St. 1901, p. 6], saving existing forfeitures, penalties, or liabilities from repeal, so as to pre- vent future criminal prosecutions for of- fenses against the Elkins Act (Act Feb. 19, 1903, c. 708, 32 Stat. 847 [U. S. Comp. St. Supp. 1907, p. 880]), committed prior to the adoption of the later statute. Judgment (C. C. A. 1907), 155 F. 945, 84 C. C. A. 93, affirmed. Great Northern R. Co. 7'. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. Efifect must be given, in construing a repealing ' act, to the general saving clause in Rev. St. U. S., § 13 [U. S. Comp. St. 1901, p. 6], prescribing the ef- fect of repealing acts on existing penal- ties, forfeitures, and liabilities, unless, either by express declaration or neces- sary implication arising from the terms of the repealing law as a whole, it re- sults that the legislative mind will be set at naught by giving effect to such saving clause. Judgment (C. C. A. 1907), 155 F. 945, 84 C. C. A. 93, affirmed. Great Northern R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct._ 313. As applied to subsequent repealing acts which do not express!}^ or by necessary implication contravene its provisions. Rev. St., § 13 [U. S. Comp. St. 1901, p. 6], prescribing the efifect of a repealing act on existing forfeitures and liabilities, is obligatory on the courts, but beyond this is without effect, and not obligatory on any one. (1907), Great Northern Ry. Co. V. United States, 155 F. 945, 84 C. C. A. 93, iudgment affirmed. Great North- ern R. Co. V. United States. 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 1128 Vol. XI. STATUTES. 108-122 XVI. Construction. B. Distinguished from Interpretation. — See note 96. G. Manner of Construction — 2. According to Intextiox — a. In Gen- eral. — See note 39. 5. CoxsTRuED BY IMPLICATION — a. In General. — See note 55. I. General Rules of Construction — 2. Construed to Effectuate Legis- lative Intent. — See note 74. 3. Construed as a Whole. — See notes 76, 79, 86. . 4. Construed with Reference to Statutes in Pari Materia. — See note 93. 108-96. Distinguished from interpreta- tion. — It may not be doubted that in common usage interpretation and con- struction are usually understood as bav- ins: tlie same significance. United States V. Keitel, 211 U. S. 370, 386, 53 L. Ed. 230, 29 S. Ct. 123. Interpretation as well as construction of the statute, conceding an abstract dis- tinction between these two terms, is comprehended by the provision of the Act of March 2, 1907, authorizing; a writ of error on behalf of the government from the federal supreme co'Jit to review a judgment of a district or circuit court, quashing an indictment, when based upon the construction of the statute upon which tiie indictment is founded. United States V. Keitel. 211 U. S. 370, 53 L. Ed. 230, 29 S. Ct. 123. 114-39. According to intention. — Great Northern R. Co. r. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 116-55. Construed by implication. — Hertz V. Woodman, 218 U. S. 205, 54 L. Ed. 1001, 30 S. Ct. 621. The intent of the legislature constitutes the law, and may be as effectually mani- fested by what is necessarily' implied as by what is expressed, and where there are conflicting manifestations of the leg- islative will, the last is controlling. (1907), Great Northern Ry. Co. v. United States, 155 F. 945. 84 C. C. A. 93, judg- ment affirmed. Great Northern R. Co. ?•. United States, 208 U. S. 452, 52 L. Ed. 567. 28 S. Ct. 313. 118-74. Construed to effectuate legis- lative intent. — Great Northern R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. See ante, "Upon Pendinsr Suits," XI. L, 6. 119-76. Construed as a whole. — The Employers" [Liability Cases. 207 U. S. 463. 52 L. Ed. 297, 28 S. Ct. 141. 'Tt is elementary that all the words of the statute must be considered in de- termining its "meaning-." Parish f. Mac- VeP'^h. 214 U. S. 124, 135, 53 L. Ed. 936, 29 S. Ct. 556. 120-79. United States v- Keitel, 211 U. S. .■!~0. 393, .-3 L. Ed. 230, 29 S. Ct. 123. Ejusdem generis. — The addition in the Act of Eebruarv 20. 1907, of the words, "or for any otlier immoral purpose," after the word "prostitution,"' must have been made for some practical object. Those added words show beyond ques- tion that congress had in view the pro- tection of society against another class of alien women other than those who might be brought here merely for pur- poses of "prostitution." In forbidding the importation of alien women "for any otlier immoral purpose," congress evi- dently thought that there were purposes in connection with the importations of alien women which, as in the case of importations for prostitution, were to 'oe deemed iminoral. It may be admitted that in accordance with the familiar rule of ejusdem generis, the immoral purpose referred to by the words "any other im- moral purpose,"" must be one of the same general class or kind as the particular purpose of "prostitution"" specified in the same clause of the statute. 2 Lewis' Sunderland Stat. Const., § 423, and au- thorities cited. But that rule can not avail the accused in this case; for, the immoral purpose charged in the indict- ment is of the same general class or kind as ihe one. that controls in the importa- tion of an alien woman for the purpose strictly of prostitution. L'nited States v. Bitty, 208 U. S. 393, 401, 52 L. Ed. 543, 28 S. Ct. 396. 121-86. Restraining wider provisions. — "In view of tine ambiguity and con- fusion in the statute we think the duty of interpreting should not be so exerted as to cause one portion of the statute which, as conceded by the government, is radical and far reaching in its opera- tion if literally construed, to extend and enlarge another portion of the statute which seems reasnnal^le and free from doubt if also literallv interpreted. Rather it seems to us our dut}^ is to restrain the wider, and we think, doubtful prohibi- tions so as to make them accord with the narrow and more reasonable provisions, and thus harmonize the statute." .At- torney General z\ Delaware, etc., Co., 213 IT. S. 366, 412, 53 L. Ed. 835, 29 S. Ct. 52~. 122-93. Construed with reference to statutes in pari materia. — Great Northern R. Co. r. United States, 208 U. S. 452, 52 L Ed. 567. 28 S. Ct. 313; United States 1129 124-138 STATUTES. \'ol. XL 5. Construed with RefkrExXCE to Primary Meaning of Words. — See note 25. 6. Construed as Prospective or Retrospective. — See note Z5. 7 . Construed Reasonably. — See note 44. 12. Later Provision Prevails over Prior. — See note 53. 13. Rule oe ExprEssio Unius. — See note 60. The maxim invoked expresses a rule of construction, not of substantive law\ and serves only as an aid in discovering the legislative intent when that is not otherwise manifest. In such instances it is of deciding importance; in others, not.*'-'* J. Aids to Construction — 2. Intrinsic Aids — f. Prohibitions and Penal- ties. — The scope of a statute is not necessarily confined to the clause prescrib- ing a penalty for doing prohibited acts.-^ 3. Extrinsic Aids — a. Legislative Construction — (1) In General. — -See note 4. b. Judicial Construction. — Where the lower federal courts to which con- gress has committed the enforcement of a statute have continuously construed it in a certain way and rights have been acquired under that construction, the supreme court should not overrule it in the absence of a clear necessity. ^^^ V. Stever, 222 U. S. 167, 5G L. Ed. 145, 32 S. Ct. 51. Subsequent congressional legislation maj^ be considered as an aid to the in- terpretation of prior legislation upon the same subject. Tiger v. Western Inv. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578, reversing judgment (1908), Western Inv. Co. V. Tiger, 96 P. 602, 21 Okl. 630. 124-25. Construed with reference to primary meaning of words. — Louisville, etc., R. Co. V. Mottley, 210 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. 127-35. Construed as prospective or retrospective. — Davidson Bros. Marble Co. V. United States, 213 U. S. 10, 53 L Ed. 675, 29 S. Ct. 324, following United States Eidelity, etc., Co. v. United States. 209 U. S. 306, 52 L. Ed. 804, 28 S. Ct. 537, followed to effect that the Act of Feb- ruary 24, 1905, ainending the Act of Au- gust 13, 1894, is prospective. "The presumption is very strong that a statute was not meant to act retrospec- tively, and it ought never to receive such a construction if it is susceptible of any other. It ought not to receive such a construction unless the words used are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the legislature can not be otherwise satisfied." United States Fidelity, etc., Co. v. United States, 209 U. S. 306, 314, 52 L. Ed. 804, 28 S. Ct. 537. 128-44. Construed reasonably. — Inter- national Textbook Co. v. Pigg. 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481; Standard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. See ante, MONOPOLIES .\XD CORPORATE TRUSTS. D. 874. 130-53. Later provision prevails over prior.— Ilertz v. Woodman, 218 U. S. 205, 54 L Ed 1001, 30 S. Ct. 621; Great North- ern R. Co. V. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. 130-60. Rule of expressio unius. — Great Northern R. Co. v. United States, 208 U. S. 452, 467, 52 L. Ed. 567, 28 S. Ct. 313. 131-62a. The express extension of the provisions of U. S. Rev. Stat., §§ 3232-3241, and 3243, U. S. Comp. Stat. 1901, pp. 2091, 2095, which deal with special taxes, to the special tax on oleomar- garine, made by § 3 of the Act of August 2, 1886 (24 Stat, at L. 209, chap. 840, U. S. Comp. Stat. 1901, p. 2228), imposing such tax, and not purporting to be com- plete in itself is not an implied exclusion of the general provisions of § 3177 (U. S. Comp. Stat. 1901, p. 2069), for the en- try by revenue officers of any building or place where any articles or objects sub- ject to tax are made, produced, or kept, for the purpose of examining such ar- ticles or objects. United States v. Barnes, 222 U. S. 513, 56 L- Ed. 291, 32 S. Ct. 117. 135-2a. Prohibitions and penalties. — Waskey v. Hammer, 223 U. S. 85, 56 L. Ed. 359, 32 S. Ct. J 87, construing § 452, Rev. Stat., with regard to mining loca- tions. 135-4. Legislative construction. — "While the mere declaration contained in a stat- ute that it shall be regarded as a tax of a particular character does not make it such if it is apparent that it can not be so designated consistently with the mean- ing and effect of the act, nevertheless the declaration of the lawmaking power is entitled to much weight, and in this stat- ute the intention is expressly declared to impose a special excise taS with respect to the carrying on or doing business by such corporation, joint stock company or association, or insurance company." Flint V. Stone Tracy Co., 220 U. S. 107, 145, 55 L. Ed. 389, 31 S. Ct. 342; Tiger v. Western Inv. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. 138-26a. Judicial construction. — Henry 1130 Vol. XI. STATU TBS. 138-146 c. Co}itcmpuraneous and Practical Construction — ( 1) In General. — See note 27 . (3) By Whom Constrned. — See note 45. (J. Legislative History. — See notes 50, SI, iS. e. Existing Lazv and History. — See note 58. f. Reason. Purpose and Object. — See notes 60, 61, 62. T. Dick Co., 224 U. S. 1, 50 L. Ed. 645, 32 S. Ct. 364. See, also, ante, COURTS, p. 398. 138-27. Contemporaneous and practical construction. — Where the meaning of a statute is doubtful, great weight is given to the construction placed on it by the department charged with its execution. United States z'. Cerecedo Hermanos Y Compania, 209 U. S. 337, 52 L. Ed. 821, 28 S. Ct. 532. The rule which gives strength to the construction of the officers who are di- rected to execute the law and who, it has been said, may have written or sug- gested it, is given an added force from one of the provisions of the act of con- gress directing the secretary of the in- terior to make the necessary regulations to carry out the purposes of its enact- ment. Jacobs V. Prichard, 223 U. S. 200, 214, 56 L. Ed. 405, 32 S. Ct. 289. 142-45. By whom construed. — The con- struction given by the department charged with the execution of the tariff acts is entitled to great weight. Komada & Co. r. United States, 215 U. S. 392, 396, 54 L. Ed. 249, 30 S. Ct. 136; United States V. Cerecedo Hermanos Y Compania, 209 U. S. 337, 339, 52 L. Ed. 821, 28 S. Ct. 532. Land department. — -Waskey z'. Ham- mer, 223 U. S. 85, 56 L. Ed. 359, 32 S. Ct. 187. The federal courts will accept as con- trolling the decision of the land depart- ment that the use of the words "as- signors'' and "assigns" in the amend- ment of Act March 3, 1891, c. 561, § 2, 26 Stat. 1096 (TJ. S. Comp. St. 1901, p. 1549), to Desert Land Act March 3, 1877, c. 107, 19 Stat. 377 (U. S. Comp. St. 1901. p. 1548), evidenced the intention of con- gress to remove the restrictions of the earlier act upon the assignment of a des- ert land entry, and was not merely in recognition of the right that every en- tryman has under the public land laws of the United States to make an assign- ment after he has acquired the equitable title to the land embraced within his entry. United States v. Hammers, 221 V. S. 220. 55 L. Ed. 710. 31 S. Ct. 593. The federal supreme court will follow the continuous construction of the land department that the special provision for Louisiana in the swamp Land Grant Act of March 2, 1849 (9 Stat. 352, c. 87), that title shall vest in the state on approval ■of a list of ^ands l)v th-'^ secretary of the interior, was not affected by the general clause of llie Act of September 28, 1350 (9 Stat. 519, c. 84), granting Swamp lands to Arkansas, to vest only upon the issu- ance of a patent, that the provisions of this act be extended to and their benefits be conferred upon each of the other states in which such swainp and over- flowed lands may be situated. Louisiana z:-. Garfield, 211 U. S. 70, 53 L. Ed. 92, 29 S. Ct. 31. See ante, PUBLIC LANDS, p. 1012. 143-50. Legislative history. — Parish v. MacVeagh, 214 U. S. 124, 53 L. Ed. 936, 29 S. Ct. 55G. 143-52. The words "in which it is in- terested directly or indirectly" in the commodities clause of the Hepburn Act of June 29, 1906, to prevent discrimina- tion by carriers of interstate commerce, are to be construed with reference to the legislative history of the act, and the fact that an amendment declaring that the act was intended to embrace the pro- hibition of carrying a commodity manu- factured, mined, produced or owned by a corporation in which a railroad com- pany was interested as a stockholder, was rejected, therefore the clause is to be construed as not extending to com- modities produced by corporations in which the only interest of the carrier was that of a stockholder. Attorney General v. Delaware, etc., Co., 213 U. S. 366. 53 L. Ed. 835, 29 S. Ct. 527. See nnte. INTER ST.-\TE AND FOREIGN COMMERCE, p. 689. 143-55. The rule that congressional de- bates may not be used as a means to an interpretation of an act of congress is not violated by resorting to them to as- certain the historj' of the period when the statute was adopted. Standard Oil Co. T. United States, 221 U. S. 1. 55 L. Ed. 619, 31 S. Ct. 502, affirming judgment (C C. 1909) United States t-. Standard Oil Co. of New Jersey, 173 F. 177. 145-58. Existing law and history. — I-oii;sville. etc.. R. Co. r. Mottley, 219 U. S. 467, 55 L. Ed. 297, 31 S. Ct. 265. 146-60. Reason, purpose and object. — Shevlin-Carpenter Co. ;■. Minnesota, 218 U. S. 57. 54 L. Ed. 930, 30 S. Ct. 663; Waskey t'. Hammer. 223 U. S. 85, 56 L. Ed. 359, 32 S. Ct. 187. 146-61. Tiger ;-. Western Inv. Co., 221 U. S. 286. 55 L. Ed. 738. 31 S. Ct. 578; Jacobs V. Prichard, 223 U. S. 200, 56 L. Ed 405. 32 S. Ct. 289. 146-62. .\ttornev General r. Dela- 1131 147-155 STATUTES. Vol. XL g. Governmental Policy. — See note 64. h. Subject Matter. — See note 66. K. Consequences to Be Avoided — 1. In General. — See note 77. 2. Invalidity. — See note 84. 3. Unconstitutionality. — See note 85. 4. Extraterritoriality. — See note %7 . L. Construction of Particular Statutes — 2. Re-Enacted Statutes. — See note 21. ware, etc., Co., 213 U. S. 366, 405, 53 L. Ed. 835, 29 S. Ct. 527. But the statute may be given a broader efiFect than the evil giving it birth. Weems V. United States,, 217 U. S. 349. 54 L. Ed. 793, 54 S. Ct. 544. 147-64. Governmental policy. — Standard Oil Co. V. United States, 221 U. S. 1, 55 L. Ed. 619, 31 S. Ct. 502. _ Acts in regard to Indians. — Tiger v. Western Inv. Co., 221 U. S. 286, 55 L. Ed. 738, 31 S. Ct. 578. See ante, IN- DIANS, p. 641. 148-66. Subject matter. — Waskey v. Hammer, 223 U. S. 85, 56 L. Ed. 359, 32 S. Ct. 187. 149-77. Consequences to be avoided. — "The government, in argument, suggests that the radical result of the statute may be assuaged, without violating its spirit, l,>y limiting its prohibitions so as to cause ihem to apply only so long as the com- modities to which it applies are in the hands of a carrier or its first vendee. But no such limitation is expressed in the statute, and to engraft it would be an act of pure judicial legislation. Besides, to do so would be repugnant to the as- serted spirit and purpose of the statute which lies at the foundation of the con- struction upon which the government re- lies." Attorney General v. Delaware, etc.. Co., 213 U. S. 366, 405, 53 L. Ed. 835, 29 S. Ct. 527. 150-84. Invalidity.— Great Northern R. Co. V. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313. See ante. "Upon Pending Suits," XI, L, 6. "But this would require us to write into the statute words of limitation and restriction not found in it." The Em- ployers' Liability Cases, 207 U. S. 463. 500, 52 L. Ed. 297, 28 S. Cl. 141. "Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unam- biguous, that it may be rewritten to ac- complish that purpose." The Employers' Liabilitv Cases. 207 U. S. 463, 501. 52 L. Ed. 297, 28 S. Ct. 141. 150-85. Unconstitutionality. — New York, etc.. R. Co. V. United States, 212 U. S. 481, 53 L. Ed. 613, 29 S. Ct. 304; Attorney General v. Delaware, etc., Co., 213 U. S. 366, 407, 53 L. Ed. 835, 29 S. Ct. 527; The Abby Dodge, 223 U. S. 166, 56 L. Ed. 390, 32 S. Ct. 310. "Where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the lat- ter." Attorney General v. Delaware, etc., Co., 213 U. S. 366, 408, 53 L. Ed. 835, 2& S. Ct. 527; Harriman v. Interstate Com- merce Comm., 211 U. S. 407, 53 L. Ed. 253, 29 vS. Ct. 115. "It is elementary when the constitu- tionality of, a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity.'' Attorney General i'. Delaware, etc., Co.. 213 U. S. 366. 407, 53 L. Ed. 835, 29 S. Ct. 527. 150-87. Extraterritoriality. — American Banana Co. v. United Eruit Co.. 213 U. S. 347, 53 L. Ed. 826, 29 S. Ct. 511. See ante,. MONOPOLIES AND CORPORATE TRUSTS, p. 874. A statute is to l)e construed as intended to be confined in its operation and effect to the territorial limits over v.'hich the lawmaker has general and legitimate power. American Banana Co. v. United Fruit Co., 213 U. S. 347, 357, 53 L. Ed. 826, 29 S. Ct. 511. 155-21. Construction of particular stat- utes. — The federal courts will follow the construction given by the courts of the government of Hawaii to a statute first enacted on May 24, 1866, legitimating children born out of wedlock upon the marriage of their parents, as not' applica- l>!e to the issue of an aduh-.Tous relation. Kealoha v. Castle. 210 U. S. 149, 52 L. Kd. 998. 28 S. Ct. 684; Great Northern R. Co. T. United States, 208 U. S. 452, 468, 52 L. Ed. 567, 28 S. Ct. 313. As the construction affixed to a statute many years before the Hawiian Islands were acquired is final, in effect that con- struction had entered into the statute at the time of acquisition and must be con- sidered as if written in the law. Kealoha V. Castle, 210 U. S. 149, 154. 52 L. Ed. 998, 28 S. Ct. 684. The re-enactment by congress, without change, of a statute which has previously received a long-continued executive con- struction, is an adoption by congress of such construction. United States v. Cer- 1132 A'ol. XI. STATUTES. 157-171 3. Revised Statutes and Codifications. — See note 35. 5. Repealed axd Repealing Statutes. — See note 51. The act of congress saving liabilities upon the repeal of a statute has been upheld by the federal supreme court as a rule of construction applicable, when not otherwise provided, as a general saving clause to be read and construed as a part of all subsequent repealing statutes, in order to give etlect to the will and intent of congress.-^ ^^ 11. Pexal Statutes. — See note 61. 15. Affecting Rights of Indi.\ns. — A statute relating to the sale of Indian lajid is to be construed with reference to the habits of Indian life.'^'-"' 24. Revenue Statutes — c. Construed Liberally. — See note 4. 28. Other Particular Statutes. — See note 13. M. Construction of Particular Words and Phrases — 2. General Terms — b. Quaiify'uig General Terjiis — (2) By Special Terms — (b) Ejnsdem Gen- eris Rule — aa. In General. — See note 30. ecedo Hermanos Y Compania. 209 U. S. 337. 52 L. Ed. S2I, 2S S. Ct. 532. Words having received a certain con- struction under a prior tariff act must be given the same meaning when used in subsequent acts, on the theory that in us- ing the phrase in the later statute con- gress adopted the construction already given by the federal supreme court. La- timer c'. United States, 223 U. S. 501, 56 L. Ed. 526, 32 S. Ct. 242, citing United States V. Baruch, 223 U. S. 191, 56 h. Ed .399, 32 S. Ct. 306. 157-35. Revised statutes and codifica- tion s. — The change of arrangement, which places portions of what was origi- nally a single section in two separate sections of the Revised Statutes, can not be regarded as altering the scope and pur- pose of the enactment. For it will not be inferred that congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed. Anderson v. Pacific Coast Steamship Co., 225 U. S. 187, 199, 56 L. Ed. 1047, 32 S. Ct. 626. 158-51. Repealed and repealing stat- utes. — United States :■. Reisinger, 128 U. S. 398, 32 L. Ed. 480, 9 S. Ct. 99; Great Northern R. Co. v. United States, 208 U. S. 452, 52 L. Ed. 567, 28 S. Ct. 313; Hertz V. Woodman, 218 U. S. 205. 217, 54 L. Ed. 1001, 30 S. Ct. 621. 158-51a. Act saving liabilities on re- peal of statutes. — Hertz v. Woodman, 218 U. S. 205, 217, 54 L. Ed. 1001, 30 S. Ct. 621. 160-61. Penal statutes. — United States r. Bitty. 208 U. S. 393. 52 L. Ed. 543. 28 S. Ct. 396". The rule of strict construction of crim- inal statutes does not require that the narrowest technical meaning be given to the words employed in disregard of their context, and in frustration of the obvious legislative intent. Judgment (D. C. 1908), 162 F. 687, reversed. United States v. Corbett, 215 U. S. 233, 54 L. Ed. 173, 30 S. Ct. 81. 164-79a. Affecting rights of Indians. — Jacobs V. Prichard, 223 U. S. 200, 56 L. Ed. 405, 32 S. Ct. 289. See ante, INDI- AXS, p. 641. 168-4. Revenue statutes. — A statute for the raising of revenue, even when ac- companied by provisions of a very high penal nature, is still to be construed as a whole and in a fair and reasonable man- ner and not strictly in favor of the de- fendant. United States v. Graf Distilh'ng Co., 208 U. S. 198, 52 L. Ed. 452, 28 S. Ct. 264. Following United States v. Stowell, 133 U. S. 1, 33 L. Ed. 555, 10 S. Ct. 244. See ante, REVENUE LAWS, p. 1071. 169-13. Patent laws.— See ante, P\T- EXTS. p. 93(5. 171-30. Ejusdem generis rule. — The words referred to follow particular words descriptive of schemes of gain dependent upon chance, and are followed by further particular words relating to the same kind of lottery schemes. In such circum- stances, unless there is a clear manifesta- tion to the contrary, general words, not specific Hmited, should be construed as appHcable.to cases or matters of like kind with those described by the particular words. The words "or concerning schemes devised for the purpose of ob- taining money or property by false pre- tenses." in § 3894 of the Revised Statutes relating- to lotteries are to be limited to schemes having a similitude to the lottery and other like schemes particularly de- scribed by the particular words of the section. United States v. Stever, 222 U. S. 167. 174, 50 L. Ed. 145, 32 S. Ct. 51. An employee in the customs service of tlie United States who makes and returns false weights in connection with an entr}'- of imported merchandise is compre- hended by the words "other person'' in the provisions of the Customs Adminis- tration Act of June 10, 1890 (26 Stat, at L. 131-135. chap. 407. U. S. Comp. Stat. 1901, pp. 1886-1895). § 9, for the forfeiture of goods or their value where "any owner, importer, consignee, agent, or 1133 175-180 STIPULATIOXS. Xol. XI. N, Effect of Construction— 2. As Stare; Decisis. — See note 65. XVII. Operation and Effect. J. Prevails over Contract. — The general rule of law is that an act done in violation of a statutory prohibition is void and confers no right upon the wrongdoer, but this rule is subject to the qualification that when, upon a sur- vey of the statute, its subject matter and the mischief sought to be prevented, it appears that the legislature intended otherwise, efifect must be given to that intent ion. ^*^'' K. Territorial Extent of Operation. — See note 82. M. As to Subsequent Legislation. — See ante. "Restricted bv Prior Legis- lature." IV. C, .3, b. STAY BOND.— See ante, Estoppel, p. 553. STAY LAW. — See ante. Limitation of Actions and Adverse Posskssion, p. 828. STAY OF. PROCEEDINGS. —See ante. Bankruptcy, p. 168; post, Supi4.5. 32 S. Ct. 364. prived of the lawful duties and for the Because a statute was construed in a punishment of such person by fine or im- ^ivil cause, afifords no reason for saying- pnsonment or both. United States v. th^t the authoritative construction of the Mescall, 215 U. S. 26. 54 L. Ed. 77, 30 S. statute is not to be applied in a criminal ^JJ^'/.^ A J • • A ■ ,' case. United States v. Keitel, 211 U. S. 175-65 As stare decisis.— A prior de- 070, 392, 53 L. Ed. 230, 29 S. Ct. 123. cision should not be treated as authority, •,,-« o,v t» -i ^ ^ t%7- where it does not appear that any ques- , ^'^-^Of- ^'^""^'l^^ °7«i- ^°"J?1*;T^#^- tion was raised concerning the construe- ':-7 !;, "=i"^,"^er. 223 U. S. 85, 94. 06 L. Ed. tion of the statute in the particular now "''''■ "' "' "'^'' controverted, but that the meaning of the 176-82. Territorial extent of opera- statute was taken for granted, and hence tion.— The Territory of New Mexico can the mere assumption which was indulged P^ss no law having force and effect over in when deciding the case should not now persons or property without its jurisdic- prevent a determination of the signifi- tion. Atchison, etc.. R. Co. z'. Sowers, 213 cance of the language of the statute. U. S. 55, 70, 53 L. Ed. 695, 29 S. Ct. 397. United States v. Corbett, 315 U. S. ?33 See ante, INDICTMENTS. INFORM.V 239. 54 L. Ed. 173. 30 S. Ct. 81. TIONS. PRESENTMENTS AND COM- Where the decisions of the lower fed- PLAINTS, p. 652. era! courts construing a statute have be- 180-la. Clason <•. Matko, 223 U. S. 646, come a rule of property, the supreme 56 L. Ed. 588, 32 S. Ct. 392. 1134 Vol. XI STOCK JA'D STOCKHOLDERS. 18 In Regard to Evidence. — See note 6. STOCK. — See post, Stock and Stockholders. And see ante, Capital — Capital Stock, p. 214. STOCK AND STOCKHOLDERS. II. Definitions, Nature and General Consideration of Stock, 1136. A. Definitions and Distinctions, 1136. E. Certificate of Stock, 1136. VI. Assignment, Transfer, Sale and Pledge, 1136. B. Essentials of \'alid Transfer, 1136. 4. Filing Statement with Secretary of State, 1136. E. Sale of Stock. 1137. 3. Effect of Fraud or Mistake, 1137. b. Rescission, 1137. G. Pledge of Stock, 1137. 1. What Constitutes, 1137. 6. Purchase on Margin Through Stockbroker. 1138. I. Purchase by Director, 1138. VIII. Stockholders, 1138. B. Stockholders' Meeting and Formality of Action, 1138. C. Stockholders" Rights and Powers, 1138. 4. Control of Corporate Affairs, 1138. c. Rights of ^Minority or Single Stockholder, 1138. (2) Right of Action or Suit, 1138. (a) Representation by Corporation in Litigation, 1138. (b) Suits by Stockholders on Behalf of Corporation, 1139. aa. Right in General, 1139. bb. Jurisdiction — 94th Equity Rule and Neces- sary Allegations, 1139. (aa) As to Stockholding. 1139. (cc) Averments as to Eft'orts to Secure Ac- tion by Corporation, 1140. (ee") Jurisdiction of Federal Courts. 1142. D. Stockholders' Duties and Liabilities, 1142. 4. Statutory and Extraordinary Liability, 1142. a. Nature and Terms, 1142. (\) Statutory and Contractual. 1142. (5) Extent, 1142. d. Who Liable as Stockholders. 1142. d) Nonresident Stockholder, 1142. f. Enforcement, 1142. (1) Regulations Generally and Means of Enforcement, 1142. (c) Constitutional Proyisions as Self-Executing. 1142. (6) Where Enforcible, 1142. 180-6. Though all the parties to a suit Fox Indians x\ Sac & Fox Indians. 45 Ct. unite in a stipulation that certain ex parte CI. 287, judgment affirmed Sac & Fox affidavits may be read as evidence, the Indians v. Sac & Fox Indians, 220 U. S. court will not be I)ound thereby. Sac & 481, .5.5 L. Ed. 552, 31 S. Ct. 473. 1 i.-^r, 187-188 STOCK AND STOCKHOLDERS. Vol. XI. CROSS REFERENCES. See the title Stock and Stockholders, vol. 11, p. 186, and references there given. In addition, see ante, Forkign Judgments, Records and Judicial Proceed- ings, p. 592 ; Officers and Agents oe Private Corporations, p. 925. II. Definitions, Nature and General Consideration of Stock. A. Definitions and Distinctions. — The word "stock" is not uniformly used to designate the capital of a corporation, although its primary meaning is capital, in whatever form it may be invested. Indeed, it is not at all unus- ual to find the word used synonymously with "shares," and meaning the cer- tificates issued to subscribers to the company's stock. -^ Capital Stock and Shares Distinguished. — There is an obvious distinc- tion between the capital stock of an incorporated company and the "shares" of the company. The one is the capital upon which the business is to be under- taken, and is represented by the property of every kind acquired by the com- pany. Shares are the mere certificates which represent a subscriber's contri- laution to the capital stock, and measure his interest in the company.^^^ E. Certificate of Stock. — The certificate of shares of stock is not the property itself ; it is but the evidence of property in the shares. The certificate, as the term implies, but certifies the ownership of property and rights in the corporation represented by the number of shares named. *^^ VI. Assignment, Transfer, Sale and Pledge. B. Essentials of Valid Transfer — 4. Filing Statement with Secre- tary OF State. — The obligation of the contract under which the stockholders 187-2a. "Stock."— Wright v. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. It is therefore important to look at the connection in which the word is used when an exemption or substituted method of taxation is involved, to see whether the legislative intent was to exempt the capital of the company, in whatever form invested, or the shares of stock in the hands of the shareholders. Powers v. Detroit, etc., R. Co., 201 U. S. 543, 559, 50 L. Ed. 860, 26 S. Ct. 556; Wright v. Geor- gia R., etc.. Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. Stock meaning capital. — Capital, in whatever form invested, appropriate to the purpose of the company, and not merely the shares held by stockholders, must be regarded as meant by the word "stock," as used in a provision of a rail- way charter that the stock of the com- pany and its branches shall be exempt from taxation for seven years, and after that shall be subject to a tax not exceed- ing a given per cent upon the net proceeds of their investments, in view of the rec- ognition in other provisions of the char- ter of the distinction between capital stock and "shares," and of least sixty years' legislative and executive acquies- cence in reading this partial exemption as applicable to the capital stock of the company, and of a series of decisions of the highest state court, holding either that the whole of the capital was exempt. in whatever form invested, or so much of the investment as corresponded in value to the authorized capital stock. Wright V. Georgia R.. etc., Co., 216 U. S. 420, 54 L. Ed. 544. 30 S. Ct. 242. 187-3a. Capital stock and shares distin- guished. — Wright V. Georgia R., etc., Co., 31G U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 188-6a. Certificate of stock. — Richard- son V. Shaw, 209 U. S. 365, 52 L. Ed. 835, 28 S. Ct. 512. A certificate of the same numl^er of shares, although printed upon dififerent paper and bearing a different number, represents precisely the same kind and value of property as does another certifi- cate for a like number of shares of stock in the same corporation. One share of stock is not different in kind or value from every other share of the same issue and company. They are unlike distinct articles of personal property which differ In kind and value such as a horse, wagon or harness. Tiie stock has no earmark which distinguishes one share from an- other, so as to give it any additional value or importance; like grain of uniform quality, one bushel is of the same kind and value as another. It is a misconcep- tion of the nature of the certificate to say that a return of a different certificate or the right to substitute one certificate for another is a material change in the prop- erty right held by the broker for cus- tomer. Richardson v. Shaw, 209 U. S. 365, 52 L. Ed. 835, 28 S. Ct. 512. 1136 Vol. XL STOCK AND STOCKHOLDERS. 199-203 in a Kansas corporation acquired their stock is not unconstitutionally impaired by Laws Kan. 1898 (Sp. Sess.) p. 32, c. 10, § 12, requiring, as a condition of a legal or binding transfer of stock, that a statement of such transfer shall be filed with the secretary of state by the president, secretary, or managing officer of the corporation, although, when the stock was acquired, the sole requirement of the Kansas statutes in this regard was that corporate stock should be transferable only on the books of the corporation. ''■'■'' E. Sale of Stock — 3. Effect of Fraud or Mistake — b. Rescission. — Purchase of Stock by Officer of Corporation. — Whether or not the ordi- nary relations between directors and shareholders in a business corporation are not of such a fiduciary nature as to make it the duty of a director to dis- close to a shareholder the general knowledge which he may possess regarding the value of the shares of the company before he purchases any from a share- holder, yet there are cases where, by reason of the special facts, such duty exists. •'*"'^ Want of Authority of Agent of Seller. — The purchaser of stock can not escape liability for his fraud in concealing facts affecting its value which he was in good faith bound to disclose, on the theory that, because of the insist- ence of the seller that her agent was not authorized to make the sale, there had never been any consent on her part, obtained by fraud or otherwise, where the court finds that the agent's authority was sufficient, since, in legal effect, her consent will be deemed induced by the fraud. •''"'^ G. Pledge of Stock — 1. What Constitutes. — Pledge by Means of Forged Power of Attorney. — No interest, legal or equitable, was acquired as against the true owner, in the absence of any laches or negligence on his part, under an attempted pledge of a stock certificate by means of a forged power of attorney by a firm of brokers who held the same as evidence of the 199-65a. Henley z: Meyers, 215 U. S. 373, .54 L. Ed. 240, 30 S. Ct. 148, affirming 76 Kan. 723, 93 Pac. 168, 17 L. R. A. 779. 203-87a. Purchase of stock by officers. — A purchase of stock in a corporation by a director and owner of three-fourths of the entire capital stock, who was also administrator general of the company, and engaged in the negotiations which fi- nally led to the sale of the company's lands to the Philippine Islands govern- ment at a price which greatly enhanced the value of the stock, was fraudulent as procured by "insidious machinations" in- ducing the execution of the contract of sale, within the meaning of P. L Code, art. 1269, dcfinmg deceit, where he em- ployed an agent to make the purchase, concealing both his own identity as the purchaser, and his knowledge of the state of the negotiations and their probable successful result. Strong v. Repide, 213 U. S. 419, 53 L. Ed. 853, 29 S. Ct. 521. "The supreme court of Kansas and of Georgia have held the relationship existed in the cases before those courts because of the special facts which took them out of the general rule, and that, under those facts, the director could not purchase from the shareholder his share without informing him of the facts which efifected their value. Stewart z'. Harris, 69 Kan. 498, 66 L. R. A. 261, 105 Am. St. Rep. 178, 77 Pac. 277, 2 A. & E. Ann. Cas. 873; Oli- ver V. Oliver, 118 Ga. 362, 45 S. E. 232. The case before us is of the same general character. On the other hand, there is the case of Tippecanoe County z'. Rey- nolds, 44 Ind. 509-515, 15 Am. Rep. 245, where it was held (after referring to cases) that no relationship of a fiduciary nature exists between a director and a shareholder in a business corporation. Other cases are cited to that effect by counsel for defendant in error. These cases involved only the bare relationship betw"een director and shareholder. It is liere sought to make defendant responsi- l)le for his actions, not alone and simply in his character as a director, but because, in consideration of all the existing cir- cumstances above detailed, it became the duty of the defendant, acting in good faith, to state the facts before making the purchase." Strong f. Repide, 213 U. S. 419, 53 L. Ed. 853, 29 S. Ct. 521. 203-87b. Want of authority of agent of seller. — "If the purchase of the stock l)y the defendant was obtained l>y reason of his fraud or deceit, it is not material to enauire whether the agent of the plaintiff had power to sell the stock. If fraud or deceit existed, the sale can not stand." Strong z: Repide, 213 U. S. 419, 53 L. Ed. 853, 29 S. Ct. 521. 12 U S Enc- 1137 205-229 STOCK AND STOCKHOLDERS. A'ol. XI. owner's financial- responsibility, and under an express agreement that it was not to pass out of their possession. 2*^ 6. Purchase on Margin through Stockbroke;r. — A stockbroker is not the owmer of the shares of stock which he purchases and carries for his cus- tomers on margin, but is essentially, if not strictly, as understood at common law, a pledgee.^^ I. Purchase by Director. — See ante, "Rescission," VI, E. 3, b. Article 1459 of the Spanish Civil Code, prohibiting directors of corporations from acquiring by purchase the property the sale of which may have been entrusted to them, and declaring them to be mandatories, has no reference to the pur- chase for himself, by an officer of corporation, of stock in the corporation owned by another. ^^ VIII. Stockholders. B. Stockholders' Meeting- and Formality of Action. — Interpretation of Resolution. — In interpreting the action of the stockholders in passing a resolution, the facts and circumstances surrounding them may legitimately be looked to. I''-'' C. Stockholders' Rights and Powers- — 1^. Control of Corporate Af- fairs — c. Rights of Minority or Single Stockholder — (2) Right of Action or Suit — (a) Representation by Corporation in Litigation. — A stockholder is rep- resented by the corporation in all actions against the corporation for corpo- rate liabilities. A stockholder is by the very law of corporate existence an in- tegral part of the corporation, and is bound by a judgment against it in respect of any matter within the scope of corporate powers.-*^ 205-2a. Pledgee by means of forged power of attorney. — Unit}- Banking, etc.. Co. V. Bettman, 217 U. S'. 127. 54 L. Ed. 695. 30 S. Ct. 488, affirming 159 Fed. 916. 87 C. C. A. 96, 205-4a. Purchase on margin through stockbroker. — Richardson ?■. vShaw, 209 U. S. 365, 52 L. Ed. 835, 28 S. Ct. 512. See ante, BROKERS, p. 212. Return of margined stock by stock- broker as preference in violation of Bank- ruptcy Act.— See ante, BANKRUPTCY, p. 168. Return of excess margins by stock- broker as preference forbidden by Bank- ruptcy Act.— See ante, BANKRUPTCY, p. 168. 205-5a. Stronp; z: Repide, 213 U. S. 419. 53 L. Ed. 853, 29 S. Ct. 521. 226-18a. Interpretation of resolution. — Zeckendorf z: Steinfeld. 225 U. S. 445, 56 L. Ed. 1156, 32 S. Ct. 728. In Canal Co. x: Hill, 15 \Yall. 94, 101. 21 L. Ed. 64, the court said: "This kind of evidence is especially pertinent when the inquiry is as to the subject matter of the ai-'reenient. To the same efi'ect. Reed z: Insurance Co., 95 U. S. 23, 31, 24 L. Ed. 348." Zeckendorf v. Steinfeld, 225 U. S. 445, 56 L. Ed. 1156, 32 S. Ct. 728. 229-28a. Bigelow z: Old Dominion, etc.. Smelting Co.. 225 U. S. Ill, 141. 56 L. Ed. 1009. 32 S. Ct. 641. In an action on a judgment in favor of a creditor of a corporation, by the cred- itor in another state against a stock- holder to subject him to a statutory lia- l)ility as a shareholder, there is a privity in interest and a representation in law of the stockholder by the corporation of which he is a member. The conclusive- ness of such a judgment as binding each stockholder does not, however, extend to matters in which the corporation can not be said to represent him. It is not con- clusive as against any individual sued as a stockholder that he is one, or if one, that he has not already discharged by payment to some other creditor of the corporation the full measure of his liability, or that he has not claims against the corporation, or judgments against it, which may in law or equity, as any debtor, whether by judg- ment or otherwise, set off against a claim or judgment, but in other respects it is an adjudication binding him. He is so far a part of the corporation that he is represented by it in the action against it. Bigelow z\ Old Dominion, etc.. Smelting Co.. 225 U. S. Ill, 141, 56 L. Ed. 1009, 32 S. Ct. 641. There is no parallel Ijetween the rela- tion of joint tort feasor and that of a stockholder to his corporation. In the latter case, the stockholder, by the or- ganic law of his corporation, is a member and represented by it so long as it keeps within its corporate powers. In the other instance one wrongdoer when sued does not' represent those not sued, although they had ro-ooerated in the wrong and were both liable. Bigelow z\ Old Domin- ion, etc.. Smelting Co.. 225 U. S. Ill, 142. 56 L. Ed. 1009, 32 S. Ct. 641. 113S Vol. XL STOCK AXD STOCKHOLDERS. 229-232 (b) Suits by Stockholders on Behalf of Corporation — aa. Right in General. — A shareholder may interpose and set the machinery of the law in motion for the protection of corporate rights, or the redress of corporate wrongs, when the corporate management, after proper demand, refuses or fails to act in the matter. This doctrine also obtains under the equity rule 94.3*"^ The directory of a corporation may be derelict and the interests of stockholders put in peril, and a case hence arises in which the right of protecting the cor- poration accrues to them.-'^^'* Restraining Payment of Unconstitutional Tax. — See note Zi. Diverse Citizenship of Corporate Defendant and Complaining Stock- holder. — The corporate defendant and the complaining stockholder will not be aligned on the same side of the controversy for the purpose of determining the jurisdiction of a federal circuit court, invoked on the ground of diverse citizenship, because it may be for the financial interests of the corporation that the suit shall succeed, where the corporation unites with the other defend- ant in resisting the claim of illegality and fraud, and both are alleged to have engaged in the same illegal and fraudulent conduct, and the injury is alleged to have been accomplished by their joint action.-^ '^'^ Necessity for Contest or Ultra Vires or Illegal Conduct. — See note 39. bb. Jurisdiction — Q^tli Equity Rule and Xecessary Allegations — ( aa) As to Stockholding. — Every bill brought by one or more stockholders in a corpora- 229-30a. Delaware, etc., Co. v. Albany, etc.. R. Co.. 213 U. S. 435, .53 L. Ed. 86:?. 29 S. Ct. 540. In Doctor v. Harrington, 196 U. S. 579, 49 L. Ed. 606, 25 S. Ct. 35, the court said: "The ultimate interest of the corporation made defendant may be the same as that of the stockholder made plaintiff, but the corporation maj' be imder a control an- tagonistic to him, and made to act in a way detrimental to his rights. In othet words, his interests, and the interests of the corporation, may be made subservient to some illegal purpose." Venner 7'. Great Northern R. Co., 209 U. S. 24, 52 L. Ed. 666, 28 S. Ct. 328. As a typical case of the kind "which enforces the doctrine that the rights of the corporation must be asserted through the corporation. Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827, is cited." Dela- ware, etc.. Co. V. Albany, etc., R. Co., 213 U. S. 435. 53 L. Ed. 862, 29 S. Ct. 540. Qujere, whether suits are ever justified by de^nand on the directors alone, or whether stockholders have the power to compel directors to institute suits to which the directors are opposed? Dela- ware, etc., Co. 7\ Albany, etc.. R. Co.. 213 U- S. 435. 53 L. Ed. 862. 29 S. Ct. 540. 230-31a. Delaware, etc.. Co. v. Albany, etc.. R. Co., 213 U. S. 435. 53 L. Ed. 862, :29 S. Ct. 540. 230-33. See Delaware, etc.. Co. i\ Albany, etc., R. Co.. 213 U. S. 435. 53 E. Ed. Sti2. 29 S. Ct. 540. 231-38a. Diverse citizenship of corpo- rate defendant and complaining stock- holder. — Venner <■. Great Xnrthern R. Co.. 209 U. ? 24. 52 E. Ed. dOr,. 28 S. Ct. 328 232-39. Necessity for contest between stockholder and corporation and illegal or ultra vires conduct. — "Hawes v. Oak- land, 104 U. S. 450, 26 L. Ed. 827, is cited. In that case Dodge v. Woolsey, 18 How. 331. 15 L. Ed. 401. was declared to be the leading case on the subject in this coun- try, and, examining the latter case, it was said that it did not establish, nor was it intended to establish, a doctrine different in any material respect from that found in the other American cases and the Eng- lish cases. And the doctrine was said to be that, to enable a stockholder in a cor- poration to sustain in a court of equity a suit founded on a right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff, there must exist as a foundation for the suit soine action or threatened ac- tion of the managing board of directors which is beyond their authority; a fraud- ulent transaction, completed or contem- plated, which will result in serious injury to the corporation or stockholders; where the board of directors, or a majority of them, are acting for their own interest in a manner destructive of the corporation itself or of the rights of other stockhold- ers; or where a majority of the stockhold- ers themselves are oppressively and ille- gally pursiiinG; a course inimical to the cor- poration or to the rights of the other stockholders. The court expressed the possibility that other cases might arise, but said 'the foregoing ma}^ be regarded as an outline of the principles which gov- ern tliis class of cases.'" Delaware, etc.. Co :■. Albany, etc., R. Co.. 213 U. S. 43.5, 53 E Ed. Sfi2. 29 S. Ct. 540. ' 1 :',9 233 STOCK AND STOCKHOLDERS. Vol. XL tion, against corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintifif was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since, by operation of law. Such is the 94th equity rule. It had been held before the rule was adopted, that when it was alleged and not denied that the com- plainant was the owner of stock in his own right it was sufficient.^ -^ Neither the rule nor the decision from which it was derived deals with the question of the jurisdiction of the courts, but only prescribes the manner in which the jurisdiction shall be exercised.'*-^'' The failure of a complaining stockholder, in an action by him against the corporation, to bring his case within the terms of equity rule 94, while justifying the dismissal of the bill for want of equity, does not defeat the jurisdiction of the federal circuit court over the suit, if the requisite diversity of citizenship exists, the jurisdictional amount is in- volved, and defendant is properly served with process within the district."*-'*' (cc) Avenncnts as to Efforts to Secure Action by Cor[>oration. — Under rule 94 the plaintiff must set forth with particularity his efforts to secure action on the part of the managing directors or trustees of the corporation of which he is a member, and, if necessary, of the shareholders, and the causes of his failure to obtain such action."*''"^ Rule 94 expresses primarily the conditions 233-42a. Ninety-fourth equity rule. — "The rule simply expresses the principles which this court, after a review of the au- thorities, had declared in Hawes v. Oak- land, 104 U. S. 450, 26 L. Ed. 827." Ven- ner v. Great Northern R. Co., 209 U. S. 24. 52 L. Ed. 666, 28 S. Ct. .328. "The purpose of rule No. 94 hardly needs explanation. It is intended to se- cure the federal courts from imposition upon their jurisdiction, and recognizes the right of the corporate directory to corporate control; in other words, to make the corporation paramount, even when its rights are to be protected or sought through litigation. Cases in this court have indicated such right." Dela- ware, etc., Co. V. Albany, etc., R. Co., 213 U. S. 4,35, 53 L. Ed. 862, 29 S. Ct. 540. 233-43a. Venner v. Great Northern R. Co., 209 U. S. 24, 52 L. Ed. 666, 28 S. Ct 328. 233-43b. Venner v. Great Northern R. Co., 209 U. S. 24, 52 L. Ed. 666, 28 S. Ct. 328. "If a controversy of this general nature is brought in the circuit court and the necessary diversity of citizenship exists, but, upon the pleadings or the proof, it appears that the plaintiff has not shown a case within the decision in Hawes z'. Oakland, or the rule of court declaratory of that decision, the 1)ill should be dis- missed for want of equity, and not for want of jurisdiction. The dismissal of the bill would not be the denial but the assertion and exercise of jurisdiction. So it was that in Hawes v. Oakland the de- murrer was sustained and the bill dis- missed, not for want of jurisdiction, but, in the words of the court (p. 462) 'because the appellant shows no standing in a court of equity, no right in himself to prosecute this suit.' The same order was made in Huntington v. Palmer, 104 U. S. 482, 26 L. Ed. 833, and Quincy v. Steel, 120 U. S. 241, 30 L. Ed. 624. 7 S. Ct. 520. This very question was considered by the court in Illinois Cent. R. Co. v. Adams, 180 U. S. 28, 45 L. Ed. 410, 21 S. Ct. 253." Venner v. Great Northern R. Co., 209 U. S. 24. 52 L. Ed. 666, 28 S. Ct. 328. 233-46a. Delaware, etc.. Co. v. Albany, etc., R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 S. Ct. 540. The object of the suit in Corbus v. Alaska Treadwell Gold Min. Co., 187 U. S. 455, 47 L. Ed. 256, 23 S. Ct. 157, "was to enjoin the board of directors of the corporation from paying a license tax levied upon the corporation tmder the provisions of an act of congress. Corbus, the coinplainant in the suit, was a stock- holder of the corporation, and alleged, as the reason of the suit by him, that he was unable to request the directors of the company to refuse to pay the tax or ap- ply for the license required by reason of their great distance from him; but that he had made such request of the officers of the company residing in Alaska, and that they had refused to comply with the request. Of this allegation the court said tiiat it showed no compliance with rule 94, and that complainant simply relied on the distance of the directors from where he resided as an excuse for not applying to them. 'We are of opinion,' it was said, 'that the excuse is not sufficient. He should, at least, have shown some effort. If he had made an effort and obtained no satisfactorj' result, either by reason of the distance of the directors or by their dila- toriness or unwillingness to act, a dififer- 1140 A^ol. XL STOCK AND STOCKHOLDERS. 233 which must precede the exercise of the right of a stockholder to protect the corporation by suit, but emergencies may arise in which the antagonism be- tween the directory and the corporate interest may be unmistakable, and the recjuirements of the rule may be dispensed with ; or, it is more accurate to say, do not apply. ^'''' Rule 94 is intended to have practical operation, and to ent case would have been presented; but to do nothing is not sufficient." " Dela- ware, etc., Co. z\ Albanj', etc.. R. Co., 2t3 U. S. 435, 53 L. Ed. 863, 29 S. Ct. 540. Injunction against compliance with statute regulating rates. — A bill by stock- holders of a railroad company to enjoin it from compljnng with a statute relating to rates sufficiently sets out the reason for their commencing it and making the company a party defendant by alleging that they had demanded of the corporate officers that they refuse obedience to the statute, and should institute suits to pre- vent its enforcement, but that the com- pany and its officers had positively re- fused to do so, not because they consid- ered the rates just, or that they would not be confiscatory, but because of the severity of the penalties provided for vio- lation of the statute, to the ruinous con- sequences of which they would not subject theinselves, and which no action by them- selves, their stockholders, or directors could avoid. Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441. 233-46b. Delaware, etc., Co. v. Albany, etc., R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 S. Ct. 540. "A case * * * where the circumstances take the cases out of the rule, is Doctor V. Harrington, 196 U. S. 579, 49 L. Ed. 606, 25 S. Ct. 35. The suit was brought by Doctor and others as stockholders of a corporation, called the Sal Sayles Com- pany to set aside a judgment obtained by the Harringtons against that company. The bill alleged that tlie suit was not col- lusive; that complainants were unable to obtain redress from the company or "at the hands' of its stockholders. It further alleged that the board of directors of the corporation was 'under the absolute con- trol and domination of the defendant, John J. Harrington, and that said Harrington, b}- reason of the possession of a majority of the capital stock of said corporation,' likewise controlled 'the action of the stockholders.' It was further alleged that he refused to give any information with regard thereto, and declined to redress the wrongs of which complaint was made, or give complainants any opportunity to lay before the board of directors or the stockholders of the company the facts set forth. It will be observed, therefore, that there was no compliance with the require- ments of rule 94, as expressed in its letter. The efforts that were made to secure the action of the managing directors or trust- ees were not "set forth with particularity.' Nothing was alleged but the domination of John J. Harrington and his control of the directors. What he did, in what way he exerted control, was not alleged. In other words, the bill seemed to show a case, not of compliance with the require- ments of rule 94, but circumstances which excused from such compliance. Coming to consider the effect of those allegations, we said that rule 94 contemplates that there maj^ be, and provides for, a suit by the stockholders in a corporation, founded on rights which may be properly asserted by the corporation. And we further said that 'the ultimate interest of the corpora- tion made defendant may be the same as that of the stockholder made plaintiff, but the corporation may be under a con- trol antagonistic to him, and made to act in any way detrimental to his interest. In other words, his interests and the in- terests of the corporation may be sub- servient to some illegal purpose.' And we decided that these principles were sat- isfied by the allegations of the bill, and that such antagonism existed between the complainants in the suit and the directors of the corporation tliat they would 'suffer irremediable loss if not permitted to sue.' In other words, the complainants were in such a situation by reason of the power which Harrington possessed over those who managed the corporation, directors and stockholders, that appeals to them for action would have l^een futile. Prior cases were considered, including Dodge 7'. Woolsey and Hawes f. Oakland, and the conclusion reached was pronounced to be in accordance with their doctrine." Dela- ware, etc., Co. V. Albany, etc., R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 S. Ct. 540. Bill for accounting against corporation and its lessee. — Effort to secure action by a corporation, its directors or sharehold- ers, need not be made and set forth with the particularity required by equity rule 94, in order to sustain a bill filed by share- holders against the corporation and its corporate lessee to obtain an accounting for unpaid rentals, where a majority of the directorate of the former corporation, to whose interest it was to assert the right to payment and demand it, were, and had been for many years, officers, di- rectors, and employees of the other com- pany, to whose interest it was to deny in- debtedness and resist payment, and the latter company and its directors and offi- cers controlled a working majority of the stock vote of the other corporation. Del- 141 233-248 STOCK AND STOCKHOLDERS. Vol. XI. have that it must, as to its requirements, be given such play as to fit the con- ditions of different cases."* •^'^ (ee) 'Jurisdiction of Federal Courts. — If such a controversy arises and the other conditions of jurisdiction exist, it can be litigated in the federal courts.^"^"" D. Stockholders' Duties and Liabilities — 1-. Statutory and Extraor- dinary Liability — a. Nature and Terms — (1) Statutory and Contractual. — This liability is not to the corporation, but to the creditors collectively; is not penal, but contractual;'^'' is not joint, but several; and the mode and means of its enforcement are subject to legislative regulation.'''*'' (5) Extent. — The extent of the liability is ordinarily the par value of the stock held or owned by the shareholder.^"*-^ The state constitution, statutes and decisions must be looked to in order to determine the nature and extent of the liability in question.^-*" d. Who Liable as Stockholders — (1) Nonresident Stockholder. — See post, "Where Enforcible," VIII, D, 4,_f, (6). f. Enforcement — (1) Regulations Generally and Means of Enforcement — (c) Constitutional Provisions as Self -Executing. — The provision is self-execu- (6) Where Enforcible. — Enforcement by Receiver. — If a receiver can not maintain an action in the courts of his own state to enforce the stockholders" statutory liability, because its statute provides another in the name of a cred- itor, or permits it only after the performance of a condition precedent which he has not performed, he can not, although appointed in the state, maintain such action in a foreign jurisdiction, and comity can not avail in such case.-^^ aware, etc., Co. v. Albany, etc., R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 S. Ct. 540. It may be well doubted whether the director of the lessor company, being di- rectors of the lessee company, and who, either from an apathy that endured through many years, could disern no right in that company to assert, or, through conviction of the absence of right, were the best agents to begin or conduct a litigation of such right. It was certainly natural enough that a stock- holder should seek more earnest repre- sentatives, and consider that the direct- ors "occupied," to use the language of Dodge V. Woolsey, ''antagonistic grounds in respect to the controversy" as to him. The attitude of the directors need not be sinister. It may be sincere. It was so in Chicago v. Mills, 204 U. S. 321, 51 L. Ed. 504, 27 S. Ct. 286, and Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441, and other cases. In this case it was certainly determined. It continued until after this suit was brought. Both the lessee company and the lessor com- pany, then under "the administration of the lessee company," to quote from the circuit court of appeals, demurred to the y,\\\. Delaware, etc., Co. v. Albany, etc., R. Co., 213 U. S. 435, 53 L. Ed. 862, 29 S. Ct. 540. 233-460. Delaware, etc., Co. v. .A.lbany, etc.. R. Co., 213 U. vS. 435, 53 L. Ed. 862, 29 S. Ct. 540. 234-47a. Venner v. Great Northern R. Co., 209 U. S. 24, 52 L. Ed. 666, 28 S. Ct. 328. See ante, "Right in General," VIII, C, 4, c, (2), (b), aa. 239-77a. Statutory and contractual — Not penal. — Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. 239-78a. Converse v. Hamilto«i, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. 240-82a. Extent. — Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. Sec. 3, art. 10, Minn. Const. 240-82b. Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. 244-99a. Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. 248-25a. Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. "Finney v. Guy, 189 U. S. 335, 47 L. Ed. 839, 28 S. Ct. 558, * * * involved the right of a Minnesota receiver and of the creditors of a Minnesota corporation to sue a stockholder in Wisconsin prior to the enactment of chapter 272, and while the earlier statute, before mentioned, pro- vided an exclusive remedy through a single suit in equity in a Minnesota court. That remedy having been exhausted, the receiver and the creditors sought, by an ancillary suit in Wisconsin, to enforce the liability of a stockholder who resided in that state and was not a party Xo the suit in Minnesota. The supreme court of Wisconsin, treating the right to main- tain the suit in that state as depending upon comity only, ruled that it ought not to be entertained. The case was then 1142 Vol. XI. STOCK AND STOCKHOLDERS. 248 Where the statute confers the right upon the receiver, as a quasi assignee and representative of the creditor, and as such vested with the authority to main- tain an action, the receiver may sue in a foreign jurisdiction.-"'' And the re- brought here, it being claimed that full faith and credit had not been accorded to the laws of Minnesota and the proceed- ings in the suit in that state. This claim was grounded upon a contention that the first decisions in Minnesota, holding that the remedy provided by the earlier stat- ute was exclusive, that a receiver could not sue thereunder, and that the rights of creditors against stockholders must be worked out in the single suit in the home court, had been overruled by later deci- sions giving, as was alleged, a dififerent interpretation to that statute. The con- tention was ftiUy considered by this court, the cases relied t:pon being care- fully reviewed, and the conclusion was reached that 'the law of Minnesota still remains upon this particular matter as stated in the former cases, which have not been overruled.' The claim under the full faith and credit clause was ac- cordingly held untenable, and it was then said: 'Whether, aside from the federal consideration just discussed, the Wiscon- sin court should have permitted this ac- tion to be maintained, because of the principle of comity between the states, is a question exclusively for the courts of that state to decide.' " Converse z'. Ham- ilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. 248-26a. Converse z: Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. C*. 415. Under chapter 272, Laws of Minn, of 1899, and §§ 3184-3190, Revised Laws of 1905, the receiver is not an ordinary chan- cery receiver or arm of the court appoint- ing him, but a quasi assignee and repre- sentative of the creditors; and when the order levying the assessment is made he becomes invested with the creditors' rights of action against the stockholders, and with full authority to enforce the same in any court of competent jurisdic- tion in the state or elsewhere. Converse z: Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415, following Bernheiiner z'. Converse. 206 U. S. 516, 524, 51 L. Ed. 1163, 27 S. Ct. 755. "The constitutional validity of chapter 272 has been sustained by the supreme court of the state, as also by this court; and this because (1) the statute is but a reasonable regulation of the mode and means of enforcing the double liability assumed by those who become stockhold- ers in a Minnesota corporation; (2) while the order levying the assessment is made conclusive, as against all stockholders, of all matters relating to the amount and propriety of the assessment and the ne- cessity therefor, one against whom it is sought to be enforced is not precluded from showing that he is not a stock- holder, or is not the holder of as many shares as is alleged, or has a claim against ihe corporation which, in law or equity, he is entitled to set off against the assess- ment, or has any other defense personal lo himself, and (3) while the order is made conclusive as against a stockholder, even although he may not have been a party to the suit in which it was made, and may not have been notified that an assessment was contemplated, this is not i'. tenable objection, for the order is not in the nature of a personal judgment against the stockholder, and as to him is amply sustained by the presence in that suit of the corporation, considering his relation to it and his contractual obliga- tion in respect of its debts. Straw & E. Mfg. Co. V. L. D. Kilbourne Boot & Shoe Co. supra; London & N. W. American Mortg. Co. V. St. Paul Park Improv. Co., 84 Minn. 144, 86 N. W. 872; Bernheimer :■. Converse, 206 U. S. 516, 51 L. Ed. 1163, 27 S. Ct. 755." Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. "In Bernheimer v. Converse, 206 U. S. 516, 51 L. Ed. 1163, 27 S. Ct. 755, the pres- ent reeceiver sought, by reason of the proceedings in the Minnesota court under chapter 272, to maintain an action in New York against a stockholder residing in that state, to enforce one of the assess- ments before mentioned, and this court sustained the action, saying (p. 534) : 'It is objected that the receiver can not bring this action, and Booth v. Clark, 17 How. 321, 15 L. Ed. 164; Hale v. AUinson. 188 U. S. 56, 47 L. Ed. 380, 23 S. Ct. 244; and Great Western Min., etc., Co. v. Har- ris, 198 U. S. 561, 49 L. Ed. 1163, 25 S. Ct. 770, are cited and relied upon. But in each and all of these cases it was held chat a chancery receiver, having no other authority than that which would arise froni his appointment as such, could not maintain an action in another jurisdiction. In this case the statute confers the right upon the receiver, as a quasi assignee and representative of the creditors, and as such vested with the authority to main- tain an action. In such case we think the receiver may sue in a foreign jurisdiction. Relfe V. Rundle, 103 U. S. 222, 226. 26 L. Ed. 337; Howarth v. Lombard, 175 Mass. 570, 49 L. R. A. 301, 56 N. E. 888; Howarth :■. Angle. 162 N. Y. 179, 182, 47 L. R. A. 7 25, 26 N. E. 489.'" Converse 7^. Hamil- ton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. ■'And in Converse z'. Minnesota Thresher Mfg. Co.. 212 U. S. 567, 53 L. Ed. 654, 29 S. Ct. 691, where, in a similar action, the supreme court of errors of Connecticut 1 1 43 248 STOCK AND STOCKHOLDERS. \'ol. XL fusal of the courts of a foreign state to permit an action by such receiver to enforce such double liabiHty denies full faith and credit to the laws and ju- dicial proceedings in that state upon which the receiver's title, authority and ri^ht to relief are grounded.-''" The state constitution, statutes and decisions had given judgment against the receiver, this court reversed the judgment on the authority of Bernheimer v. Converse, supra." Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. 248-26b. Full faith and credit to laws and judicial proceeding of receiv- er's state. — The refusal of the Wisconsin courts to permit an action to enforce the double liability of the stockholders in an insolvent Alinnesota corporation to be maintained by the receiver of such cor- poration, who, by the proceedings in a sequestration suit brought conformably to Minn. Laws 1899, chap. 272, became quasi assignee and representative of the creditors, and charged with the enforce- ment of the stockholders" liability in the Minnesota courts and elsewhere, denies the constitutional full faith and credit to the lav\'S of ^Minnesota and the judicial proceedings in that state upon which the receiver's title, authority, and right to relief were grounded, and by which the stockholders, even though not made par- ties to the sequestration suit, and not notified otherwise than by publication or by mail of the applications for the orders levying the assessments, were bound. Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. So when the receiver invoked the aid of the Wisconsin court "the case pre- tended was, in substance, that of a trus- tee, clothed with adequate title for the occasion, seeking to enforce, for the benefit of Tiis sectuis que trustent, a right of action, transitory in character, against one who was liable contractually and severally, if at all. The receivers right to maintain the actions in that court was denied in the belief that it turned upon a question of comity only, unaf- fected by the full faith and credit clause of the constitution of the United States, and this view of it was regarded as sus- tained by the decision of this court in Finney v. Guy, 189 U. S. 335, 47 L. Ed. 839, 28 S. Ct. 558. But that case is ob- viously distinguishable from those now before us." Converse v. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. "We perceive nothing in the decision in that case, Finney v. Guy, 189 U. S. 335, 47 L. Ed. 839, 28 S. Ct. 558, which makes for the conclusion that when the repre- sentative character, title, and duties of a receiver have been established bj' pro- ceedings in a IMinnesota court conform- ably to the altogether different provisions of the later statute embodied in chapter 272, his right to enforce in the courts of another state the assessments judicially levied in ^Minnesota depends upon comity, unaffected by the full faith and credit clause. Indeed, the implication of the decision is to the contrary. We say this,, first, because, had it been thought that the controlling question was one of comity onlj% there would have been no occasion to consider what effect was ac- corded in Minnesota to the earlier stat- ute and to the proceedings thereunder; and, second, because especial care was taken to explain that the case in band was not controlled by the decision in. Hancock Xat. Bank r. Farnum, 176 U. S. 640, 44 L. Ed. 619, 20 S. Ct. 506." Con- verse f. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. "Hancock Nat. Bank z\ Farnum, 176 U. S. 640, 44 L. Ed. 619, 20 S. Ct. 506, * '■= * was an action in a Rhode Island court by a creditor of a Kansas corporation against one of its stockholders, to en- force the contractual double liability of the latter. The creditor had recovered against the corporation in a court in Kansas a judgment which, according to the laws of that state, invested the cred- itor with a cause of action against the stockholder which could be asserted in any court of competent jurisdiction. The supreme court of Rhode Island, treating the right to maintain the action in that state against the stockholder as de- pendent upon comity only, and finding that the right with which the creditor was invested under the lav/ of Kanses was unlike that conferred by the law of Rhode Island in like situations, ruled that the action could not be maintained in the courts of that state. 20 R. I. 466, 40 Atl. 341. But when the case came here, it was held that full faith and credit had not been given to the Kansas judgment upon which the creditor relied, and the judgment of the supreme court of Rhode Island was accordingly reversed, it being said in that connection: 'The question to be determined in this case was not vvdiat credit and effect are given in an ac- tion against a stockholder in the courts of Rhode Island to a judgment in those courts against the corporation of which he is a stockholder, but what credit and effect are given in the courts of Kansas in a like action to a similar judgment there rendered. Thus and thus only can the full faith and credit prescribed by the constitution of the United States and the act of congress be secured.' '' Converse ■V. Hamilton, 224 U. S. 243, 56 L. Ed. 749, 32 S. Ct. 415. "True, the full faith and credit clause of the constitution is not without well- 1144 Vol. XI. STREET RAIUVAYS. 248 must be looked to in order to determine the effect given in that state to the laws and judicial proceedings therein looking to the enforcement of the stockhold- ers' statutory liability.-"''" STOCK GRAZING.— See ante, Animals, p. 27. STOCKHOLDERS.— See ante, Banks and Banking, p. 184; Stock and Stock HoLDKRs, p. 1135. STOCKYARDS.— See the title Stockyards, vol. 11. p. 251. and references there given. STONE LAND.— See ante, Punuc Lands, p. 1012. STOPPAGE IN TRANSIT.— See ante. Carriers, p. 216. STREAMS.— See ante. Boundaries, p. 206; Navigable Waters, p. 914; post, Waters and Watercourses. STREET RAILWAYS. I. Franchise for Use and Occupation of Street, 1145. B. Grant of Franchise, 1145. 4. Duration of Franchise, 1145. g. As Aft'ecting the \'alidity of the Franchise, 1145. 6. Construction of Grant. 1146. IV. Control and Regulation, 1146. A. Power to Control and Regulate, 1146. D. Regulation of Time of Running Cars. 1146. VI. Injuries and Liability Therefor, 1146. VII. Rights Acquired by Contract, 1147. CROSS REFERENCES. See the title Street Railways, vol. 11, p. 2^2, and references there given. In addition, see ante, Courts, p. 398. I. Franchise for Use and Occupation of Street. B. Grant of Franchise — 1-. Duration of Franchise — g. As Affecting the J'alidity of the Franchise.^A municipal ordinance granting a franchise to a recognized exceptions, as is pointed out corporations of its creation, and the in Huntington z\ Attrill, 146 U. S. 657, mode and means of enforcing them, is 36 L. Ed. 1123. 13 S. Ct. 224; Andrews z\ apart from the question under considera- Andrews, 188 U. S. 14, 47 L. Ed. 366, 23 tion." Converse v. Hamilton, 224 U. S. S. Ct. 237, and National Exch. Bank z: 243. .56 L. Ed. 749, 32 S. Ct. 415. Wiley, 195 U. S. 257, 49 L. Ed. 184, 25 "Besides, it is not questioned that the S. Ct. 70; but the laws and proceedings Wisconsin court in which the receiver reHed upon here come within the gen- sought to enforce the causes of action eral rule which that clause estabHshes, with which he had become invested un- and not within any exception. Thus, the der the laws and proceedings relied upon liability to which thej' relate is contrac- was possessed of jurisdiction which was tual, not penal. The proceedings were fully adequate to the occasion. His right had with adequate jurisdiction to make to resort to that court was not denied by them binding upon the stockholders in reason of any jurisdictional impediment, the particulars before named. The sub- but because the supreme court of the ject to which chapter 272 is addressed is state v.'as of the opinion that, as to such peculiarly within the regulatory power cause of action, the courts of that state of the state of ^linnesota: so much so "could, if they chose, close their doors that no other state properly can be said and refuse to entertain the same.' " Con- to have any public policy thereon. And verse f. Hamilton. 224 U. S. 243. 56 L.' what the law of Wisconsin may be re- Ed. 749. 32 S. Ct. 415. specting the relative rights and obliga- 248-26c. Converse z: Hamihon. 224 U. tions of creditors and stockholders of S. 243. 56 L. Ed. 749. 32 S. Ct. 415. 1145 2 55-2 58 STREET RAILWAYS. \o\. XI. street railway company is not invalid because the term of such franch.ise may extend beyond the limit of the corporate life of such company. ^•'''' 6. Construction of Grant. — A street railway company whose charter sub- jects it to "all the duties, liabilities, and restrictions set forth in all general laws now or hereafter in force relating to street railway companies," is bound by the requirement of a statute previously enacted, that street railway companies shall transport school children at a reduced rate, although such statute may be uncon- stitutional as to already existing corporations.^''' Charter — Ordinance Granting Terms. — Where an ordinance provided that the right and privilege to construct and operate a railway line subject to the terms, conditions and forfeitures named in the ordinance is granted to a street railway company "during the term of its charter," the charter referred to in the ordinance could not have been anything else than the certificate of the corpora- tion required by law. Of this the state was bound to take notice; and when it granted the privileges "during the term of its charter," it could have meant nothing less than during the period named in the charter.-''' IV. Control and Regulation. A. Power to Control and Regulate. — The business conducted by a street railway company is of that class so affected by a public interest that it is subject, within constitutional limits, to the governmental power of regulation.^"'' This power is legislative in its character, and may be exercised directly by the legis- lature itself. But the legislature may delegate to an administrative body the execution in detail of the legislative power of regulation.^"'' D. Regulation of Time of Running Cars. — The power of regulating the business of a street railway company may be exercised to control the time of the running of cars.^'^*' But this power is legislative in its character and can not be exercised by the courts, where the legislature has not delegated it to them.^*"' VI. Injuries and Liability Therefor. Whether it is negligence to run a street car at full speed past a usual stopping place when persons can plainly be seen standing upon the platform between the inner rails, awaiting a car approaching from the opposite direction, is a question for the jury, where the street car company had sanctioned such a practice on the part of intending passengers, and the space between the rails, while wide enough to enable a person standing in the center to escape injury, left but a narrow mar- 255-15a. Term of franchise extending CONSTITUTIONAL LAW, p. 264. beyond corporate life of company. — Min- 258-36a. Regulation of time of running neapolis z\ JNIinneapolis St. R. Co., 215 cars. — Honoluhi, etc.. Land Co. c'. Ha- U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118, wail, 211 U. S. 282, 53 L. Ed. 186, 29 S. modifying 155 Fed. Rep. 989. Ct. 55. 257-27a. Company bound by require- 258-36b. Exercise by courts. — Hono- ment of a statute previously enacted. — lulu, etc.. Land Co. v. Hawaii, 211 U. S. Interstate, etc., St. R. Co. v. Massa- 282, 53 L. Ed. 186, 29 S. Ct. 55. chusetts, 207 U. S. 79, 52 L. Ed. Ill, 28 The enforcement of the continuance by S. Ct. 26, affirming 187 Mass. 436, "73 N. an Hawaiian street railway company of a E. 530. ten minute schedule on certain of its 257-27b. Charter — Ordinance construed. lines, upon the ground that the public — Minneapolis v. Minneapolis St. R. Co.. convenience demands such a schedule, is 215 U. S. 417, 54 L. Ed. 259. 30 S. Ct. 118. not within the limits of the judicial power, 257-30a. Subject to governmental power and is totally inconsistent with the of regulation. — Honolulu, etc.. Land Co. power to regulate the m.anagement of the V. Hawaii, 211 U. S. 282, 53 L. Ed. 186, street railway in this respect, which is 29 S. Ct. 55. ultimately vested by Haw. Rev. Laws, 257-30b. Power of regulation is legis- § 843, and Session Laws 1905, act No. 78, lative but may be delegated. — Honolulu, hi the executive authorities. Honolulu, etc.. Land Co. v. Hawaii, 211 U. S. 282, etc.. Land Co. v. Hawaii, 2J1 U. S. 282, 53 L. Ed. 186, 29 S. Ct. 55. See ante, 53 L. Ed. 186, 29 S. Ct. 55. 1146 Vol. XL STREET RAILU AYS. 258 gin of safety.^ I'' A person is not, as a matter of law, guilty of such contributory negligence in following the customary practice sanctioned by a street car com- pany of standing upon the platform between the two inner rails at a usual stop- ping place, awaiting an approaching car, as precludes a recovery for injuries 3us- tained from being struck by a car which ran by this stopping place on the other track at full speed, where the space between the rails, though leaving but a nar- row margin of safety, was wide enough to permit a person standing directly in the center to escape injury.^ ^'' VII. Rights Acquired by Contract. The contract right of a street railway company to charge the rate of fare per- mitted by a municipal ordinance vests in such company, secure against impairment by subsequent legislation, when ratified by a valid legislative act, notwith- standing the want of power of the city to adopt the ordinance.^ ^"^ Existing con- tract rights of a street railway company to charge five-cent fares, secured against impairment by subsequent legislation, were not abandoned by accepting an ordi- nance authorizing a change of motive power from horse power to electricity, although the original franchise named only animal or pneumatic power, where it also provided that no propelling power should be used after it should be proved a public nuisance, and that the company might connect with other street railways upon which power was used similar to that authorized to be used by street rail- ways by the city council, but that steam power cars, such as were in common use, should not be used upon the city tracks unless specially authorized.^ ^"^ The ac- ceptance of a municipal ordinance requiring a street railway company to issue transfers does not abrogate an existing contract right secured against impairment by subsequent legislation to charge a five-cent fare for one continuous passage not exceeding three miles in length.^ ^"^ An inviolable contract between a munici- pality and street railway companies which will prevent the exaction of a license tax under an acknowledged power of the municipality is not created by ordi- nances passed in the exercise of authority to grant the use of the streets, under which the companies have agreed to pay certain sums for the use of such streets for a given period, where such ordinances do not expressly relinquish the right to exact license fees or taxes.^^^ 258-41a. Negligence — Question for the to be for that term, and has continued to jury. — Chunn v. City, etc., Railway, 207 act as a corporation since the expiration U. S. 302, 52 L. Ed. 219, 28 S. Ct. 6.3. of the 30 years which would have been 258-41b. Facts not constituting con- its corporate hfe, if ori^anized. as the tributory negligence as a matter of law. municipality contends it should have — Chunn v. City, etc., Railway, 207 U. been, under title 2 of such chapter. De- S. 302, .'52 L. Ed. 219, 28 S. Ct. 63. See cree, Minneapolis St. Rv. Co. v. City of ante. NEGLIGENCE, p. 920. Minneapolis (Minn. 1907), 155 F. 989, 258-41C. Contract right to charge rate modified Minneapolis v. Minneapolis St. of fare permitted by municipal ordinance. R. Co., 215 U. S. 417, 54 L. Ed. 259, 30 — Minneapolis f. Minneapolis St. R. Co., S. Ct. 118. 215 U. S. 417, 54 L. Ed. 259, 30 S. Ct. 118. 258-41d. Acceptance of ordinance.— The contract right of a street railway Minneapolis v. Minneapolis St. R. Co., company to charge five-cent fares, glS U. S. 417, 54 L. E<1. 259, 30 S. Ct. 118. secured against impairment "during the „cq ...^ ,4-. ,• „, T.r; ^ ..^1;^ e* r •? 1 , f, 1 ■ • I 258-41e. Minneapohs v. Minneapolis bt. term of its charter by a municipal or- t> n mr tt c ^i~ kit -ca okh on J- 4.-C 1 u A 1 -\r- i\r u < R. Co., 215 U. b. 41/, 54 L,. Ed. 259, 30 dinance ratified by Act Minn. March 4, ^^ ^. ' .„ ,., . ' _, t^^, t>„_ ' _„ 1879 (Sp. Laws 1879, p. 410, c. 299), ex- ^- ^t- 118, modifying 155 Fed. Rep. 989. tends for 50 years, where the companv 258-41f. Ordmances not creatmg m- undertook to organize for that period. violable contract preventing exaction of under Gen. St. Minn. 1866, c. 34, tits. 1, a license tax.— St. Louis v. United R. Co.. 2. §§ 1-53. and in its certificate of incor- ^10 U. S. 266, 52 L. Ed. 1054. 28 S. Ct. poration stated that its corporate life was '"''^O. 1 147 278-279 SUBROGATION. Vol. XI. STREETS AND HIGHWAYS.— See the title Streets and Highways, vol. II, p. 259, and references there given. And as to the right to use the streets of a municipality for telephone purposes, see post, Telegraphs and Tele- phones. STRIKING OUT EVIDENCE.— See ante. Evidence, p. 558. SUBLETTING.— See ante, Landlord and Tenant, p. 820. SUBMISSION OF CONTROVERSY.— See ante. Agreed Case, p. 17. SUBMISSION TO ARBITRATION.— See ante. Arbitration and Award, p. 148. SUBORNATION OF PERJURY.— See ante, Perjury, p. 948; Public Lands, p. 1012. SUBPOENA. — See post. Summons and Process; Witnesses. SUBPCENA DUCES TECUM.— See ante. Production oe Documents, p 1008. SUBROGATION. III. Subrogation of Person Paying Debt Due Third Party, 1148. A. In General. 1148. B. Sureties, Guarantors, Insurers, Bail, etc., 1148. CROSS REFERENCES. See the title Subrogation, vol. 11, p. 276, and references there given. III. Subrogation of Person Paying Debt Due Third Party. A. In General. — See note 10. B. Sureties, Guarantors, Insurers, Bail, etc. — Priority as to Assign- ment of Surety on Government Contract. — The right of a surety for a government contractor to be subrogated to the contractor's right to the reserve fund in the hands of the government, representing work done prior to an assign- ment of the contract, ^^"^ and to sums due from the government under the con- tract,^-'' is superior to rights of assignees. 278-10. Volunteer. — Henningsen v. cock an4) In General, 1160. d. Retrospective Taxation, 1160. 4. Territorial Limitations of Power, 1160. a. Situs of Property, 1160. b. Effect of Compact between States as to Jurisdiction over Waters, 1160. c. Reservation of Porto Rico Harbor Areas and Waters in Fa- vor of the L'nited States, 1161. D. Of the States, 1161. 1. In General, 1161. b. Nature and Extent, 1161. E. Of Municipal Corporations, 1161. 1. In General, 1161. , h. Misappropriation of Special Tax, 1161. IV. Subjects of Taxation, 1161. A. General Principles, 1161. 2. Jurisdiction and Situs, 1161. a. Necessity for Jurisdiction, 1161. (2) Nonresidency of Owner Does Not Prevent Taxation, 1161. b. Situs as Determining Taxability, 1161. (1) Of Real Estate, 1161. (2) Of Personal Property, 1161. (a) In General, 1161. (b) Of Tangible Personal Property, 1162. aa. In General, 1162. dd. Ships and Shipping, 1162. (c) Of Intangible Personal Property, 1165. aa. In General — Debts and Credits, 1165. cc. Corporate Bonds Held Out of State, 1168. g,g. Credits of Foreign Insurance Company, 1168. 5. Application of Doctrine of Res Judicata, 1168. C. Corporations and Corporate Stock, 1168. 3. Particular Kinds of Corporations, 1168. a. Banks and Bank Stock, 1168. (1) Power to Tax, 1168. (c) State Taxation of National Banks, 1168. aa. In General, 1168. bb. National Bank Shares, 1168. (aa) In General, 1168. 1156 Vol. XL TAXATION. (bb) Discrimination Forbidden, and What Constitutes, 1168. fff. Discrimination in Mode of .Assess- ment, 1168. (ccc) Deduction of Real Estate Out- side of State, 1168. (cc) Assessment to Bank Direct as Agent for Stockholders, 1168. iii. Tax on Foreign Held Shares, 1169. cc. Franchise or Intangible Property, 1169. dd. Resisting Reassessment, 1169. (d) Federal Taxation of Banks, 1170. (2) Mode of Taxation, 1170. (e) Taxation of Circulation, 1170. j. Foreign Corporations, 1170. D. Federal, State and Alunicipal Securities, 1170. 2. State and Municipal Securities, 1170. F. Imports and Exports, 1170. 2. By the States, 1170. b. Under Prohibition to States to Tax Imports and Exports, 1170. (7) Foreign Warehouse Receipts, 1170. H. Lands and Interests Therein, 1170. 1. Lands in General, 1170. 2. Public Lands of the United States, 1170. b. Public Lands Not Granted, 1170. c. Public Lands after Entry or Grant but before Issue of Patent, 1171. (2) Alineral Lands, 1171. (3) Railroad Grants, 1171. 3. Interest of Lessee, 1171. 4. Mortgaged Property, 1172. I. Money and Deposits in Bank, 1172. O. Distilled Spirits in Bonded Warehouse, 1172. V. Exemptions from Taxation, 1172. A. Definitions and Distinctions, 1172. B. Power to Grant Exemptions, 1172. 1. Power of State Legislatures, 1172. a. In General, 1172. 3. Power of Municipalities, 1172. C. Rules of Construction, 1173. 1. Statutes Exempting Property, 1173. a. In General, 1173. c. Presumptions and Burden of Proof, 117.^. (1) Presumptions, 1175. d. Implied Exemptions. 1175. (1) In General, 1175. (2) Effect of Silence of Charter as to Exemption. 1175. f. Act of Congress Ratifying Territorial Grant of Franchise, 1176. g. Exemption of Indian Allotments, 1176. D. Impairment of Obligation of Contracts. 1176. 1. In General, 1176. 5. Exemption Granted Owner of Land, 1176. a. In General, 1176. 11J7 TAXATION. Vol. XI. b. Taxation of Interest of Lessee, 1176. 6. Exemption of Indian Allotments, 1177. F. Transfer of Immunity from Taxation, 1178. 1. Right of Owner to Transfer Exemption, 1178. 3. Effect of Consolidation or Sale of Corporation Enjoying Exemp- tion, 1178. 4. Power of Legislature to Transmute Exemption, 1180. a. In General, 1180. b. Construction of Particular Words and Phrases in Grant, 1180. G. Property Entitled to Exemption, 1181. 4. Corporations, 1181. a. Corporate Stock, 1181. (1) Exemption of Capital Stock as Exemption of Share- holders, 1181. (3) Exemption of Stock as Exemption of Property Rep- resented Thereby, 1181. b. Banks, 1182. (2) Inviolability of Contract, 1182. cc. Limitations of General Rule, 1182. dd. Changing Day of Assessment, 1182. c. Railroads, 1182. (1) Inviolability of Contract, 1182. H. Commencement and Termination of Exemption. 1183. 3. Duration, 1183. 4. Revivor of Exemption of Railroad A'oid for Failure to Construct in Time Limit, 1183. VI. Assessment and Levy, 1183. A. General Principles, 1183. 4. Due Process of Law. 1183. a. General Statement, 1183. b. Notice and Hearing, 1183. (1) Necessity Generally, 1183. (2) Character of Notice and Hearing, 1184. (3^) Entry and Record of Assessment, 1184. c. Taxation in Rem, 1184. e. Classification of Property Not Prohibited, 1184. g. Assessment of Back Taxes, and Reassessments, 1185. i. Credits Due Foreign Insurance Companies. 1186. j. Allowance for Obligations and Debts, 1186. 5. Conclusiveness of Assessment, 1186. 6. Time and Place, 1187. C. Liability for and Payment of Taxes, 1187. 1. Liability, 1187. d. Between Landlord and Tenant, 1187. f. Between Vendor and Vendee, 1187. j. Company Operating Railroad, 1187. k. Shares of National Bank Stock. 1188. D. Lien for Taxes. 1188. 2. Accrual and Duration, 1188. 4. Enforcement, 1188. F, Corrections and Additions. 1188. 4._ Boards of Revision or Equalization, etc., 1188. H. Injunction against Taxes, 1188. 1. Jurisdiction, 1188. a. General Statement of Rule, 1188. 1158 Vol. XL TAXATION. 371-372 b. Exhaustion of Other Remedies, 1189. f. Necessity for Pavment of Taxes Admittedly Due, 1189. 4. Res Judicata, 1189. VII. Collection of Taxes, 1189. A. General Principles, 1189. 2. Due Process of Law. 1189. D. Collection by Suit or Motion. 1190. 2. Jurisdiction, 1190. a. At Law, 1190. F. Forfeiture or Purchase by State for Taxes, 1190. VIII. Sale for Taxes, 1191. A. General Principles and Preliminary Steps, 1191. ]/>. Nature of Proceedings, 1191. 6. Filing Certificates of Delinquency. 1192. 7. Notice and Summons, 1192. 8. Petition or Complaint, 1192. 9. Application for Judgment, 1193. B-C. Advertisement and Notice, 1193. 1. Necessity and Purpose, 1193. L Tax Deed or Certificate and Title Passing Thereunder, 1193. 6. Description of Property, 1193. 9. Efficacy of Tax Deed to Pass Title. 1194. c. As Prima Facie Evidence of Title under Statutes, 1194. T. Relief against Invalid Sale and Deed, 1194. 2. Grounds of Relief. 1194. M. Redemption, 1194. 1. Regulation of Right. 1194. IX. Refunding and Recovery Back of Taxes, 1194. B. Recovery Back, 1194. 3. Payment Must Not Be Voluntary, 1194. X. Disposition and Expenditure of Taxes, 1195. F. Agreement by Municipalitv to Pav Judgments in Order of Rendition, 1195. CROSS REFERENCES. See the title Taxation, vol. 11, p. 356, and references there given. In addition, see ante. Appeal and Error, p. 34. As to impairment of obligation of contract of municipality by restricting tax- ation, see ante, I^rpAIRMEXT of Obligation of Contracts, p. 624. II. Classification of Taxes, Definitions and Distinctions. B. Definitions — 4. Excise: Taxes — b. Excise Tax on Doing Business, etc., as Measured by Receipts. — A tax upon earnings is a tax which at last covers and includes, unless double taxation is intended, all property necessarily held and used to make that income, including the enjoyment of its franchises."^ d. Duty on Gains, Profits, Incomes and Dividends. — Relation to Property Tax. — Since the commercial value of property consists of the expectation of income from it, and since taxes ultimately, at least, in the long run. come out of income, obviously taxes called taxes on property, and those called taxes on income or receipts, tend to run into each other somewhat as fair value and an- ticipated profits run into each other in the law of damages. ^^* 371-7a. Tax on earnings. — Wright 7'. 372-lla. Relation to property tax. — Georgia R., etc., Co.. 216 U. S. 420, 54 L. Galveston, etc., R. Co. v. Texas, 210 U. Ed. .544. .30 S. Ct. 242. S. 217. 52 L. Ed. 1031. 28 S. Ct. 638. 1159 378-388 TAXATION. Vol. XI. C. Distinctions. — See ante, "Duty on Gains, Profits, Incomes and Divi- dends," II, B, 4, d. III. Taxing Power. A. In General — 2. Limitations on Power — b. Requirement of Equality and Uniformity — (^) In General. — The legality of a tax is not to be meas ured by the benefits received by the taxpayer, although ecjuality of burdens be the general standard so>ught to be attained. Protection and taxation are not necessarily correlative obligations, nor precise equality of burden attainable, however desirable. The taxing power is one which may be interfered with upon the grounds of unjustness only when there has been such flagrant abuse as may be remedied by some affirmative principle of constitutional law."*'^'^ d. Retrospective Taxation. — Laws of a retroactive nature, imposing taxes or providing remedies for their assessment and collection, and not impairing vested rights, are not forbidden by the federal constitution.'^^'' 4. Territorial Limitations of Power — a. Situs of Property. — See post, "Situs as Determining Taxability," IV, A, 2, b. b. Effect of Compact betiveen States as to Jurisdiction over Waters. — The ex- clusive jurisdiction of and over all the waters of the bay of New York and of and over the land covered by the said waters to the low-water mark on the New Jersey shore, conferred on the state of New York by the compact between that state and New Jersey, does not include the right of the sovereign power of taxa- tion. "■''= Such lands are taxable by New Jersey. ^^'' 378-46a. Requirement of equality and uniformity. — Southern Pac. Co. v. Kcn- tuckj^ 223 U. S. G3, 56 L. Ed. 96, ,">2 S. Ct. 13. 388-88a. Retrospective taxation. — Ken- tucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171, citing League v. Texas. 184 U. S. 156, 46 L. Ed. 478, 22 S. Ct. 475. 388-89a. "The word 'jurisdiction' ob- viously is used in a more limited sense. The word has occurred in other cases where a river was a boundary, and in the Virginia compact was held to mean, primarily at least, jurisdictio, authority to apply the law to the acts of men. Wedding v. Meyler, 192 U. S. 573, 584, 48 L. Ed. 570, 24 S. Ct. 323." Central R. Co. V. Jersey Citv, 209 U. S. 473, 52 L. Ed. 896, 28 S. Ct. 592. 388-89b. Lands lying between the mid- dle of New York Bay and the low-water line on the New Jersey shore are tax- able by New Jersey, notwithstanding the provisions of a compact between the states, fixing the boundary line as the middle of New York Bay, approved by congress. Act June 28, 1834, c. 126, 4 Stat. 708, by which New York is given "exclusive jurisdiction of and over all the waters of the baj- of New York," and ■'of and over the land covered by the said waters to the low-water mark" on the New Jersey side, subject to the ex- clusive right of property in New Jersey "in and to the land under water Ijdng west of the middle of the bay," and to her exclusive jurisdiction over wharves, docks, and improvements made, or to be made, on her shore, and to her ex- clusive right to regulate the fisheries on the west of the middle of said waters. Judgment (Err. & App. 1905), 61 A. 1118, 72 N. J. Law, 311, affirmed. Central R. Co. -c'. Jersey City, 209 U. S. 473, 52 L. Ed. 896, 28 S. Ct. 592. "The conclusion reached has the very powerful sanction of the conduct of the parties and of the existing condition of things. See Moore v. McGuire, 205 U. S. 214, 220, 51 L. Ed. 776, 27 S. Ct. 483. * * * The record of transfers ol such lands was kept in New Jersey, not in New York. New York never has at- tempted to tax the land, while in Nev/ Jersey has levied more or less similar taxes for many years without dispute. See, e. g.. State, Coles, Prosecutor v. Piatt, 24 N. J. L. 108, 120; State v. Bent- ley, Prosecutor v. Sippel, 25 N. J. L. 530; State, Morris Canal & Bkg. Co., Prosecu- tor V. Haight, 35 N. J. L. 178: S. C. 36 N. J. L. 471. New Jersey not New York, regulates the improvements on the shore. Act of March 18, 1851, P. L. 1851, p. 335; Rev. 1877, p. 1240; Act of April 11. 1864, P. L. 1864, p. 681; March 31, 1869, P. L. 1869. p. 1017; 3 Gen. Stat. 2784, 2786; New York, L. E. & W. R. Co. v. Hughes, 46 N. J. L. 67." Central R. Co. v. Jersey City, 209 U. S. 473, 52 L. Ed. 896, 28 S. Ct. 592. "The land which has been taxed is on the New Jersey side of the boundary line, l)ut under the exclusive jurisdiction of New York, subject to the exclusive riglit of the property in New Jersey, and the limited jurisdiction and authority con- ferred by the paragraphs summed up * * * the dominant fact is the establish- 1160 Vol. XI. TAXATION. 388-416 c. Reseri'ation of Porto Rico Harbor Areas and Waters in Favor of the United States. — Jurisdiction for taxing purposes of the harbor areas and navi- gable waters within the defined limits of Porto Rico was not denied the insular government by the reservation of such areas and waters in favor of the United State'^, which must be construed as proprietary reservations only, and not as lim- itations upon the exercise of government.^^^^ D. 01 the States — l.'Ix Gkxeral — b. .Xatiire and Extent. — Means and Instrumentalities of Federal Government. — See note 63. E. Of Municipal Corporations — 1. Ix Gexeral — h. Misappropriation of Special Tax. — The levy and collection of taxes by a city to satisfy outstanding indebtedness of the metropolitan police board, contracted on the faith of the ex- ercise of the taxing power for its payment, do not exhaust the city's power in the i:remises, where the city has applied the taxes to other purposes, and has failed to turn them over, upon demand, to the board or its representative.^^ IV. Subjects of Taxation. A. General Principles — 2. Jurisdicttox axd v^itus — a. Necessity f<,i- Ju- risdiction — (2) Xonrcsidency of Ozvner Docs X ot Prevent Taxation. — See note 14. b. Situs as Ddermining Taxahil'd\ — (1) Of R.eal Estate. — See ante, "Ter- ritorial Limitations of Power," III, A, 4. (2) Of Personal Property — (a) In General. — In the eye of the law, personal property, for most purposes, has no locality. * ^^ =^ In a qualified sense it ac- companies the owner wherever he goes, and he may deal with it and dispose of it according to the law of his domicile. But this doctrine is not allowed to stand in the way of the taxing power in the locality where the property has its actual situs, and the requisite legislative jurisdiction exists. Such property is undoubt- edly liable to taxation there in all respects as if the proprietor were a resident of the same locality. The personal property of a resident at the place of his resi- dence is liable to taxation, although he has no intention to become domiciled ment of the boundar}- line. The boundar}- 388-89c. Reservation of Porto Rico line is the line of sovereignty, and the es- harbor areas and waters in favor of tablishment of it is not satisfied, but is United States. — Gromer z\ Standard contradicted by the suggestion that the Dredging Co., 224 U. S. 362, 56 L. Ed. agreement simply gives ownership of the 801, 32 S. Ct. 499, so held as reservation land under water on the New Jersey side mode by Act of April 12, 1900 (31 Stat, to that state as a private owner of land at L. 77, 80, chap. 191), § 13, and Act of lying within the state of New York. On July 1. 1902 (32 Stat, at L. 731, ch. 1363). the contrary, the provision as to ex- 404-63. The requirement that receipts elusive right of property in the compact (^r the payment of the federal internal between states is to be taken primarily revenue tax upon the business of selling to refer to ultimate sovereign rights, m intoxicating liquors be registered and pursuance of the settlement ot the tern- pubHshed at the holder's expense, which tonal limits, which was declared to be jg m^de by Act N. D. March 13, 1907 one purpose of the agreement, and is not (l^ws 1907. c. 189), is not a valid exer- to be confined to the assertion and recog- cise of the police power, but is invalid, nition of a pnvate claim, which, for all ^g placing a direct burden upon the tax- that appears, may have been inconsistent j^g p^^^^ of the federal government, with titles already accrued, and which Judgment (1907), 113 N. W. 371, 16 N. would lose significance the moinent that d_ 347^ reversed. Flaherty v. Hanson, New Jersey sold the land. Central R. 315 y. S. 515, 54 L. Ed. 307, 30 S. Ct. Co. V. Jersey City, 209 L. S. 473, 52 L. ^79 Ed. 896, 28 S. Ct. 592. !,io , u , ^t r-. 1 01- t- 'Boundary means sovereignty, since, in ^ ^l^-la Huberc f New Orleans, 21o L. modern times, sovereignty is mainly tcr- S. 170, 54 L. Ed. 144, 30 S. Ct. 40. ritorial, unless a different meaning clearly 416-14. Southern Pac. Co. v. Kentucky, appears." Central R. Co. z'. Jersey City, 222 U. S. 63, 56 L. Ed. 90, 32 S. Ct. 13, 209 U. S. 473, 52 L. Ed. 896, 28 S. Ct. followmg St. Loui.-^ z: Ferry Co., 11 Wall. 592. 423, 430, 20 L. Ed. 192. 1161 416-419 TAXATION. Vol. XI. there.^^^ The ancient maxim which assigns to tangibles, as well as intangi- bles, the situs of the owner for purposes of taxation, has its foundation in the protection which the owner receives from the government of his residence; and the exception to the principle is based upon its theory that if the owner, by his own act, gives to such property a permanent location elsewhere, the situs of the domicile must yield to the actual situs and resulting dominion of another gov- ernment. ^^'^ (b) Of Tangible Personal Property — aa. In General. — Taxation of tangible personal property permanently located elsewhere than in the state of the owner's domicile iDy the law of the domicile of the owner would be a denial of due proc- ess of law, and beyond the power of the state, ^^^ but the state of the domicile of the owner has power to tax tangibles which have not acquired an actual situs elsewhere. '^^'^ dd. Ships and Shipping. — See note 22. The general rule has long been settled as to vessels plying between the ports of different states, engaged in the coast- wise trade; that the domicile of the owner is the situs of a vessel for the pur- pose of taxation, wholly irrespective of the place of enrollment, subject, how- ever, to the exception that where a vessel engaged in interstate commerce has acquired an actual situs in a state other than the place of the domicile of the owner, it may there be taxed because within the jurisdiction of the taxing au- thority, being property which had become incorporated into the tangible prop- erty within her territory. ^-'^ 416-16a. Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 36 L. Ed. 96, 32 S. Ct. 13. 416-16b. Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96. 32 S. Ct. 13. 417-18a. Southern Pac. Co. i-. Ken- tucky, 199 U. S. 194, 195, 50 L. Ed. 150, 26 Ct. 13, approving and distinguisiiing Union Refrigerator, etc., Co. v. Kentucky, 199 U. S. 194, 50 L. Ed. 150, 26 S. Ct. 36. In Union Refrigerator, etc., Co. v. Ken- tucky, 199 U. S. 194, 195, 50 L. Ed. 150, 26 S. Ct. 36. The question for decision in that case, as stated in the forepart of the opin- ion, was "whether a corporation or- ganized under the law of Kentucky is subject to taxation upon its property permanently located in other states, and employed there in the prosecution of its l)usiness." The property in question was railroad cars a kind of movables ob- viously capalile of acquiring a permanent location other than that of the owner. The judgment of the court was that the taxation of such property so perma- nently located elsev/here by the law of the domicile of the owner would be a denial of due process of law, by the state. The principle was not a new one, and was de- clared to rest upon repeated judgments of this court, the cases of Railroad Co. v. Jackson, 7 Wall. 262, 19 L. Ed. 88; Dela- ware, etc., R. Co. V. Pennsylvania, 198 U. vS. 341, 49 L. Ed. 1077, 25 S. Ct. 669; Louisville, etc.. Ferry Co. v. Kentucky, 188 U.S. 385, 47 L. Ed. 513, 23 S. Ct. 463, being cited as precedents. Southern Pac. Co. V. Kentuckv, 232 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 417-18b. Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 419-22. Southern Pac. Co. v. Kentucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 419-22a. Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13, following Old Dominion Steam- ship Co. V. Virginia, 198 U. S. 299, 49 L. Ed. 1059, 25 S. Ct. 686; Ayer, etc.. Tie Co. V. Kentucky, 202 U. S. 409, 50 L. Ed. 1082, 26 S. Ct. 679, and distinguishing, Union Refrigerator, etc., Co. v. Kentucky, 199 U. S. 194, 50 L. Ed. 150, 26 S. Ct. 36. "The persistence with which this court has declared and enforced the rule of taxibility at the domicile of the owner of vessel property, when it did not appear that the vessels had an actual situs else- where, is illustrated by the cases of Hays V. Pacific Mail Steamship Co., 17 How. 596, 15 L. Ed. 254: Morgan v. Parham, 16 Wall. 471, 21 L. Ed. 303; St. Louis v. Ferry Co., 11 Wall. 423, 20 L. Ed. 192; Old Dominion Steamship Co. v. Virginia, 198 U. S. 299, 49 L. Ed. 1059, 25 S. Ct. 686, and the case of Ayer, etc.. Tie Co. v. Ken- tucky, 202 U. S. 409, 50 L. Ed. 1082, 26 S. Ct. 679." Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. "To lay down a principle that vessel property has no situs for purposes of taxation other than that of actual perma- nent location would introduce elements of uncertainty concerning the situs of such property not presented by other kinds of movable property." Southern 1162 Vol. XL TAXATION. 419 Due Process of Law. — Making the domicile of the corporate owner of ocean-going steamships the situs for taxation, where such vessels have acquired no actual situs elsewhere, is not inconsistent with the due process of law guar- anteed by the fourteenth amendment to the federal constitution.-^'^ Right to Selection of Home Port. — The right of the owner to select the Pac. Co. V. Kentucky, 222 U. S. 63. 56 L. Ed. 96, 32 S. Ct. 13. It is one thing to find that a movable, such as a railway car, a stock of mer- chandise, or a herd of cattle, has become a part of the permanent mass of prop- erty in a particular state, and quite an- other to attribute to a seagoing ship an actual situs at any particular port into which it goes for supplies or repairs, or for the purpose of taking on or discharg- ing cargo or passengers. A ship is not intended to stay in port, but to navigate the seas. Its stay in port is a mere in- cident of its voyage, and to determine that it has acquired an actual situs in one port rather than another would involve such grave uncertainty as to result often in an entire escape from taxation. South- ern Pac. Co. V. Kentttcky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. "This court, in Hays v. Pacific Mail Steamship Co., IT How. 596, 15 L. Ed. 254, said upon this subject: 'Whether the vessel, leaving her home port for trade and commerce, visits, in the course of her voyage or business, several ports, or confines her operations in the carry- ing trade to one, are questions that will depend upon the profitable returns of the business, and will furnish no more evi- dence that she has become a part of the personal property within the state, and liable to taxation at one port than at the others. She is within the jurisdiction of all or any one of them temporarily, and for a purpose wholly excluding the idea of permanently abiding in the state, or changing her home port.' " Southern Pac. Co. 7'. Kciituckv, 222 U. S. 63. 56 L. Ed. 96, 32 S. Ct. 13. In Hays v. Pacific Mail Steamship Co., 17 How. 596, 599. 15 L. Ed. 254, the'couit said: "And so far as respects the porls and harbors within the United States, they are entered and cargoes discharged or laden on board, independently of any control over them, except as it respects such municipal and sanitary regulations of the local authorities as are not incon- sistent with the constitution and laws of the general government, to v/hich be- longs the regulation of commerce with foreign nations and between the states." Southern Pac. Co. v. Kentucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. "In Hays v. Pacific Mail Steamship Co., 17- How. 596, 15 L. Ed. 254, it ap- peared that the ships of the company were the property of a New York cor- poration, and that they were registered at the port of New York, where the capi- tal represented by them was assessed for taxation. They were regularly and con- tinuously employed on the Pacific coast, and were refitted and repaired from time to time at Benicia, in the state of Cali- fornia. Concerning these ships, which the state of California sought to tax, upon the theory that they had an actual situs in that state, this court said: 'These ships are engaged in the transportation of passengers, merchandise, etc., between the city of New York and San Francisco, by the way of Panama, and between San Francisco and different ports in the ter- ritory of Oregon. They are thus en- gaged in the business and commerce of the country, upon the highway of na- tions, touching at such ports and places as these great interests demand, and which hold out to the owners sufficient inducements by the profits realized or expected to be realized.' " Southern Pac. Co. 7'. Kentucky. 222 U. S. 63, 56 L. Ed. 96. 32 S. Ct. 13. Greater delay in one port than others. — "It may be that the course of trade or other circumstances might not occasion as great a delay in other ports on the Pacific as at the port of San Francisco. But this is a matter accidental, depend- ing upon the amount of business to be transacted at the particular port, the na- ture of it, necessary repairs, etc., which m no respect can effect the question as to the situs of the property, in view of tlie right of taxation by the state." South- ern Pac. Co. V. Kentucky, 222 U. S. 63, 56 E. Ed. 96, 32 S. Ct. 13. Number of ports visited. — "Whether the vessel, leaving her home port for trade and commerce, visits, in the course of her voyage or business, several ports, or confines her operations in the carry- ing trade to one, are questions that will depend upon the profitable returns of the business, and will furnish not more evi- dence that she has become a part of the personal property within the state, and liable to taxation at one port than at the others. She is within tlie jurisdiction of all or any one of them temporarily, and for a purpose wholly excluding the idea of permanently abiding in the state, or changing her home port." Southern Pac. Co. V. Kentucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 419-22b. Due process of law. — South- ern Pac. Co. 7'. Kentuckv, 222 U. S. 63, 56 L. Ed. 96. 32 S. Ct. 1.3". 1 ] 63 419 TAXATION Vol. XT. name of the place of enrollment, the place where the vessel was built, or the place where the owner resides, as the place to be marked upon the stern as the home port, does not confer the arbitrary right upon the owner to select a place for the taxation of his vessel.^^^' Since, therefore, an artificial situs for purposes of tax- ation is not acquired by enrollment nor by the marking of a name upon the stern, the taxable situs must be that of the domicile of the owner, since that is the situs assigned to tangibles where an actual situs has not been acquired elsewhere.--'* 419-22C. Southern Pac. Co. f. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13, affirming judgment (1909), Com- monwealth V. Southern Pac. Co., 120 S. W. 311, 134 Ky. 417, 20 Ann. Cas. 965, so holding as to right given the owner by Rev. St., §§ 4141, 4178 (U. S. Comp. St.), 1901, pp. 2808, 2830, as amended by Act June 23, 1874, c. 467, 18 St. 252. "The owner has no power to give his vessel a taxable situs by the arbitrary selection of a home port which is neither his domicile nor the domicile of actual situs. St. Louis v. Ferry Co., 11 Wall. 423, 20 L. Ed. 192; Old Dominion Steam- ship Co. V. Virginia, 198 U. S. 299, 49 L. Ed. 1059, 25 S. Ct. 686; Ayer, etc., Tie Co. v. Kentucky, 202 U. S. 409, 50 L. Ed. 1082, 26 S. Ct. 679." Southern Pac. Co. V. Kentucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 419-22d. Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96. 32 S. Ct. 13. Ocean-going steamships owned by a Kentucky corporation, and plying be- tween the ports of New York and New Orleans, New York and Galveston, and New Orleans and Havana, are taxable in Kentucky, the domicile of the owner, al- though the vessels are enrolled at the port of New York, and carry the words "New York'' on their sterns; these facts not being sufficient to give the vessels an actual situs in New York. Southern Pac. Co. V. Kentucky. 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 3 3. "In Ayer, etc., Tie Co. v. Kentucky, 202 U. S. 409, 50 L. Ed. 1082. 26 S. Ct. 679. the boats there in question were en- gaged in interstate commerce between the ports of Kentucky, Illinois. Missis- sippi. Tennessee, and Arkansas. They are owned by an Illinois corporation which has its principle office at Chicago, where taxes had been paid under the lav.'s of the state, both to the state and the city. Brookfield, in the extreme southern part of the state, and upon the Ohio river. was a port of call, and an office was prob- ably maintained there, it being a place where cargoes were often discharged. The general manager of the transporta- tion department of the company resided in Kentuck3\ and the boats of the fleet were enrolled at Paducah in that state, and bore upon their sterns the name 'Paducah,' as the home port or port of hail under the statute. Paducah was the place where the boats received their sup- plies and repairs, where seamen were hired and laid up when not in use, though it seeins that Paducah was not a point where cargo was either received or dis- charged. Upon this state of facts it was held that the boats of the company had neither such artificial situs through en- rollment or the marking upon their sterns, not such actual situs by reason of the temporary stoppage at Paducah and other ports of the state, as to draw to it jurisdiction for purposes of taxa- tion."' Southern Pac. Co. v. Kentucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. "In St. Louis V. Ferry Co., 11 Wall. 423, 20 L. Ed. 192 * * *. the steamboat in question was owned by an Illinois cor- poration, which had its principal office within that state. They were enrolled at the port of St. Louis, where the prin- cipal officers of the companj^ resided, and where an office was maintained, in which the corporate meetings were held, and where the corporate seal was kept. That they were enrolled at St. Louis, the court said, 'throws no light upon the subject of our inquiry * * =^. The solution 6i the question, where her home port is, when it arises, depends wholly upon the lo- cality of her owner's residence, and not upon the place of her enrollment.' The steamers were taxed in Illinois, and were held not subject to taxation in St. Louis. Upon this subject the court said: 'The owner was. in the eye of the law, a citizen of that state, and from the in- herent law of its nature, could not emi- grate or become a citizen elsewhere. As the boats were laid up on the Illinois shore when not in use, and the pilots and engineers who ran them lived there, that locality, under the circumstances, must be taken to be their home port. They did not so abide within the city as to become incorporated with and form a part of its personal propert3^ Hence they were be- yond the jurisdiction of the authorities by which the taxes were assessed, and the validity of the taxes can not l)e main- tained.'" Southern Pac. Co. v. Ken- tucky. 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. "In ^Morgan f. Parham, 16 Wall. 471, 21 I,. Ed. 303, the vessel was owned and registered in New York, but enrolled as a coaster at Mobile, where her master resided, and where there was an office and agent under tlie control of a superior 1164 \'ol. XL TAX AT I OX. 419-420 Inability of Vessel to Reach Domicile of Owner.— The inability of ves- sels, by reason of draught, or the depth of water, to go to the situs of the domi- cile of the owner, does not prevent their taxation at that domicile, where they have gained no actual situs elsewhere. --*' Use in Performance of Dredging Contract with the United States. — The use of machinery and boats in tlie performance of a dredging contract with the United States does not exempt them from local taxation.--^ (c) Of Intangible Personal Property — aa. In General — Debts and Credits. — The difficulties attendant upon the taxation of intangible property elsewhere than at the domicile of the owner have largely preserved the domicile of the owner as the proper situs for purposes of taxation.-^*^ It is property within the state, which the state may tax at its discretion. -'^^ Debts Due Residents Secured on Property in Another State. — See note 27 . Credits Held within State for Nonresident Owner. — See notes 28, 29. agent residing at Xew Orleans, who em- ployed and paid the other officers and men of the ships. There was also a wharf at Mobile, controlled and occupied by the vessels of the line. The vessels were engaged in commerce between Mobile and New Orleans, and have been so con- tinuously for several years. The court held that the state of Alabama had no jurisdiction over the vessels for the pur- pose of taxation, for the reason that they had not become incorporated into the personal property of that estate, but were there temporarily only, and that they were engaged in lawful commerce be- tween the states, and their situs at tlie home port of New York, where they be- longed, and where their owners were li- able to be taxed for their value." South- ern Pac. Co. V. Kentucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 419-22e. Southern Pac. Co. v. Ken- tuckv, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 419-22f. Use in performance of dredg- ing contract with the United States. — Gromer v. Standard Dredging Co., 224 U. S. 362, 56 L. Ed. 801, 32 S. Ct. 499, so held as to machinery boats so used in the harbor of San Juan, Porto Rico. 419-25a. Southern Pac. Co. v. Ken- tucky, 222 U. S. 63, 56 L. Ed. 96, 32 S. Ct. 13. 419-26a. Negotiable bills and notes. — Selliger v. Kentucky. 213 U. S. 200, 53 L. Ed. 761, 29 S. Ct. 449, citing Buck v. Beach, 206 U. S. 392, 413, 51 L. Ed. 1106, 27 S. Ct. 712. "Bonds can be taxed where they are permanently kept, because, by a notion going back to very early law, the obliga- tion is, or originally was, inseparable from the paper or parchment which ex- pressed it." Selliger z'. Kentucky, 213 U. S. 200, 53 L. Ed. 761, 29 S. Ct. 449. 419-27. Debts due residents secured on property in another state. — "In Kirtland V. Hotchkiss. 100 U. S. 491, 25 L. Ed. 558, it was held that the federal constitution does not prohibit a state froin taxing her own citizens upon bonds belonging to them, although they were made by debtors resident in other states and secured by mortgage on real estate there situated. The sole inquiry was with re- spect to the validity of the statute of Connecticut, where the creditor was domiciled." Orient Ins. Co. f. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. The court said in New Orleans v. Stempel, 175 U. S. 309, 44 L. Ed. 174, 20 S. Ct. 110, in referring to Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. Ed. 558. "It was assumed that the situs of such intangible property as a debt evidenced by bond was at the domicile of the owner. There was no legislation attempt- ing to set aside that ordinary rule in respect to the matter of situs. On the contrary, the legislature of the state of Connecticut, from which the case came, plainly reaffirmed the rule, and the court in its opinion summed up the case in these words (p. 499): 'Whether the state of Connecticut shall measure the contribtition which persons resident within its jurisdiction shall make by way of taxes, in return for the protection it affords them, by the value of the credits, choses in action, bonds, or stocks which they may own (other than such as the exempted or protected from taxation un- der the constitution and laws of the United States), is a matter which con- cerns only the people of that state, with which the federal government can not rightfully interfere.' See, also, Kidd v. Alabama, 188 U. S. 730, 47 L. Ed. 669, 23 S. Ct. 401." Orient Ins. Co. v. Board. 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 420-28. Credits held within state. — Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554, quoting Metropolitan Life Ins. Co. v. New Or- leans, 205 U. S. 395, 402, 51 L. Ed. 853, 27 S. Ct. 499, and Blackstone v. Miller, 188 U. S. 189, 47 L. Ed. 439, 23 S. Ct. 277; 1165 420 TAXATION. Vol.- XI. The jurisdiction of the state of his domicile, over the creditor's person, does not exclude the power of another state in which he transacts his business, to lay a tax upon the credits there accruing to him against resident debtors, and thus to enforce contribution for the support of the government under whose protection his affairs are conducted. The jurisdiction of the latter state rests upon con- siderations which are more fundamental than that notes have been given, or that the credits were evidenced in any particular manner. ^^^ The legal fiction ex- pressed in the maxim mobilia sequuntur personam yields to the fact of actual con- trol elsewhere. And in the case of credits, though intangible, arising from a for- eigner's entering into business in the state of the debtor's domicile the control adequate to confer jurisdiction may be found in the sovereignty of the debtor's domicile. The debt, of course, is not the property in the hands of the debtor ; but is an obligation of the debtor, and is of value to the creditor, because he may be compelled to pay; and power over the debtor at his domicile is control of the ordinary means of enforcement. ^s** The foreigner doing business can not escape taxation upon his capital by removing temporarily from the state evidence of credits in the form of notes. Under such circumstances, they have a taxable situs in the state of their origin. 29*= Premiums Due Foreign Insurance Companies. — Premiums due a foreign insurance company on open account, though charged to the company's local agents instead of to the policy holders, may be subjected to state taxation without con- stituting a taking of the company's property without due process of law.^^*^ The Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. "When it is said that intangible prop- erty, such as credits on open account, have their situs at the creditor's domicile, the metaphor does not aid. Being in- corporeal, they can have no actual situs. But they constitute property; as such they must be regarded as taxable, and the question is one of jurisdiction." Orient Ins. Co. V. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 420-29. Loans by nonresident. — In Metropolitan Life Ins. Co. z\ New Or- leans, 205 U. S. 395, 51 L. Ed. 853, 27 S. Ct. 499, it was held that those engaged in the business of lending money in a state, being nonresidents of the same, might be taxed upon the capital em- ployed in such business, precisely as the state could tax the capital of its own citizens. Burke v. Wells, 208 U. S. 14, 52 L. Ed. 370, 28 S. Ct. 193. In the case of New Orleans v. Stempel, 175 U. S. 309, 44 L. Ed. 174, 20 S. Ct. 110, "It appeared that the assessed credits were evidenced by notes secured by mortgages on real estate in New Orleans; that these notes and mortgages were in that city, in the possession of an agent, who collected the proceeds and the in- terest as it became due, and deposited the same in the bank in New Orleans to credit of the plaintiff, the guardian of infant owners, who, like herself, were domiciled in the state of New York. The tax was sustained." Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. In State Board v. Comptoir Nat. D'Escompte, 191 U. S. 388, 48 L. Ed. 232, 24 S. Ct. 109, a foreign banking company did business in New Orleans and there made loans through a local agent. The loans were made upon a collateral security, the customer drawing his check, which was treated as an overdraft and held as a memorandum of the indebted- ness. The court decided that the credits so evidenced, created in the Louisiana business, were taxable in that state. Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. The "checks" in State Board v. Comptoir Nat. D'Escompte, 191 U. S. 388, 48 L. Ed. 232, 24 S. Ct. 109, were only memoranda of indebtedness or vouchers. "While called 'checks,' and so referred to in the record and by the par- ties in their dealings, the instrument de- livered to the Comptoir, in form an ordinary check, as though drawn for pay- ment on presentation from moneys de- posited, had no such function. The money was paid to the customer upon the security of the collateral, and the so- called check taken and held as a memo- randum of the indebtedness to the Comptoir." Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 420-29a. Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769. 31 S. Ct. 554. 420-29b. Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 420-29C. Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 420-29d. Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554, affirming 50 So. 778, 124 La. 872. "The premiums were the consideration 1166 Vol. XI. TAXATION. 420 premium accounts were not withdrawn from the constitutional authority of the state either by reason of the fact that they were payable in consideration of in- surance, instead of loans or goods sold, or by the circumstance that the credits were not evidenced by written instruments. They were none the less enforceable credits arising in the local business. -^^ Loans to Policy Holders by Insurance Foreign Companies. — Loans made by foreign life insurance company to its policy holders, which, though represented by notes, are in fact charged against the reserve value of the bor- rowers' policies, under an agreement for the extinguishment of the debt by deducting the amount of the loans, with interest, from the amount of any claim under the policies, are not taxable by the state in which the borrowing policy holders reside. -^^ Where the insurance company makes loans, properly so called, to its policy holders, the tax is valid. -^^ for the insurance contracts; they were the returns from the local business. Charging the premiums to the local agents did not withdraw the credits ac- cruing to the corporations in the business transacted within the state from its tax- ing power." Orient Ins. Co. v. Boird. 221 U. S. 358, 53 L. Ed. 769, 31 S. Ct. 554. 420-29e. Liverpool, etc., Ins. Co. v. Board, 221 U. S". 346, 55 L. Ed. 762, 31 S. Ct. 550, affirming 47 So. 415, 122 La. 98. State taxation of the amounts due a foreign insurance company by its policy holders in the state for premiums on which credit of thirty and sixty days had been extended docs not take the property of the company without due process of law, contrary to Const., amend. 14, even though such indebtedness is not evi- denced by written instruments. Liver- pool, etc.. Ins. Co. v. Board, 221 U. S. 346, 55 L. Ed. 762, 31 S. Ct. 550, affirming judgment (1908), 47 So. 415, 122 La. 98. "Further, if there had been no note?, luit the piemium accounts had been other- wise evidenced by written instruments, they would have been equally taxable." Orient Ins. Co. 7'. Board. 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. "The credits would have had no exist- ence save for the permission of Louisi- ana; they issued from the business trans- acted under her sanction within her borders; the sums were payable by per- sons domiciled within the state, and there the rights of the creditors were to be en- forced. If locality, in the sense of sub- jection to sovereign power, could be at- tributed to these credits, they could be localized there. If as property, they could be deemed to be taxable at all, they could be taxed there." Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. "We are not dealing here merely with a single credit or a series of separate credits, but with a business. The insur- ance company chose to enter into the business of lending money within the conducted under the laws of the state, state of Louisiana, and employed a local agent to conduct that business. It was The state undertook to tax the capital em- ployed in the business precisely as it taxed the capital of its own citizens in like situation. For the purpose of arriv- ing at the amount of capital actually em- ployed, it caused the credits arising out of the business to be assessed." Orient Ins. Co. V. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 420-29f. Judgment, Xew York Life Ins. Co. V. Board of Assessors for Parish of New Orleans (1908), 158 F. 462, af- firmed. Board v. New York Life Ins. Co., 216 U. S. 517, 54 L. Ed. 597, 30 S. Ct. 385. "In Board v. New York Life Ins. Co., 216 U. S. 517, 54 L. Ed. 597. 30 S. Ct. 385, the so-called credit consisted, in fact, of a payment to the policy holder of a por- tion of the amount for which the com- pany was bound by its policy. It was found that, despite the fact that notes were given, there was no personal liabil- ity but simply a deduction in account. As there was no loan, there was no credit to be taxed; and a decree in the circuit court restraining the collection of the tax was affirmed." Orient Ins. Co. v. Board, 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 420-29g. Board v. New York Life Ins. Co., 216 U. S. 517, 54 L. Ed. 597. 30 S. Ct. 385. The case of Metropolitan Life Ins. Co. V. New Orleans, 205 U. S. 395, 51 L. Ed. 853, 27 S. Ct. 499, was one of loans made through the local agent of the insurance company, a New York corporation doing business in Louisiana, to its policy hold- ers upon the security of their policies. The course of business was that, on the approval of a loan at the home office of the company, the company forwarded to the agent a check for the amount, with a note to be signed by the borrower. The agent procured the note to be signed, and forwarded both note and policy to the home office. The agent collected and transmitted the interest, and when the notes were paid, it was to the agent to whom they were sent to be delivered l-iack to the makers. At all other times. nCi', 420-439 TAXATION. Vol. XI. Deposits of Foreign Insurance Company Solely for Transmission to Home Office. — The Louisiana tax laws will not be construed by the federal courts as taxing bank deposits of a foreign life insurance company, made solely for transmission to its home office, and not used or drawn against by any one in Louisiana, in the absence of any decision of the Louisiana supreme court to that effect.29^ cc. Corporate Bonds Held Out of State. — See note 31. gg. Credits of Foreign Insurance Companx. — See ante, '"In General — Debts and Credits," IV, A, 2, b, (2), (c), aa. 5. Application of Doctrine of Res Judicata. — Decree in Suit to En- join Taxes. — A decree of a federal court, enjoining a state board of valua- tion and assessment from assessing bank stock for taxation, which proceeds solely upon the ground that such board is the agent of the local municipalities, and is therefore bound by the prior injunction decree obtained against a county in a suit to which the board was not a party, can not conclude another county, on any theory of the dependence of the power of the county to collect taxes upon the valuation and apportionment made by the boards, especially where the state courts do not adopt this theory of the relation of the board of valua- tion to the counties and other municipalities of the state.^^'' C. Corporations and Corporate Stock— 3. Particular Kinds of Cor- porations — a. Banks and Bank Stock — (1) Poiver to Tax — (c) State Taxa- tion of National Banks — aa. In General. — See note 61. The only taxation of national banks contemplated by Rev. St. \J. S., § 5219 (U. S. Comp. St. 190L p. 3502), is taxation on shares of stock and real property. ^^^ Methods of Taxation May Be Different.— By § 5219, Rev. Stat., the leg- islature of each state may, for itself, determine the matter and method for taxing shares in such banks, subject only to the restrictions named therein. ^-^ bb. National Bank Shares — (aa) In General. — See notes 64, 65. (bb) Discrimination Forbidden, and What Constitutes — fff. Discrimination in Mode of Assessment — (ccc) Deduction of Real Estate Outside of State. — See note 96. Tec) Assessment to Bank Direct as Agent for Stockholders. — See note 4. the notes and the policies securing them v. Owensboro, 173 U. S. 664, 4.3 L. Ed. were kept at the home office in New 850. 19 S. Ct. 537. York. The tax was held to be valid. 427-61a. First Nat. Bank. v. Albright, Orient Ins. Co. v. Board, 221 U. S. 358, 55 208 U. S. 548. 52 L. Ed. 614, 28 S. Ct. 349, L. Ed. 769, 31 S. Ct. 554. affirming 86 P. 548. 420-29h. Judgment, New York Life 427-62a. Methods may be different. — Cit- Ins. Co. f. Board of Assessors for Parish izens Nat. Bank r. Kentucky. 217 U. S. of New Orleans (1908), 158 F. 462, af- 443. 54 L. Ed. 832, 30 S. Ct. 532. firmed. Board v. New York Life Ins. 428-64, 65. "The law does not consider Co., 216 U. S. 517, 54 L. Ed. 597, 30 S. Ct. the nature of the bank's investment not 385. taxed in fixing the value of its stock (Pal- 420-31. "In State Tax on Foreign-Held mer z: McMahon, 133 U. S. 660, 33 L. Ed. Bonds, 15 Wall 300, 21 L. Ed. 179. * * * 772, 10 S. Ct. 324)." First Nat. Bank v. the tax was on the interest on bonds made Albright, 208 U. S. 548, 52 L. Ed. 614, 28 and payable out of the state, and issued to S. Ct. 349; Citizens Nat. Bank v. Kentucky, and held by nonresidents of the state. 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532, See Savings, etc., Soc. v. Multnomah following Owensboro Nat. Bank v. Owens- County, 169 U. S. 421, 42 L. Ed. 803, 18 S. boro, 173 U. S. 664, 43 L. Ed. 850. Ct. 392; New Orleans v. Stempel. 175 U. 437-96. First Nat. Bank v. Albright, S. 309, 320, 44 L. Ed. 174, 20 S. Ct. 110; 208 U. S. 548, 52 L. Ed. 614, 28 S. Ct. 349. Blackstone v. Miller, 188 U. S. 189, 206. 439-4. Assessment to bank direct. — 47 L. Ed. 439, 23 S. Ct. 277." Orient Ins. Citizens Nat. Bank r. Kentucky, 217 U. Co. 7'. Board, 221 U. S. 358, 55 L. Ed. 769, S. 443. 54 L. Ed. 832, 30 S. Ct. 532, affirm- 31 S. Ct. 554. ing National Bank v. Commonwealth, 9 423-39a. Bank z'. Kentucky, 207 U. S. Wall. 353, 19 L. Ed. 701; Van Slyke v. 258. 52 L. Ed. 197, 28 S. Ct. 82. Wisconsin, 154 U. S. 581. 20 L. Ed. 240, 427-61. Citizens Nat. Bank v. Ken- 14 S. Ct. 1168, and Aberdeen Bank v. Che- lucky, 217 U. S. 443, 54 L. Ed. 832, 30 S. halis County, 166 U. S. 440, 41 L. Ed. 1069, Ct. 532, following Owensboro Nat. Bank 17 S. Ct. 629. 1168 Vol. XI. TAXATION. 440 iii. Tax on Foreign Held Shares. — See post, "Assessment of Back Taxes and Reassessments," VI, A, 4, g. cc. Franchise or Intangible Property. — See note 12. dd. Resisting Reassessment. — Equity will not enjoin a reassessment of a tax on the stock and real property of a national bank because of the apprehen- sion that Rev. St. U. S., § 5219 (U. S. Comp. St. 1901, p. 3502), will be vio- lated by the assessing officer in making the assessment. ^^^ 440-12. Citizens Xat. Bank v. Ken- tucky, 2ir U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532, following Owensboro Nat. Bank t: Owensboro, 173 U. S. 664, 43 L. Ed. 850, 19 S. Ct. 537. 440-12a. First Xat. Bank v. Albright, 208 U. S. 548, 52 L. Ed. 614, 28 S. Ct. 349, affirming 86 P. 548. The bill alleged that the plaintiff gave the assessor a list in which capital stock, surplus, and real estate were lumped in a single item with a single valuation of S90.000. Thereupon the assessor made a dilYerent valuation, lumping the capital stock and valuing it at 60 per cent of its par value, and giving separate figures for the surplus and the several parcels of real estate, the total being $150,542. This was affirmed by the territorial board on equal- ization on appeal. Afterwards the plain- tiff paid the amount admitted by it to be due, and was sued for the residue; but the suit was dismissed, the district at- torney giving out that a new assessment would be made. It is alleged that the as- sessor, announced as his inethod of valu- ation that all the property except bank property and bank shares would be as- sessed at one third of its real value, but that he would assess the bank at 60 per cent of the capital stock and surplus in addition to their real estate; that he did as he announced, and also assessed the real estate without dediicting the value "from the valuation of other property as- sessed against said banks." Beside the prayer for an injunction, there is another that the treasurer and ex officio collector be ordered to cancel the above-mentioned assessment upon his books. There was a demurrer, which was overruled below, but sustained by the supreme court of the territory with directions to dismiss the complaint. First X'at. Bank z: Albright, 208 U. S. 548, 52 L. Ed. 614, 28 S. Ct. 349. "The complaint admits that the plain- tiflf's return was not in accordance with the law, and the supreme court of the territory says that both that and the as- sessment were bad, and that a reassess- ment is authorized by local law. We see no reason to reverse its decision upon that point. If a reassessment is made, that now on the treasurer's books will be disposed of and will be no cloud upon the plaintiff's title, so that the whole ques- tion is whether a reassessment shall be made. The plaintiff's objection is not the technical one that no reassessment is au- thorized by statute, but the substantial apprehension that the shares will be taxed "at a greater rate than is assessed upon other moneyed capital in the hands of in- dividual citizens,' contrary to the words of Rev. Stat., § 5219, U. S. Comp. Stat. 1901, p. 3502, and that the value of real estate separately assessed and taxed will not be deducted from the valuation of shares, as it is thought to be implied by that section and required by the territo- rial laws of 1891, chap. 40 (Comp. Laws, 1897, § 259), that it should be.'' First Xat. Bank v. Albright, 208 U. S. 548, 52 L. Ed. 614, 28 S. Ct. 349. "We assume that such an assessment of shares as is apprehended would be in- valid under Rev. Stat., § 5219. First X'^at. Bank v. Chapman, 173 U. S. 205, 220, 43 L. Ed. 669, 19 S. Ct. 407. We assume that it would be invalid none the less if dis- guised as a tax on 60 per cent of the par value, if other monej^ed capital was uni- formly and intentionally assessed at one- third of its actual value and if 60 per cent of the par value of the bank shares was more than one-third of their actual value. Accidental inequality is one thing, inten- tional and systematic discrimination an- other. See, further, Ravmond z'. Chicago, Union Tract. Co.. 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7. We agree with the plain- tiff that the only taxes contemplated bj- § 5219 are taxes on the shares of stock and taxes on the real estate. Owensboro X'at. Bank v. Owensboro, 173 U. S. 664, 669, 43 L. Ed. 850, 19 S. Ct. 537. Hence, while the law does not consider the na- ture of the bank's investments not taxed in fixing the value of its stock (Palmer z: Mc^Mahon. 133 U. S. 660, 33 L. Ed. 772, 10 S. Ct. 324), it may be argued consist- ently with the decisions that real estate taxed to the bank, and land out of the territory, which could not be taxed by it at all (Union Refrigerator, etc., Co. v. Kentucky, 199 U. S. 194, 50 L. Ed. 150, 26 S. Ct. 36), are meant to be deducted by Rev. Stat., § 5219, and are required to be by the territorial law. But we agree with the supreme court of the territory that the time for deciding these and other questions has not come.'' First X'at. Bank z: Albright. 208 U. S. 548, 52 L. Ed. 614, 28 S. Ct. 349. "The acceptance of what was admitted to be due created no estoppel to demand more. There are no such precise aver- ments in the complaint as would warrant 12 U S Enc- 1169 444-463 TAXATION. Vol. XL (d) Federal Taxation of Banks. — See post, "Taxation of Circulation," IV, C, 3, a, (2), (e). (2) Mode of Taxation — (e) Taxation of Circulation. — Purpose. — The half- yearly duty provided by § 5214 was intended, among other things, at least, to create a general fund for paying the cost of engraving and printing the circulating notes of national banking associations.32a Exemption. — A national bank whose outstanding circulating notes amount to less than 5 per cent of its capital is not exempted from the payment of the half-yearly duty imposed by- Rev. St. U. S., § 5214 (U. S. Comp. St. 1901 ,_ p. 3500), upon the average amount of its notes in circulation, by the provision of § 3411 (page 2248) that the outstanding circulation of any bank, associa- tion, corporation, company, or person shall be free from taxation when re- duced to an amount not exceeding 5 per cent of its capital, although the latter section is by § 3417 (page 2251) expressly made applicable to national banking associations, since it was so made applicable, as clearly appears from the legis- lation from which its provisions were drawn, in order to give national banks representing state banks the benefit of the presumption of loss or inability to retire the circulation of the state bank when 95 per cent thereof had been actually retired.^^'' j. Foreign Corporations. — See note 66. D. Federal, State and Municipal Securities — 2. State and Municipal Securitii;S. — See note 76. F. Imports and Exports — 2. By the States — b. Under Prohibition to States to Tax Imports and Exports — (7) Foreign Warehouse Receipts. — A state can not tax German warehouse receipts, valuing them at the value of the whisky they represent, where it can not tax the whisky itself either because it was exported from the United States or because of its situs. ^^^ H. Lands and Interests Therein — 1. Lands in General.— A tax on special interests in land is not unknown, ^^^ but the usual course is to tax the land as a whole and that seems to be the way in New York.^^*' 2. Public Lands of the United States — b. Public Lands Not Granted. — A state is without power to tax public lands of the United States until the equitable title has passed from the United States, and that title does not pass our assuming that no assessment could 451-66. Darnell & Son Co. z'. Memphis, be made for a further amount, still less 208 U. S. 113, 52 L. Ed. 413, 28 S. Ct. 247, that none in any form could be made, approving New York v. Roberts, 171 U. when there is no valid one upon the books. S. 658, 43 L. Ed. sSs, 17 S. Ct. 58. We can not tell, and much more positive 453-76. A city can not tax its corporate averments of intent than those before us stock or pul^lic debt owned by nonresi- would not warrant a court in prejudging, dents. No municipality of a state can, by what the assessing officer will do. It is its own ordinances, under the guise of not for a court to stop an officer of this taxation, relieve itself from performing kind from performing his statutory duty to the letter all that it has expressly for fear he should perform it wrongly. promised to its creditors. Orient Ins. The earliest moment for equity to interfere Co. -■. Board. 221 U. S. 358, 55 L. Ed. 769, is when an assessment has been made. 31 S. Ct. 554. Probably it will be made with caution. 462-22a. Foreign warehouse receipts. — after this case." First Nat. Bank v. Al- ludgment (1907), Commonwealth z>. Sel- bright. 208 U. S. 548, 52 L. Ed. 614, 28 S. "liger, 98 S. W. 1040, 39 Ky. Law Rep. 451, Ct. 349. reversed. Selliger z\ Kentucky, 213 U. S. 444-32a. P u r p o s e.— Merchants Nat. 200, 53 L. Ed. 761, 29 S. Ct. 449. Bank v. United States, 214 U. S. 33, 53 L. 463-25a. Paddell v. New York, 211 U. Ed. 900, 29 S. Ct. 593. approving Twin S. 446, 53 L. Ed. 275, 29 S. Ct. 139, citing City Bank v. Nebeker, 167 U. S. 196. 42 L. Baltimore Shipbuilding, etc.. Co. z: Bal- Ed. 134. 17 S. Ct. 766. timore, 195 U. S. 375, 381. 49 L. Ed. 242, 444-32b. Exemption. — Merchants Nat. 25 S. Ct. 50. Bank v. United States, 214 U. S. 33. 53 L. 463-25b. Paddell v. New York, 211 U. Ed. 900, 29 S. Ct. 593, affirming 42 Ct. CI. 6. S. 446, 53 L. Ed. 275, 29 S. Ct. 139. 1170 Vol. XL TAX ATI OX 463-465 until there is a full compliance with all the conditions upon which the right to a patent depends. ^'^ Location of Military Bounty Warrant. — The equitable title to the land did not pass from the United States, so as to make it liable to state taxation, upon the location of the military bounty land warrant, issued under the Act of I\Iarch 3, 1855, c. 207, 10 Stat. 701, by one who was not the lawful owner and holder of such warrant, since such location did not operate as a payment of the purchase price, which was essential to the right to a patent.-'^'' c. Public Lands after Entry or Grant but before Issue of Patent — (2) Min- eral Lands. — A mere possessory right in a mining claim in land to which the United States has title is a right separate from the fee, and may be taxed under a state statute, although the fee can not, because it is in the 'government.^'^^ (3) Railroad Grants. — Agreement Not to Tax for a Term. — See note 41. 3. Interests of Lessee. — Interest of Lessee of Lessor Having Exemp- tion from Taxation. — See post, "Taxation of Interest of Lessee," V, D, 5, b. Lessee of Municipality. — See post, "In General," V, C, 1, a. 463-27a. Sargent v. Herrick, 221 U. S. 404, 55 L. Ed. 787, 31 S. Ct. 574, citing Wisconsin Cent. R. Co. i-. Price County, 133 U. S. 496, 505, 33 L. Ed. 687. 10 S. Ct. 341. 463-27b. Sargent v. Herrick, 221 U. S. 404, 55 L. Ed. 787, 31 S. Ct. 574, reversing decree (1908), Herrick & Stevens v. Sar- gent & Lahr, 117 N. W. 751, 140 Iowa. 590, 132 Am. St. Rep. 281. "The case of Hussman v. Durham. 165 U. S. 144, 41 L. Ed. 664, 17 S. Ct. 253, is like this in all material respects, the most noticeable difference l)eing that there the assignment to the locator was forged, while here it was ineffectual because of a prior assignment. In that case this court, after holding, in substance, that the doctrine of relation can not be invoked to give effect to a title resting upon the wrongful taxation of land while both the legal and the equitable title were in the United States, said: 'Confessedly, though a formal certificate of location was issued in 1858. there was then in fact no payment for the land, and the government received nothing until 1888. During these inter- vening years, whatever might have ap- peared upon the face of the record, the legal and equitable title both remained in the government. The land was there- fore not subject to state taxation. Tax sales and tax deeds issued during that time were void. The defendant took nothing by such deeds. No estoppel can be invoked against the plaintiff. His ti- tle dates from the time of payment in 1888. The defendant does not hold un- der him, and has no tax title arising sub- sequently thereto.' " Sargent v. Herrick. 221 U. S. 404. 55 L. Ed. 787. 31 S. Ct. 574. 465-37a. Elder 7: Wood, 208 U. S. 22ri, 52 L. Ed. 464. 28 S. Ct. 263; Jetton v. Uni- versity, 208 U. S. 489, 52 L. Ed. 584. 28 S. Ct. 37'5. Lands of the United States are not taxed in violation of Act March 3. 1875. c. 139, § 4, 18 Stat. 474, by the imposition. under the authority of Colo. Laws 1887, pp. 340, 341, §§ 1-5, of a tax upon the right of possession, for mining purposes, of a lode mining claim, and the enforcement of the collection of such tax by a sale of such right of possession. Judgment, Wood c'. McCombe (1906), 86 P. 319, 37 Colo. 174, affirmed. Elder v. Wood, 208 U. S. 226. 52 L. Ed. 464, 28 S. Ct. 263. "Such an interest from early times has been held to be property, distinct from the land itself, vendible, inheritable, and taxable. Forbes v. Gracev. 94 U. S. 762. 24 L. Ed. 313; Belk v. Meagher, 104 U. S. 279, 283, 26 L. Ed. 735; Manuel v. Wulff, 152 U. S 505, 510, 38 L. Ed. 532, 14 S. Ct. 651; St. Louis Min., etc., Co. v. Montana Min. Co., 171 U. S. 650, 655, 43 L. Ed. 320, 19 S. Ct. 61: 1 Lindley, Mines, §§ 535 to 542, inclusive. The state, therefore, had the power to tax this interest in the min- ing claim and enforce the collection of the tax by sale. The tax deed conveyed merely the right of possession and af- fected no interest of the United States." Elder z: Wood, 208 U. S. 226. 52 L. Ed. 464, 28 S. Ct. 263. 465-41. The case of Stearns v. Minne- sota. 179 U. S. 223, 253, 45 L. Ed. 162, 21 S. Ct. To. Involved only the question whether certain lands owned by the de- fendant railroad companies, but which were not used in the operation of their roads in the state, were subject to taxa- tion according to their value, or were ex- empted from ordinary rule of taxation by virtue of statutes, passes after the state constitution took effect, and the court held upon the showing there made, that there was a valid contract with the rail- road companies in respect to the taxation of the lands there in question which it was beyond the power of the state to im- pair by legislation. Nothing beyond that was actually adjudged in the Stearns Case. Great Northern R. Co. v. Minne- '^ota. 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. :{44. 1171 467-473 TAXATIOX. Vol. XL 4. Mortgaged Property. — Land subject to a mortgage may be assessed at its full value for taxation without violating Const. U. S., Amend. 14, although the mortgage debt is not deducted from the owner's personal estate. "^'^ I. Money and Deposits in Bank. — ]\Ioney which one has in the bank is not exempt from taxation because it was derived from his salary as a federal officer ; it losing its identity as salary when it has been paid to him and come into his possession.^^^ Q. Distilled Spirits in Bonded Warehouse. — The taxation of distilled spirits in bonded warehouses in the state, provided for by Act Ky. March 29, 1902 (Acts 1902, p. 226, c. 102), under which the warehouseman is made lia- ble for the tax and is given a lien on the property for the amount paid, is within the power of the state, where the legislation does not contemplate the collection of the taxes so long as the spirits are in the custody or under the lien of the federal government. '^"*^ V. Exemptions from Taxation. A. Definitions and Distinctions. — See note 68. B. Power to Grant Exemptions — 1. Power of State Legislatures — a. In General. — See notes 72, 7o. 3. Power of Municipalities. — It can no longer be doubted that a municipal corporation, acting under its authority, may deprive itself by contract of the power to exercise a right conferred by law to collect taxes or license fees.^^* 467-51a. Judgment (1907), 8 N. E. 1114, 187 N. Y. 552, affirmed. Paddell v. New York, 211 U. S. 446. 53 L. Ed. 275, 29 S. Ct. 139. 467-52a. Judgment (1908), 83 N. E. 6, 197 Mass. 99, 125 Am. St. Rep. 330, af- firmed. Dyer v. Melrose, 215 U. S. 594, 54 L. Ed. 341, 30 S. Ct. 410. 469-64a. Judgment (1906), 94 S. W. 654, 29 Ky. Law Rep. 705, affirmed. Thomp- son V. Kentucky, 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533. "The scheme of the statute is simple, and it is an exercise of the power which, we said in Carstairs v. Cochran, 193 U. S. 10, 16. 48 L. Ed. 596, 24 S. Ct. 318, the state undoubtedly possessed, 'to tax pri- vate property having a situs within its ter- ritorial limits.' And this was said in re- sponse to contentions having the same ultimate foundation as those urged in the case at l:)ar. The proposition was indeed considered as elemental, and as requiring nothing more than the illustration of cases. There may be instances where property, though within the territorial limits of a state, is not subject completely to the jurisdiction of the state, and coun- sel has cited a number of such instances. Where their example applies they will be followed. It does not apply in the pres- ent case. There is no conflict between the state and federal purpose. There is no question of the supremacy of the lat- ter and its complete fulfillment. 'The .'■tate does not propose,' the court of ap- peals said, 'to collect the taxes so long as the spirits are in the custody or tmder the lien ol the federal government.' There is actual accommodation, therefore, of the power of the state to the rights of the federal government, and a harmonious exercise of the respective sovereignties of each, preserving to each necessary power. This is what Carstairs v. Coch- ran decides. See, also, Baltimore Ship- building, etc., Co. V. Baltimore, 195 U. S. 375, 49 L. Ed. 242, 25 S. Ct. 50." Thorrtp- son V. Kentucky, 209 U. S. 340, 52 L. Ed. 822, 28 S. Ct. 533. 470-68. "Especial Privilege." — A terri- torial statute giving perpetual succession to an incorporated educational institu- tion, and endowing it with a perpetual ex- emption from taxation as to all its prop- erty, real and personal, grants an especial privilege within the meaning of the pro- visions of the Washington Organic Act of :\Iarch 2, 1867, that the territorial leg- islature shall not grant private charters or especial privileges, but may enact gen- eral incorporation acts. Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. 470-72. A state, acting under its author- ity, may deprive itself by contract of the power to tax. St. Louis v. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 471-73. A state legislature, unless re- strained by state constitutional provisions, may contract to limit its power of taxa- tion. Great Northern R. Co. v. Minne- sota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344. 473-82a. Municipalities. — St. Louis v. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 1172 Vol. XI. TAXATION 473-474 C. Rules of Construction — 1. Statutes Exempting Property — a. In General. — See note 83. Where one relies upon an exemption from taxation, both the power to exempt and the contract of exemption must be clear. Any doubt or ambiguity must be resolved in favor of the public. ^^'^ Words of Restriction Found in Fundamental Law. — The rule of strict construction is just as applicable when determining whether words of restric- tion found in the fundamental law are intended to operate as a limitation on the legislative power to grant contract exemptions from taxation as where the question is whether the particular terms of an alleged contract did or did not embrace an exemption from taxation. "^■*^ It must be expressed in words so clear and explicit as to leave no reasonable doubt that the exemption was intended to be given. It can not be inferred from uncertain phrases or am- biguous terms. ^5* Charter of Street Railway Company. — An inviolable contract between a municipality and street railwa}" companies which will prevent the exaction of a license tax under an acknowledged power of the municipality is not cre- ated by ordinances passed in the exercise of authority to grant the use of the streets, under which the companies have agreed to pay certain sums for the use of such streets for a given period, w^here such ordinances do not expressly relinquish the right to exact license fees or taxes. ■^'^^ It is not sufficient that 473-83. Berryman 7: Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147; St. Louis r. United R. Co.. 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 473-83a. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548. 31 S. Ct. 465; St. Louis V. United R. Co.. 210 U. S. 266, 52 L. Ed. 1054. 28 S. Ct. 630. 473-84a. Berryman v. Board. 222 U. S. 334. 56 L. Ed. 225, 32 S. Ct. 147. reversing: decree (C. C. 1907) Board of Trustees of Whitman College t'. Berryman, 156 F. 112. 474-85a. Great Northern R. Co. v. Min- nesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344: St. Louis v. United R. Co.. 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. An intention to exempt from a fran- chise tax can not be gathered froin the provisions of a railway charter that its income is lawfully chargeable with cer- tain specified expenses and with "every other cost and charge properly or neces- sarily connected with the maintenance and operation of said railway," with dividends and with a sinking fund, and that the ex- cess of income shall be divided equally between the government and the stock- holders, where a subsequent provision ex- empts the property from taxation while under construction, "provided that, as fast as completed and equipped, the completed and equipped portion shall become liable to such taxation," although, when the charter was granted, real and personal property were, under Haw. Rev. Laws 1905, § 1216, assessed for taxation "sep- arately as to each item thereof for its full value." Honolulu, etc.. Land Co. :•. Wilder, 211 U. S. 137. 53 L. Ed. 121. 29 S. Ct. 44. 474-86a. Charter of street railway com- pany.— St. Louis V. United R. Co.. 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. A leading case is New Orleans, etc., R. Co. V. New Orleans, 143 U. S. 192, 36 L. Ed. 121, 12 S. Ct. 406. In that case the city of New Orleans, on October 2, 1879, sold to the New Orleans City Railroad Company, assignor of the plaintiff in er- ror, for the price of $630,000, the right of way and franchises for running certain lines of railroad for carrying passengers within the city, for the term of twenty- five years, and the company agreed to construct its railroad, to keep the streets in repair, to comply with the regulations as to the style and running of cars, rates of fare, and motive power, and to annu- ally pay into the city treasury, upon the assessed value of the road and fixtures, the annual tax levied upon the real es- tate, the value of the road and fixtures to be assessed by the usual mode of assess- ment. .Afterwards, in the year of 1887, under authority of a legislative act, the city imposed a license tax upon the busi- ness of carrying on, operating, and run- ning a horse or steam road for the trans- I)ortation of passengers within the limits of the city, payable annually, and based on the annual gross receipts; when the same exceeded $500,000, the amount to be S2,500. The railroad company admitted its receipts exceeded that sum, and claimed the protection of the constitution of the United States for its franchise contract extending to January 1, 1906, as above set forth. This would seem to be as strong a case for the exemption from the license tax as could he made, short of a specific agreement binding the city not to exercise its power in that direction. This court afifirmed the judgment of the su- preme court of Louisiana, denying the contention of the railroad company. St. Louis V. United R. Co., 210 U. S. 266, 52 1173 474 TAXATION. Vol. XI. a street railway company has agreed to pay for the privilege of using the streets for a given term, either in a lump sum, or by payments in installments, or percentages of the receipts to thereby conclude the municipality from exercis- I,. Ed. 1054, 28 S. Ct. 630, distinguishing Gordon v. Appeal Tax Court, 3 How. ]32, 11 L. Ed. 529. "The case at bar can not be distin- guished from that of Memphis Gas Light Co. V. Taxing Dist., 109 U. S. 398, 400, 27 L. Ed. 976, 3 S. Ct. 205, in which this court upheld a license tax upon a corpora- tion which had acquired by its charter the privilege of erecting gasworks and making and selling gas for fifty years; and speaking by Mr. Justice Miller, said; "The argument or counsel is that, if no express contract against taxation can be found here, it must be implied, because to permit the state to tax this company by a license tax for the privilege granted by its charter is to destroy that privilege. But the answer is that the company took their charter subject to the same right of taxa- tion in the state that applies to all other privileges and to all other property. If they wish or intended to have an exemp- tion of any kind from taxation, or felt that it was necessary to the profitable working of their business, they should have required a provision to that eflfect m their charter." The constitution of the United States does not profess in all cases to protect property from unjust and oppressive taxation by the states. That is left to the state constitution and state laws. St. Louis v. United R. Co.. 210 U. S. 266, 52 L. Ed. 1054. 28 S. Ct. 630. "This case was but an affirmation of the doctrine announced in Railway Co. v. Philadelphia, 101 U. S. 528, 29 L. Ed. 912; The Delaware R. Tax, 18 Wall. 206, 21 L. Ed. 888. The New Orleans case was quoted with approval, and the former cases in this court reviewed in the recent case of Metropolitan St. R. Co. v. New York State Board, 199 U. S. 1, 50 L. Ed 65, 25 S. Ct. 705. In that case the deci- sion of the New York circuit court of ap- peals was affirmed, sustaining the right of the state of New York to tax franchises of street railway companies, notwith- standing the railway companies had al- ready paid for the right to construct, maintain, and operate and use street rail- roads in consideration of payment into the treasury of the city of New York of a percentage of their gross receipts." St. Louis V. United R. Co., 210 U. S. 266, 52 L. E.d. 1054, 28 S. Ct. 630. "In that case Mr. Justice Brewer, who spoke for the court, said (pp. 37, 38): 'Ap- plying these well-established rules to the several contracts, it will be perceived that there was no express relinquishment of the right of taxation. The plaintiff in error must rely upon some implication, and not upon any direct stipulation. In each contract there was a grant of priv- ileges, but the grant was specifically of privileges in respect to the construction, operation, and maintenance of a street railroad. These were all that in terms were granted. As consideration for this grant, the grantees were to pay some- thing, and such payment is nowhere said to be in lieu of, or as an equivalent or substitute for, taxes. All that can be ex- tracted from the language used was a grant of privileges and a payment there- for. Other words must be written into the contract before there can be found any relinquishment of the power of taxa- tion.' " St. Louis V. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. "Many state authorities have reached the same conclusion. We will refer to some of them: Springfield v. Smith, 138 I\Io. 645, 37 L. R. A. 446, 60 Am. St. Rep. 509, 40 S. W. 757; Wyandotte v. Corrigan, 35 Kan. 21, 10 Pac. 99; State ex rel. Cream City R. Co. V. Hilbert, 72 Wis. 184, 39 N. W. 326; Newport News & O. P. & Elec- tric Co. V. Newport News, 100 Va. 157, 40 8. E. 645; New Orleans v. New Orleans R. Co., 42 La. Ann. 4, 21 Am. St. Rep. 365, 7 So. 59; New Orleans v. New Orleans City & Lake R. Co., 40 La. Ann. 587, 4 So. 512; San Jose v. San Jose & S. C. R. Co., 53 Cal. 475, 481; State v. Herod, 29 Iowa, 123." St. Louis V. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. "The city in granting the right to use the streets by special ordinance and in exercising by general ordinance the right conferred in the charter to impose a li- cense tax upon cars, is dealing with rights and privileges somewhat similar, but nev- ertheless, essentially separate and dis- tinct. In the special ordinances the city is making an arrangement with the rail- way company to confer the right to use the streets in consideration of certain things the company is to do by way of operation and, otherwise, including, it may be, payment of fixed sums or a pro- portion of receipts in consideration of the rights and privileges conferred. The city does this by virtue of its power to grant rights and privileges and control their ex- ercise in the streets of the city; power ex- pressly conferred in the character of the citv." St. Louis V. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. "In the fixing of a license tax upon all companies alike for the privilege of using cars in the city, it is exerting other char- ter powers. It makes provision uniformly applicable to all persons or companies using street cars. It is a revenue measure equally applicable to all coming within its -terms. We do not perceive that the 1174 Vol. XL TAXATION. 474-478 ing a statutory authority to impose license fees or taxes. This right still ex- ists unless there is a distinct agreement, clearly expressed, that the sums to be paid are in lieu of all such exactions.**^'' Lessee of Municipal Lessor. — A contract exemption from municipal tax- ation can not be deduced from the covenant of a perpetual leaseholder with his municipal lessor to pay all the public taxes which shall become due on the land, although the municipality possessed no power of taxation when the lease was made.^'"^ c. PrcsiDHpt'wns and Burden of Proof — (1) Presumptions. — See notes 92, 94. d. Implied Exemptions — (1) In General. — See note 96. Deprivation of the power to tax can only follow when the state or a municipality has concluded itself by the use of clear and unequivocal terms. The existence of doubt in the interpretation of the alleged contract is fatal to the claims of an exemption. ^6* (2) Effect of Silence of Charter as to Exemption. — See note 97. exercise of the power to grant privileges ill the streets in making terms with com- panies seeking such rights, in the absence of plain and unequivocal terms to that ef- fect, excludes the city's right to impose the license tax under the power confer- red for that purpose." St. Louis v. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. This is virtually decided by the rule laid down in New Orleans, etc., R. Co. v. New Orleans, 143 U. S. 192, 36 L. Ed. 121, 12 S. Ct. 406, '"which holds that because a street railway company has agreed to pay for the use of the streets of the city for a given period, it does not thereby create an inviolable contract which will prevent the exaction of a license tax un- der an acknowledged power of the city, unless this right has been specifically surrendered in terms which admit of no other reasonable interpretation." St. Louis V. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 474-86b. St. Louis v. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 476-90a. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465, affirming judgments (1908) Citv of Norfolk v. J. W. Perry Co., 61 S. E. 867, 108 Va. 28, and (1908) Same v. White, 61 S. E. 870, 108 Va. 35. "Even if the borough could have made a valid contract of exemption in 1792, there is nothing to show that it did so. On the contrary, the provision that the lessee was to 'pay public taxes' was sufficiently comprehensive to embrace municipal taxes whenever they could thereafter be lawfully assessed on land or the improve- ments which were a part of the land. * * * Here there is not only no language of exemption, but a positive agreement on the part of the lessees to pay public taxes on the land. In compelling them to do so, the contract is enforced instead of impaired." Perry Co. v. Norfolk, 220 U. S. 472. 55 L. Ed. 548, 31 S. Ct. 465. 477-92, 94. As taxation is essential to the existence and operations of government, an exemption from ta.xes can not be pre- sumed from doubtful language, but must be expressed in words so clear and ex- plicit as to leave no reasonable doubt that the exemption was intended to be given. Great Northern R. Co. z'. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344. "Exemption from taxation is never to be presumed. The legislature itself can not be held to have intended to surrender the taxing power, unless its intention to do so has been declared in clear and un- mistakable words. Vicksburg, etc., R. Co. V. Dennis, 116 U. S. 665, 668, 29 L. Ed. 770. 6 S. Ct. 625." . St. Louis v. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630, quoting New Orleans, etc., R. Co. v. New Orleans, 143 U. S. 192. 36 L. Ed. 121, 12 S. Ct. 406. "The only point decided in Gordon V. Appeal Tax Court, 3 How. 132, 11 L. Ed. 529, was that an act of the legis- lature, continuing the charter of a bank, upon condition that the corporation .should pay certain sums annually for pub- lic purposes, and declaring th^t, upon its accepting and complying with the provi- sions of the act, the faith of the state was pledged not to impose any further tax or burden upon the corporation during the continuance of the charter, exempted the stockholders from taxation on their stock; so much of the opinion as might, taken by itself, seem to support the prop- osition that exemptions from taxation will be presumed, has been often ex- plained or disapproved. Piqua Branch v. Knoop, 16 How. 369, 402, 14 L. Ed. 977; People V. Commissioners, 4 Wall. 244, 259, 18 L. Ed. 344; JefTerson Branch Bank 7/. Skelly, 1 Black 436, 446, 17 L. Ed. 173; Farrington v. Tennessee, 95 U. S. 679, 694, 24 L. Ed. 558; Railroad Comm. Cases, 116 U. S. 307, 328, 29 L. Ed. 636. 6 S. Ct. 334." St. Louis r. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 478-96. St. Louis v. United R. Co., 210 U. S. 266. 52 L. Ed. 1054, 28 S. Ct. 630. 478-96a. St. Louis 7-. United R. Co.. 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 478-97. St. Louis 7-. United R. Co., 210 U. S. 266, 52 L. Ed. 1054, 28 S. Ct. 630. 1175 479-484 TAXATION. Vol. XL f. Act of Congress Ratifying Territorial Grant of Franchise. — Franchises granted by the Hawaiian government between July 7, 1898, and September 28, 1899, were not made acts of congress by adoption, so as to be exempt from territorial taxation, by the provision of the organic act April 30, 1900, c. 339, § 73, 31 Stat. 141, 154, ratifying and affirming such franchises.-^ g. Exemption of Indian Allotments. — Liberal Construction. — Any doubt as to whether the tax exemption provision in the Act of June 28, 1898, allot- ting lands in severalty to the members of the Choctaw and Chickasaw tribes, was a personal privilege, and repealable, or an incident attached to the land itself for a limited period, must be resolved in favor of the patentees. ^"^ Effect of Grant. — A tax exemption, and not merely an additional guard against alienation, which would fall when the restrictions on alienation were removed, was made by the Act of June 28, 1898 (30 Stat, at L. 505, chap. 517), under which the lands allotted in severalty under that act to the members of the Choctaw and Chickasaw tribes were subjected to various restrictions on alienation, and were to be nontaxable while the title remained in the original allottees.-*^ D. Impairment of Obligation of Contracts — 1. In General. — See note 4. 5. Exemption Granted Owner of Land — a. In General. — A state can not impair an immunity from taxation lawfully granted an owner of land.^^^ b. Taxation of Interest of Lessee. — As long as different interests may exist in the same land, it is plain that an exemption granted to the owner of the land in fee does not extend to an exemption from taxation of an interest in the same land, granted by the owner of the fee to another person as a lessee for a term of years. The two interests are totally distinct, and the exemption of one 'from taxation plainly does not thereby exempt the other.^^'' The con- tract exemption from taxation granted to the L^niversity of the South by its charter of January 6, 1858, as amended January 19, 1858; to continue as long as the land so exempted belongs to that institution, is not impaired by taxing;, under the authority of the Tennessee Act of January 10, 1903, chap. 258, § 5, the interest of the lessees of such land under leases from the university for a term of years, i^° which inter alia require the lessees to pay the rent specified 479-2a. Honolulu, etc.. Land Co. v. 484-19a. Jetton v. University, 208 U. S. Wilder. 211 U. S. 137, 53 L. Ed. 121, 29 S. 489, 52 L. Ed. 584. 28 S. Ct. 375. Ct. 44. 484-19b. Taxing interest of lessee. — Jet- 479-2b. Exemption of Indian allot- ton v. University, 208 U. S. 489, 52 L. Ed. ments.— Choate v. Trapp, 224 U. S. 665, 584, 28 S. Ct. 375. 56 L. Ed. 941, 32 S. Ct. 565; Gleason v. 484-19c. Jetton v. University, 208 U. S. Wood, 224 U. S. 679, 56 L. Ed. 947, 32 S. 489, 52 L. Ed. 584, 28 S. Ct. 375. Ct. 571. "The exemption lasts only so long as 479-2C. Effect of grant. — Choate f. the university owns the lands, and. when Trapp, 224 U. S. 665, 56 L. Ed. 941. 32 S. it conveys a certain interest in them to a Ct. 565; Gleason v. Wood, 224 U. S. 679, third person, it no longer owns that in- 56 L. Ed. 947, 32 S. Ct. 571. terest, which at once becomes subject to 480-4. Exemption of Indian lands. — Tn the right of the state to tax it. Wheii New Jersey v. Wilson, 7 Cranch 164, 3 L. the state exercises that right, as it did Ed. 303, "the exemption was assumed to under the Act of 1903, and taxes the in- be absolute, unconditional, and unlimited terest in the name of its owner, the in time. It seems that there was an act state thereby violates no contract, and (that of 1796) which authorized the lands the tax is valid." Jetton v. University, to be leased, but that act was not brought 2©8 U. S. 489, 52 L. Ed. 584, 28 S. Ct. 375. to the attention of the court. See Given "What is the exact interest of the V. Wright, 117 U. S. 648, 655, 29 L. Ed. lessee in the land leased to him it is not 1021, 6 S. Ct. 907, where a more full his- necessary to here determine. It is plain tory of the case is given. The act repeal- that he has some interest in it, and that ing the exemption, passed after the sale interest is distinct from the fee, and may of the lands by the Indians, was held void h& raxed when the fee is exempt from because it impaired the obligations of the taxation.'' Jetton v. University, 208 U. contract." Jetton v. University, 208 U. S. S. 489, 52 L- Ed. 584. 28 S. Ct. 375. 489, 52 L. Ed. 584, 28 S. Ct. 375. Ownership of improvements.— Whether 1176 \'ol. XI. TAXATION 484 and "all taxes and assessments upon said premises," and reserve the right of re-entry for a covenant broken, i'-^*^ although, when the exemption was granted, the state had not provided for taxation of the interest of a lessee in his own name.^'-^^ The obligations of the contract remain precisely as they were prior to its passage. The change wrought by the act affected third persons only (the lessees of real estate), and, instead of leaving them to be taxed in tlie name of their lessor for. their interest in the land as such lessees, the act pro- vided for their separate taxation. ^'^^ The doctrine that laws which are in force when a contract is made will generally enter into its obligations has no ap- plication. ^^^ Not a Tax on Rents or Income. — Such an assessment is not the same in substance as one against the owner in fee of the land. It is not a tax on the rents or income of real estate. ^^^ 6. Exemption of Indian Allotments. — Choctaw and Chickasaw allottees under the Atoka agreement embodied in the Act of June 28, 1898, under which, in part consideration of their relinquishment of all claim to the tribal property, the lessee "is the owner of the improve- ments made by him until the same are paid for at the same time is not material upon the question of the separate in- terests of the lessee and the owner of the fee, the ownership of the improve- ments being only material upon the question of the value of the interest of the lessee. Even if the university was entitled to become and was the owner of such improvements at the end of the second renewal, without paying for them, the question still remains as to the value of the separate interest of the lessee, which, even upon that assumption, might be greatly more than the rent to be paid. Th^ value of whatever interest he has is to be assessed as real estate under the statute, and that value must be de- termined by the assessing officer. * * * It is a separate and distinct interest from that of the owner of the fee, and the assessment of that interest for taxation is not an assessment upon the interest of the university, and is not a violation of the exemption granted to it by the stat- ute of 1858." Jetton v. University, 208 U. S. 489. 52 L. Ed. 584. 28 S. Ct. 375. 484-19d. Jetton v. University, 208 U. S. 489. 52 L. Ed. 584, 28 S. Ct. 375. "If the interest of the lessee in the land could be sold for nonpayment of the tax assessed thereon, such result would arise from the act of the university in creating it. But the lessor might, un- der the terms of the lease, at once re- enter for nonpayment of taxes." Jetton V. University, 208 U. S. 489, 52 L. Ed. 584. 28 S. Ct. 375. 484-19e. Jetton v. University, 208 U. S. 489. 52 L. Ed. 584, 28 S. Ct. 375. The fact that, at the time when the exemption was granted to the owner of the fee, the state had not provided for taxa- tion against the lessee in his own name, is not important. The difTerent interest of an owner of the fee and an owner of an estate for years, the lessee, existed, and such existence was recognized. An exemption of one did not necessarily in- clude the exemption of the other. The contract of exemption did not imply in the most remote degree that the state would not thereafter, through its legis- lature, so change its mode of assessment as to reach the interest of a lessee di- rectly, and not through the owner of the fee. In so doing the state does not tax the owner of the land in fee nor the fee itself. It taxes what it had a right to tax, a separate and distinct interest in the land, although the fee thereof be in the university, which can not be taxed therefor. Jetton v. University, 208 U. S. 489. 52 L. Ed. 584. 28 S. Ct. 375. 484-19f. Jetton v. University, 208 U. S. 489, 52 L. Ed. 584, 28 S. Ct. 375. 484-19g. Jetton v. University, 208 U. S. 489, 52 L. Ed. 584, 28 S. Ct. 375. 484-19h. Not a tax on rents or income. — Jetton V. University. 208 U. S. 489. 52 L. Ed. 584, 28 S. Ct. 375. "The university receives the rents or income from anj^ tax. The tax is, in both form and substance, upon a separate in- terest in real estate granted by the lessor, and is assessed against the owner of such separate interest. If the uni- versity could lease its lands and could also effectually provide that the interest of the lessee in the land so leased should be exempt from taxation, it may readily be seen that the amount of rent which it would receive would be larger than if no such exemption could be obtained, but that is a matter which is wholly imma- terial upon the question of the impair- ment of the contract of exemption that was really made. That contract can not be extended simply because it would, as so construed, add value to the exemp- tion." Jetton z'. University, 208 U. S. 489, 52 L. Ed. 584, 28 S. Ct. 375. 1177 484-487 TAXATION. Vol. XI. they were to receive allotments of the lands in severalty, which were to be nontaxable for a specified period while the title remained in the original allot- tees, acquired vested rights of exemption from state taxation, protected by U. S. Const., 5th Amend., from abrogation during that period, as was attempted by the Act of May 27, 1908 (35 Stat, at L. 312, chap. 199), removing the restrictions upon alienation, and providing that lands from which such restric- tions had been removed should be subject to taxation.!^' F. Transfer of Immunity from Taxation — 1. Right of Owner to Transfer Exemption. — See note 31. A contract exemption from taxation is so exceptional in its nature that the right to transmit it is not embraced in the general authority to transmit privileges, and therefore the power to transfer must be expressly and specially conferred." ^^ 3. Effect of Consoudation or Sai^e of Corporation Enjoying Exemp- tion. — See note 35. A contract exemption from taxation does not survive a purchase by the state at a sale on foreclosure of the property and franchises of a railway company; and a subsequent grant by the state, made when the 484-19i, Choate v. Trapp, 224 U. S. G65, 56 L. Ed. 941, 32 S. Ct. 565; Gleason v. Wood, 224 U. S. 679, 56 L. Ed. 947, 32 S. Ct. 571. 486-31. Immunity from taxation a per- sonal privilege. — Great Northern R. Co. V. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344, affirming the following cases: Morgan v. Louisiana, 93 U. S. 217, 23 L. Ed. 860; Chesapeake, etc., R. Co. V. Miller, 114 U. S. 176, 29 L. Ed. 121, 5 S. Ct. 813; Covington, etc.. Road Co. V. Sandford, 164 U. S. 578, 41 L. Ed. 560, 17 S. Ct. 198; Rochester i'. Rochester R. Co., 182 N. Y. 99, 70 L. R. A. 773, 74 N. E. 953 and Memphis, etc., R. Co. v. Railroad Comm'rs, 112 U. S. 609, 28 L. Ed. 837, 5 S. Ct. 299. "A distinction must not be overlooked, when consideiing the assignability of a tax exemption, between those composing a commuted system in lieu of property taxes, and those exempting specific prop- erty. In the former case, the system does not attach to the corporation or concern thus taxed, not to any particular prop- erty, and necessarily is personal, and not assignable. But where * * * specific land is granted to a railroad company to aid in the construction of a railroad, and is specifically exempted from taxation until sold by the company, and the companj' accepts, in consideration of the exemp- tion, the exemption attaches to and follows the land. New Jersey v. Wilson, 7 Cranch 164, 3 L. Ed. 303; State v. Hicks, etc., Co., 4 Tenn. (9 Yerg.) 486; International & G. N. R. Co. v. State, 75 Tex. 356, 12 S. W. 685. In such case * * * the exemption is appurtenant to and passes with the land to a succeeding cor- poration assuming the burden attached to it." Great Northern R. Co. v. Min- nesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344, quoting from the opinion of Minnesota Court. 106 Minn. 303, 119 N. W. 262, and affirming judgment of that court. 486-31a. Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. 487-35. Effect of consolidation or sale of corporation enjoying exemption.-^ Great Northern R. Co. v. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344, affirming Yazoo, etc., R. Co. v. Adams, 180 U. S. 1, 45 L. Ed. 395, 21 S. Ct. 240; Louisville, etc., R. Co. v. Palmes, 109 U. S. 244, 254, 27 L. Ed. 922, 3 S. Ct. 193. "In Memphis, etc., R. Co. v. Railroad Comm'rs, 112 U. S. 609, 623, 28 L. Ed. 837, 5 S. Ct. 299, which was a case in which a railroad claimed an exemption from taxation, enjoyed by its predecessor, this court said: 'It is, of course, the law in force at the time the transaction is consummated and made effectual that must lie looked to as determining its validity and effect. This is the principle on which this court proceeded in decid- ing the case of Railroad Co. v. Georgia, 98 U. S. 359. 25 L. Ed._ 185. The fran- chise to be a corporation remained in, and was exercised by, the old corporation notwithstanding the mortgage of its charter, until the new corporation was formed and organized; it was then sur- rendered to the state, and by a new grant, then made, passed to the corporators of the new corporation, and was held and exercised, by them under the constitu- tional restrictions then existing. * * * That case was referred to with approval in Mercantile Bank v. Tennessee, 161 U. S. 161, 40 L. Ed. 656, 16 S. Ct. 461.'" Great Northern R. Co. v. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344. Foreclosure sale. — Where a corpora- tion enjoys a right of exemption from taxation as to the whole or part of its property, such exemption from taxation does not pass under a foreclosure sale to the purchaser at such sale when by law the rights and privileges of the cor- poration were transferred by the sale. The transmission of the privileges of the corporation to another does not embrace 1178 Vol. XI. TAXATION. 487-489 state constitution prohibited the granting of special privileges with respect to taxation, of all the rights, benefits, privileges, property, franchises, and inter- ests which the state had acquired under its purchase, could not carry such exemption to the grantee.^^^ An exemption from taxation will be denied the consolidated company; when such consolidation was not effected until after a change in the state law forbidding the creation of corporations having im- munities from taxation.-^^^ A contract exemption from taxation, made by a municipality under authority of law, for a valuable consideration, with one of the constituent railway companies does not pass to a consolidated company organized after the adoption by the state of a constitution requiring the prop- erty of corporations to be taxed like that of individuals.^^^ the privilege resulting from a contract exemption from taxation. Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. Sale of railroad under foreclosure. — ■ Great Xorthern R. Co. v. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344, ap- proving Keokuk, etc., R. Co. v. Missouri, 152 U. S. 301, 38 L. Ed. 450, 14 S. Ct. 592; Morgan v. Louisiana. 93 U. S. 217, 23 L. Ed. 860; Louisville, etc., R. Co. v. Palmes, 109 U. S. 244, 27 L. Ed. 922, 3 S. Ct. 193; Yazoo, etc., R. Co. v. Adams, 180 U. S. 1, 23, 45 L. Ed. 395, 21 S. Ct. 240. "In Chesapeake, etc.. R. Co. v. Miller, 114 U. S. 176, 29 L. Ed. 121, 5 S. Ct. 813, a tax immunity was held not to pass un- der a mortgage foreclosure sale, under the provision of a statute which au- thorized the purchaser to become a cor- poration; and succeed to all such fran- chises, rights, and privileges pertaining to the mortgagor company." Wright z\ Georgia R., etc.. Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 243. Sale under decree enforcing statutory lien. — In Picard v. East Tennessee, etc., R. Co., 130 U. S. 637, 642, 32 L. Ed. 1051, 9 S. Ct. 640, it was held that such an immunity would not pass to a purchas- ing coinpany under a decree enforcing a statutory lien, where the sale, as con- firmed, was of the "property and fran- chises" of the mortgagor company. Wright T'. Georgia R.. etc.. Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 487-35a. Sale to state on foreclosure. — Chicago, etc., R. Co. v. Minnesota, 216 U. S. 234, 54 L. Ed. 460, 30 S. Ct. 353. "A case in point is Keokuk, etc., R. Co. V. Missouri, 152 U. S. 301, 312, 38 L. Ed. 450, 14 S. Ct. 592." Great Northern R. Co. V. Minnesota, 216 U. S. 206. 54 L. Ed. 446. 30 S. Ct. 344. "In Trask v. Maguire, 18 Wall. 391, 409. 21 L. Ed. 938, * * * this court, speak- ing by Mr. Justice Field, said: 'When the state became the purchaser, the immunity ceased; the property stood in its hands precisely the same as any other unencum- bered propert}'' of the state, e.xemot from taxation, not by virtue of any previous stipulation with the company, but as all property of the state is thus exempt.' " Great Xorthern R. ' Co. v. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344. 489-39a. Great Northern R. Co. v. Min- nesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344, affirming Trask v. Maguire, 18 Wall. 391, 21 L. Ed. 938; Morgan v. Louisiana, 93 U. S. 217, 23 L. Ed. 860, and Louisville, etc., R. Co. v. Palmes, 109 U S. 244, 27 L. Ed. 922, 3 S. Ct. 193. Consolidation subsequent to adoption of constitution. — Great Xorthern R. Co. V. ]^Iinnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344, approving Louisville, etc., R. Co. V. Palmes, 109 U. S. 244, 27 L. Ed. 922, 3 S. Ct. 193; and Trask v. Maguire, 18 Wall. 391, 21 L. Ed. 938. Yazoo, etc., R. Co. v. Adams, 180 U. S. 1, 45 L. Ed. 395, 21 S. Ct. 240, reviewed the judgment of the supreme court of Mississippi in 77 Miss. 194, 60 L. R. A. 33, 24 So. 200, 317, 28 So. 956. The Mis- sissippi court, held that a grant of ex- emption from taxation to a railroad com- pany was void under the constitution of 1869 of that state, and that the organiza- tion of a consolidated company imder the constitution of 1890 cut ofT an exemption from taxation granted to a constituent company prior to the adoption of that constitution. This judgment was af- firmed, in the supreme court which, speaking by Mr. Justice Brown, held "that the consolidation of October 24, 1892, created a new corporation, and that while it might be true that the e.xemp- tion in question would pass to the con- solidated company by the terms of the legislature under review, yet, when the constitutional provision of 1890 took ef- fect, the consolidated corporation, or- ganized under that constitution, was no longer entitled to the exemption." Yazoo, etc., R. Co. V. Vicksburg, 209 U. S. 358, 52 L. Ed. 833. 28 S. Ct. 510. 489-40a. So held under constitution of Mississippi 1890, § 181. Yazoo, etc., R. Co. v. Vicksburg, 209 U. S. 358, 52 L. Ed. 833. 28 S. Ct. 510. "The effect of organizing the consoli- dated corporation after the adoption of the Mississippi constitution of 1890 was to bring the new corporation within the terms and limitations of that constitu- tion, which prohibited exempticfn of cor- 1179 489-490 TAX ATI OX Vol. XI. Consolidation Creates No New Immunity. — No immunity from taxa- tion which did not then exist is conferred by an act authorizing the consoHda- tion of the stocks of two railway companies, which should continue to exer- cise all powers and privileges conferred by existing law upon the corporation o^ that name, and be under all the liabilities and restrictions imposed upon it.-*"^ 4. Powe;r of Legislature to Transmute Exemption — a. In General. — Where a corporation was incorporated under a general act creating certain obli- gations, it can not receive by transfer from another company an exemption inconsistent with its own charter or the constitution and laws of the state then applicable, and this even though the legislative authority undertook to transfer the exemption by words which clearly included it.^^^ b. Construction of Particular Words and Phrases in Grant. — It is now the rule, notwithstanding the earlier decisions and dicta to the contrary, that a statute authorizing or directing the grant or transfer of the "privileges" of a porate property from taxation." Yazoo, etc., R. Co. V. Vicksburg. 209 U. S. 358, 52 L. Ed. 833, 28 S. Ct. 501; Great North- ern R. Co. V. Minnesota. 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344. "The exemption to the former con- stituent company could not inure to the consolidated company without, in effect, ignoring the constitutional provision." Yazoo, etc., R. Co. v. Vicksburg, 209 U. S. 358, 365, 52 L. Ed. 833, 28 S. Ct. 510; Great Northern R. Co. v. Minnesota. 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344. "The formation of the consolidated company was not imposed upon the com- plainant; it had the privilege of standing upon such rights as it had by contract or otherwise under the former legislation in force before the adoption of the new constitution. When it saw fit to enter into the consolidation and form a new corporation in 1892, the constitution then in force in the state became the law of its corporate being, and the requirement that corporate property should not be exempt from taxation then became bind- ing upon it. as upon all other corpora- tions formed under the new organic law." Yazoo, etc., R. Co. t'. Vicksburg, 209 U. S. 358, 52 L. Ed. 833, 28 S. Ct. 510; Great Northern R. Co. v. Minnesota. 215 U. S. 206. 54 L. Ed. 446, 30 S. Ct. 344. 489-40b. Consolidation creates no new immunity. — Wright v. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242, following Central R., etc., Co. v. Georgia, 92 U. S. 665, 23 L. Ed. 757. So holding as to Act Ga. Jan. 21, 1852 (1851c-52, p. 120). In Central R., etc., Co. v. Georgia, 92 U. S. 665, 23 L. Ed. 757, it was held that the tax exeinption which the Central Railroad had enjoyed continued after the consolidation in respect of the property of that company, but that, as the Macon company, consolidated with it, had no exemption, its property continued sub- iect to taxation. Wright v. Georgia R., etc Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. * 490-41a. Yazoo, etc., R. Co. v. Vicks- burg, 209 U. S. 358, 52 L. Ed. 833, 28 S. Ct. 510, following Rochester R. Co. v. Rochester, 205 U. S. 236, 51 L. Ed. 784, 27 S. Ct. 469; Great Northern R. Co. v. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344. In Rochester R. Co. r. Rochester, 205 U. S. 236, 51 L. Ed. 784, 27 S. Ct. 469. The court said: "The principle govern- ing these decisions, so plain that it needs no reasoning to support it, is that those who seek and obtain the benefit of a charter of incorporation must take the benefit under the conditions and with the burdens prescribed by the laws then in force, whether written in that constitution, in general laws, or in the charter itself." Great Northern R. Co. V. Minnesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344; Yazoo, etc., R. Co. v. Vicksburg, 209 U. S. 358, 52 L. Ed. 833, 28 S. Ct. 510. Renewals of exemptions. — "The inhibi- tion of the constitution applies in all its force against the renewal of an exemp- tion equally as against its original crea- tion; and this inhibition the legislature could not disregard in providing for the sale of the property which it had pur- chased." Great Northern R. Co. v. Min- nesota, 216 U. S. 206, 54 L. Ed. 446, 30 S. Ct. 344, quoting Trask z: Maguire, 18 Wall. 391, 21 L. Ed. 938, and stating that: "The Trask Case was cited with approval in Morgan v. Louisiana, 93 U. S. 217, 23 L. Ed. 860, and Louisville, etc., R. Co. 7'. Palmes, 109 U. S. 244, 254, 27 L. Ed. 922, 3 S. Ct. 193." The prohibition which forbids the leg- islature from exempting the property of railroad corporations from taxation makes it impossible for the legislature to create such a corporation capable in law of ac- quiring and holding property free from liability to taxation. Great Northern R. Co. z: Minnesota, 216 U. S. 206. 54 L. Ed. 446, 30 S. Ct. 344. 1180 \'ol. XI. TAXATIOX. 491-495 corporation which enjoys immunity from taxation or reguhition should not be interpreted as including that immunity.-*-""' Privilege. — See note 46. Incorporatmg a railway company witli power to exercise all the powers and privileges conferred by an earlier act incorporating another railway company does not confer upon the new corporation the im- munity from taxation enjoyed by the earlier company under its charter.-**'* G. Property Entitled to Exemption — 4. Corpor.ations — a. Corporate Stock — ( 1 ) Exonption of Capital Stock as Exemption of Shareholders. — See note 70. (3) Exemption of Stock as Exemption of Property Represented Thereby. — ■ The word "stock" is not uniformly used to designate the capital of a corpora- tion, although its primary meaning is capital, in whatever form it may be in- vested. Indeed, it is not at all unusual to find the word used synonymouslv with "shares'" and meaning the certificates issued to subscribers to the stock. It is therefore important to look at the connection in which the word is used 491-45a. Wright v. Georgia R.. etc.. Co.. 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. quoting Rochester R. Co. v. Rochester, 205 U. S. 236, 51 L. Ed. 784, 27 S. Ct. 469. The early cases support the proposition that under the power to exercise all t!ie powers and privileges conferred by an act incorporating a company, an im- munity from taxation granted to an earlier company passes to the latter one. See Humphrey v. Pergues, 16 Wall. 244, 21 L. Ed. 326; Chesapeake, etc., R. Co. r. Vir- ginia, 94 U. S. 718, 24 L. Ed. 310; Cen- tral R., etc., Co. z: Georgia, 92 U. S. 665, 676, 23 L. Ed. 757, and Tennessee :■. Whitworth, 117 U. S. 139, 29 L. Ed. 833. 6 S. Ct. 649. In later cases this doctrine was questioned. See Chesapeake, etc., R. Co. z: Miller, 114 U. S. 176, 29 E. Ed. 121, 5 S. Ct. 813, and Picard v. East Tennessee, etc., R. Co., 130 U. S. 637, 32 L. Ed. 1051, 9 S. Ct. 640. "In Wilmington, etc., R. Co. z'. Als- brook, 146 U. S. 279, 297, 36 L. Ed. 972, 13 S. Ct. 72; Keokuk, etc., R. Co. z: Mis- souri, 152 U. S. 301, 38 L. Ed. 450. 14 S. Ct. 592; and Phoenix Fire, etc., Ins. Co. v. Tennessee, 161 U. S. 174, 40 L. Ed. 660, 16 S. Ct. 471, the earlier cases were also much shaken, so far as they tended to establish that a tax exemption would be transferred by legislative enactment conferring upon one road the powers or franchises or privileges of another, in the absence of other language or preg- nant circumstances, showing a plain in- tent to confer such exemption." Wright z: Georgia R.. etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. "In Picard z: East Tennessee, etc., R. Co., 130 U. S. 637, 642, 32 L. Ed. 1051. 9 S. Ct. 640, * * * it was said: "It is true there are some cases where the term "privileges" has been held to include im- munity from taxation, but that has gen- erally been where other provisions of the act have given such meaning to it. The latter, and, we think, the l)etter, opinion, is that unless other provisions remove all doubt of the intention of the legislature to include the immunity in the term ■■privileges'' it will not l^e so construed. It can have its full forge by confining it to other grants to the corporation.' '" Wright v. Georgia R., etc.. Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 491-46. "The word 'privilege' has been construed by this court not to include a contract of exemption from taxation." Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. 491-46a. Wright v. Georgia R., etc., Co., 216 L'. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. "It is one thing to have authority to "exercise" all the "powers and privileges' of another company, and another thing to enjoy an exemption from taxation. The "exercise' of the 'powers and privi- leges' of the company referred to was reasonably essential to the construction and operation of the independent rail- road. Its immunity from taxation was not. See Wilmington, etc., R. Co. v. Als- brook, 146 U. S. 279, 295, 36 L. Ed. 972, 13 S. Ct. 72, and National Bank z: United States, 101 U. S. 1, 25 L. Ed. 979. The power of taxation is never to be re- garded as surrendered or bargained away if there is room for rational doubt as to the purpose." Wright z\ Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 495-70. In Farrington v. Tennessee, 95 U. S. 679, 687, 24 L- Ed. 558, and Bank z: Tennessee, 161 U. S. 134. 137, 40 L. Ed. 645, 16 S. Ct. 456, "something is said in an argumentative way about the tax- ability of a bank's surplus whose capital was exempt. That might well be if the bank should choose to enlarge its actual capital in the business by using profits as capital instead of distril)Uting them as profits to the shareholders, where the exemption was of a specific amount of capital." Wright z: Georgia R., etc., Co.. 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 1181 496-499 TAXATION. Vol. XI. when an exemption or substituted method of taxation is involved, to see whether the legislative intent was to exempt the capital, in whatever form invested, or the shares of stock in the hands of the shareholders.'^^^ Capital Stock and Shares Distinguished. — There is an obvious distinc- tion between the capital stock of an incorporated company and the "shares" of the company. The one is the capital upon which the business is to be under- taken, and is represented by the property of every kind accjuired by the com- pany. Shares are the mere certificates which represent a subscriber's contribu- tion to the capital stock, and measure his interest in the company. The charter, plainly enough, recognized this.'^'^'^ b. Banks — (2) Inviolability of Contract — cc. Limitations of General Rule. — See note 82. dd. Changing Day of Assessment.— ConirdiCi obligations created by a state statute exempting a bank from any other taxes than those therein prescribed are not impaired by a subsequent statute changing the day when the bank is to report its property for assessment, the effect of which is to impress a lien on its property which continues, notwithstanding the repeal of its charter be- fore liability under the former statute attached, and the transfer of- its assets to another bank,- organized for the purpose of taking them over.^^^ c. Railroads — (1) Inviolability of Contract. — A law which imposes a tax upon the franchise of a railroad company whose property is exempt from taxation is a law in derogation of the exemption contract. '^'^^ A tax upon the franchise of a railway company impairs the obligation of a charter exemption from any property tax other than one based on its net profits. ^^'^ The excess of the value of a railway and its appurtenances over the nominal value of its authorized capital stock, the result of natural increase in the value of such 496-74a. Wright v. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242, following Powers v. Detroit, etc., R. Co., 201 U. S. 543, 559, 50 L. Ed. 860, 26 S. Ct. 556. Capital, in whatever form invested, ap- propriate to the purpose of the company, and not merely the shares held by stock- holders, must be regarded as meant by the word "stock," as used in a provision of a railway charter that the stock of the company and its branches shall be ex- empt from taxation for seven years, and after that shall be subject to a tax not exceeding a given per cent upon the net proceeds of their investments, in view of the recognition in other provisions of the charter of the distinction between capital stock and "shares," and of at least sixty years' legislative and executive ac- quiescence in reading this partial exemp- tion as applicable to the capital stock of the company, and of a series of decisions of the highest state court, holding either that the whole of the capital was exempt, in whatever form invested, or so much of the investment as corresponded in value to the authorized capital stock. Decree, Georgia R. & Banking Co. v. Wright (C. C. 1904), 132 F. 912, affirmed. Wright v. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. "Their investments," as used in the charter means the property into which the company's capital has gone. Wright V. Georgia R., etc., Co., 216 U. S. 420. 54 L. Ed. 544, 30 S. Ct. 242. 496-74b. Capital stock and shares dis- tinguished. — Wriglu c'. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 498-82. An irrevocable contract was not created between the state 'and a na- tional bank accepting the provisions of Acts Ky. 1885-86, c. 1233, known as the "Hewitt Act," fixing the rate of taxation, since that act expressly provided that it t^hould be subject to a general law re- serving the right to repeal, alter, or amend all grants to corporations. Citi- zens' Nat. Bank v. Kentucky, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532, citing Citizens' Sav. Bank v. Owensboro, 173 U. S. 636, 43 L. Ed. 840, 19 S. Ct. 530, and Covington v. First Nat. Bank. 198 U. S. 100, 49 L. Ed. 963, 25 S. Ct. 562. 498-82a. Judgment (1906), 94 S. W. 620. 29 Ky. Law Rep. 643, affirmed. Bank V. Kentucky, 207 U. S. 258, 52 L. Ed. 197, 28 S. Ct. 82. 499-87a. Wright v. Georgia R., etc., Co.. 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242; Wilmington Railroad v. Reid, 13 Wall. 264, 20 L. Ed. 568; Gulf, etc., R. Co. v. Hewes, 183 U. S. 66, 77, 46 L- Ed. 86, 22 S. Ct. 26. 499-87b. Decree, Georgia R. & Bank- ing Co. V. Wright (C. C. 1904), 132 F. 912, affirmed. Wright v. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. 1183 Vol. XI. TAXATION. 499-508 property, and of renewals, alterations, and betterments made from time to time is included in the partial exemption from taxation under the charter pro- vision that the stock of the company and its branches shall be wholly exempt for seven years, and after that shall be subject to a tax not exceeding a given per cent on the net proceeds of their investments ; the legislative purpose being otherwise plain that the authorized capital be adequate to the construction and equipment of the roads. ^""^ H. Commencement and Termination of Exemption — 3. Duration. — The partial exemption from taxation under a charter provision that the stock of a railway company and its branches shall be wholly exempt for seven years, "and after that" shall be subject to a tax not exceeding a given per cent on the net proceeds of their investments, can not be regarded as limited to the 36 years during which the company was to have exclusive rights within a de- fined territory, on the theory that the words "and after that" do not mean "thereafter," and do not refer to the limitation immediately preceding, but to the 36 years' limitation of the exclusive right regulated by the preceding part of the same section of the charter. ^^^ 4. Revivor of Exemption oe Railroad Void eor Failure to Construct in Time Limit. — A charter exemption from taxation which has ceased and be- come void for failure to construct a railroad within the time limited by its charter can not be revived by a subsequent statute, enacted when the state constitution prohibited the granting of special privileges with respect to taxa- tion, recognizing the legal existence of the railway company at that time, and waiving the right to declare a forfeiture.^-'' VI. Assessment and Levy. A. General Principles — 4. Due Process of Law — a. General Statement. — See note 34. b. Notice and Hearing — (1) Necessity Generally. — The assessment of a tax is action judicial in its nature, requiring for the legal exertion of the power such opportunity to appear and be heard as the circumstances of the case re- quire.-^"'' Due process of law is not afiforded by the system of taxation pre- scribed by the Georgia Political Code, under which, as construed by the highest state court, the valuation of property not returned for taxation, made by the assessing officer without notice or opportunity for hearing, concludes the tax- payer, both in the tax proceedings and in the courts, unless he can show bad faith, even where he may have withheld the property from return upon rea- 499-87C. Wright v. Georgia R., etc., Co., except by judicial proceedings for relief 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. from the assessment, and its action is See ante, "Exemption of Stock or Ex- therefore repugnant to Const. U. S.. emption of Property Represented 14th Amend., if it denies any one the Thereby," V, G, 4, a, (3). due process of law protected by that 502-12a. Decree, Georgia R. & Bank- amendment against impairment by the ing Co. V. Wright (C. C. 1904), 132 F. ^tate. Judgment, Chicago Union Trac- 912, afifirmed. Wright v. Georgia R., etc., tion Co. v. State Board of Equalization Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. (C C. 1902). 114 F. 557, affirmed. Ray- Ql 949 mond V. Chicago Union Tract. Co., 50i-12b. Judgment, State v. Chicago ^07 U.S. 20, 52 L. Ed. 78 28 S. Ct. 7; Great Western Ry. Co. (1908). 119 N. ?^^^°" /• ^ "'^o^°9 n AT- i c-if -rj c -P,< 508-37a. Notice. — Central, etc., R. Co. etc.. R. Co. V. Minnesota, 216 J. S. 234. •■,, . ,, _^„ ^t c 10- -9 t x^a io< t^A T -CA ^cA or, c r<4. '>-■> '• Wright, 207 U. b. 12*. ;)2 L. Ed. 134, 54 L,. t,d. 460, 30 b. Lt. 3o3. _„ o /y persons not domiciled within the state of Kentucky. The question arose under a bill filed in a circuit court of the United States to enjoin the imposition of lia- bility upon a national bank for taxes and penalties upon shares held between 1892 and 1900 by persons who were not domiciled in Kentucky, it being alleged that the purpose of the proceeding against the bank was to charge the bank, without discrimination between domestic and foreign-held shares. Prior to this Act of March 21, 1900, there was no law requiring a return for taxation of bank shares held by owners not domiciled within the state, either by such holder or by the bank in which such shares were held. For this reason we hold in the case referred to that this act imposed, for the years prior to its passage, a lia- bility upon national banks for taxes upon shareholders domiciled outside of the state, which was not borne by other in- corporated moneyed institutions." Citi- zens' Nat. Bank v. Kentucky, 217 U. S. 443, 54 L. Ed. 832. 30 S. Ct. 532. "In Covington v. First Nat. Bank, 198 U. S. 100, 111, 49 L. Ed. 693. 25 S. Ct. 562, this court, speaking by Mr. Justice Day, accepted this as the interpretation of the statutory law of Kentucky by the highest court of the state, saying: 'Following the state court in the interpretation of its own statutes, it may be said that, as to shareholders residing in Kentucky and over whom the state has jurisdiction, the supreme court of that state has con- strued its statutes as requiring share- Iiolders in national banks for the years 1893 to 1900, inclusive, to return their 12 U S Enc- 1185 512 TAXATION Vol. XL nonresident shareholders in a national bank can complain of the supposed invalidity, as to them, of the retroactive features of Act Ky. March 21, 190O (Acts 1900, c. 23), making it the duty of certain officers of the bank to list its shares of stock for taxation, and requiring the bank to pay the tax, and a penalty for delinquency.^^'' i. Credits Due Foreign Insurance Companies. — Assessing in excess of ac- tual indebtedness the amounts due a foreign insurance company by its policy holders in the state, on which credits have been extended does not take the property of the company without due process of law, where proper opportunity was afiforded for correction. •^•*^ A foreign insurance company can not claim to have been denied due process of law because the assessments for taxation of the credits due from residents of the state were grossly excessive or the result of mere guesswork, where opportunity was afforded to institute, within a reasonable time fixed by law, a suit to reduce the assessments. ^^^ j. Allowance for Obligations and Debts.— The law can tax tangibles by present ownership without regard to obligations that, when formed, will make some of them change hands. The 14th Amendment does not prohibit a scheme of taxation which does not make allowance for all obligations and debts. ^^'^ 5. CoxcivUSivENEss OF Assessment. — Construing state statutes relating to franchise tax assessments as rendering an assessment once made final, irrespec- tive of any secret intentions of the board levying it, does not deny the due proc- shares for taxation; and if they did not make the return, the duty was required of the corporation. In this view of the law it may be that, as to local share- holders, the Act of March 21, 1900, as held by the supreme court of Kentucky, created no new right of taxation, but gave simply a new remedy, which, by the law, is operative to enforce pre-ex- isting obligations.' " Citizens' Nat. Bank V. Kentucky, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532. "The proceeding enjoined was one for the purpose of fixing liability upon the bank without discriminating between resident and nonresident shareholders. But in the present case the state court has not imposed liability upon the bank for taxes or penalties upon shareholders who were nonresidents, but has applied it as affording a valid remedy for the col- lection of taxes and penalties upon resi- dents who had not made return, as re- quired under the prior law. As thus ap- plied, the bank has neither been deprived of any rights nor compelled to bear any burden in conflict with § 5219, Rev. Stat.. upon which it relies for protection." Citizens' Nat. Bank v. Kentucky, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532. 512-53b. Citizens' Nat. Bank v. Ken- tucky, 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532. "If it be assumed, an assumption not sustained by any decision of the Ken- tucky court of appeals, that the 3d section is broad enough to include liability for delinquent taxes claimed from both resi- dent and nonresident stockholders, none of the latter class are here complaining, and such an objection can not be made b}' one unaffected by the alleged invalid feature. Austin :■. Alderman, 7 Wall. 094, 19 L. Ed. 224; Supervisors v. Stanley,. 105 U. S. 305, 26 L. Ed. 1044; The Win- nebago, 205 U. S. 354, 51 L. Ed. 836. 27 S. Ct. 509." Citizens' Xat. Bank v. Ken- tuckJ^ 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532. 512-54a. Liverpool, etc., Ins. Co. v. Board, 221 U. S. 346, 55 L. Ed. 762, 31 S. Ct. 550, affirming judgment in 47 So. 415, 122 La. 98; Orient Ins. Co. z'. Board of Assessors, 124 L. A. 872, 50 So. 778. See Central, etc., R. Co. v. Wright, 207 U. S. 127, 52 L. Ed. 134, 28 S. Ct. 47. It was competent for the legislature to- fix a reasonable time within which ac- tions for reductions should be instituted. When this was done and the company did not sue in time, there was no viola- tion of the federal constitution in ad- judging the rights of the plaintiffs ac- cordingly. Kentucky Union Co. v. Ken- lucky, 219 U. S. 140, 157, 55 L. Ed. 137, 31 S. Ct. 171; Terry v. Anderson, 95 U.. S. 628, 24 L. Ed. 365; Orient Ins. Co. v. Board. 221 U. S. 358, 55 L. Ed. 769, 31 S. Ct. 554. 512-54b. Orient Ins. Co. r. Board, 221 U. S. 358, 55 L. Ed. 769. 31 S. Ct. 554, citing Brooklyn, etc., R. Co. v. New York State Board, 199 U. S. 48, 52, 50 L. Ed. 79, 25 S. Ct. 713. 512-54C. Paddell z: New York. 211 U. S. 446, 53 L. Ed. 275, 29 S. Ct. 139, citing Bell's Gap R. Co. f. Pennsylvania, 134 U. S. 232, 237, 33 L. Ed. 892, 10 S. Ct. 533; Merchants', etc., Bank v. Pennsylvania, 167 U. S. 461, 464, 42 L. Ed. 236, 17 S. Ct.. S29. 1186 Vol. XI. TAXATION. 512-520 ess of law guaranteed by Const. U. S., Amend. 14, to the railway company affected by such assessment.^^^ 6. Time and Place. — The owner of property is bound to take notice of the time and place provided for tax proceedings. He knows that his property is subject to taxation. ^^^ C. Liability for and Payment of Taxes — 1. Liability — d. Between Land- lord and Tenant. — In Virginia the general rule that the landlord is responsible for the taxes has "no application to the case of a perpetual leaseholder, where the tenant is in effect the virtual owner of the property, and entitled to its use forever. * * "^^ For the purposes of taxation, the mere legal title remain- ing in the landlord will be disregarded."^^^ Covenant of Perpetual Leaseholder with Municipal Landlord to Pay Public Taxes. — The covenant of a perpetual leaseholder with his municipal lessor to pay the public taxes which shall become due on the land embraces municipal taxes whenever they can thereafter be lawfully assessed on the land or the improvements which are part of the land, although when the lease was made the municipality had no power of taxation.^^" f. Between Vendor and Vendee. — See post, "Shares of National Bank Stock," VI, C, 1, k. The liability for a tax is not subject to the rules applicable to the vendor's equity. A man can not get rid of his liability to a tax by buying with- out notice.^^^ j. Company Operating Railroad. — Under the federal constitution, a state is not precluded from fixing liability for the payment of the tax, to which the franchise is subject, upon the corporation actually exercising the franchise within the state, and in control of the railroad property and its earnings. There 512-55a. Illinois Cent. R. Co. v. Ken- tucky, 218 U. S. 551, 54 L. Ed. 1147, 31 S. Ct. 95. 13-58a. Time and place. — Ontario Land Co. V. Yordy, 212 U. S. 152, 53 L. Ed. 449, 29 S. Ct. 278. 520-91a. Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. "The court of appeals [of Virginia 108 Va. 30] * * * adopted that part of the language in Wells v. Savannah, 87 Ga. 397, 13 S. E. 442, affirmed in Wells V. Savannah, 181 U. S. 531, 45 L Ed. 986, 21 S. Ct. 697, vi^here, in speaking of the liability of one who had a perpetual lease and a right to convert it at will into a fee. Judge Bleckley said: 'The value of property consists in its use, and he who owns the use forever, though it be on condition subsequent, is the true owner of the property for the time being.' Crowe V. Wilson, 65 Md. 479, 57 Am. Rep. 343, 5 Atl. 427; Brainard v. Col- chester, 31 Conn. 407." Perry Co. v. Nor- folk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. 520-91b. Covenant with municipal lessor to pay public taxes. — Perry Co. v. Norfolk, 220 U. S. 472, 55 L Ed. 548, 31 S. Ct. 465. "In support of their claim that the city as lessor could not tax its own property, so as to make it a valid public tax, pay- able by the lessee, they rely on the gen- eral rule that taxes are assessed to the owner, and as the landlord receives the rent, he ought to bear the burdens im- posed upon the property. On the au- thority of State ex rel. Glenn v. Missis- sippi River Bridge Co., 134 Mo. 321, 35 S. W. 592; Thurston v. Mustin, 3 Cranch, C. C. 335, Fed. Cas. No. 14,013, and like cases, they insist that this is a liability arising out of the relation of landlord and tenant, and is not limited to short- term leases, but applicable to those for ninety-nine years, renewable forever." Perry Co. v. Norfolk, 220 U. S. 472, 55 L. Ed. 548, 31 S. Ct. 465. "Ordinarily, it would be a useless thing for a city to tax its own property. But this can be done under Virginia practice, and is not a vain thing if thereby property of the city, subject to taxation, is listed in its name as holder of the legal title, so as to fix the amount of the tax on the property which the ten- ant may have agreed to pay. Cooley, Texn. 3d. Ed. 263. This ruling of the Virginia court presents no federal ques- tion, but does establish that the tax was not illegal, as claimed, but was based on an assessment valid under the laws of the state." Perry Co. v. Norfolk. 220 U. S. 472. 5.5 L. Ed. 548, .31 S. Ct. 465. 520-94a. Citizens' Nat. Bank r. Ken- tucky. 217 U. S. 443, 54 L. Ed. 832, 30 S. Ct. 532, following Seattle v. Kelleher, 195 U. S. 351, 49 L. Ed. 232, 25 S. Ct. 44. 1187 •521-532 TAXATION. Vol. XI. is no constitutional obligation requiring it to look further in order to secure payment of the tax which it is entitled to levy.^^^ k. Shares of National Bank Stock. — The shares of stock of a national bank pass from one holder to another, subject to burden of taxes; and if not re- turned by either the shareholder or the bank, as required by law, the liability remains to be enforced until barred by limitations of time. The liability of the bank is that of the shareholder, and its reimbursement must come from those who hold the shares when the bank liability is enforced. The liability of the purchaser of shares for tax not paid, and of the bank, an agent for its shareholders, is one of the notorious and necessary consequences of the long-sanctioned right of the states to compel such banks to return their shares for taxation, and to pay the assessment thereon if the shareholder does not.^^" D. Lien for Taxes — 2. Accrual and Duration. — The lien of taxes upon the fee, given by the Tennessee Act of January 10, 1903, chap. 258, § 32, ap- plies only when the fee itself may be taxed, and does not give such lien for a tax upon the interest of a lessee where the fee itself is exempt from taxation.^^^ 4. Enforcemi:nt. — See post, "General Principles and Preliminary Steps," VIII, A. F. Corrections and Additions — 4. Boards of Revision or Equalization, ETC. — See ante, "General Statement," VI, A, 4, a. Equalization of Value of Particular Classes of Property within a County. — Ihe Arizona board of equalization, in exercising its power under Rev. St. Ariz. 1901, § 3880, to increase or diminish the valuation of property in any county in order to produce a just relation between all the valuations of property in the territory, is not bound to deal with the valuation of each county as a whole, but may increase or diminish the valuations of particular classes of property within the county."*^** H. Injunction against Taxes — 1. Jurisdiction — a. General Statement of Rule. — See note 48. Federal courts throughout the country have frequently reviewed the action of taxing bodies when, under the facts, such action was in effect the action of the state, and therefore reviewable by the federal courts by virtue of the provisions of the 14th Amendment. ^^'^ When a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed to operate unequally and to violate a fundamental principle of the constitution, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of this unconstitutional exercise of power.^'*'' Equity has jurisdiction, v/here no remedy at law exists, upon payment of a tax fairly and equitably due, to restrain the collection of the tax assessed upon a corpora- tion at a different rate and by a different method from that employed for 521-99a. Illinois Cent. R. Co. v. Ken- an officer of this kind from performing tucky, 218 U. S. 551, 54 L. Ed. 1147, 31 his statutory duty for fear he should S. Ct. 95, citing Carstairs v. Cochran, 193 perform it wrongly. The earliest moment U. S. 10, 16, 48 L. Ed. 596, 24 S. Ct. 318, for equity to interfere is when an assess- and National Bank t>. Commonwealth, 9 ment has been made. Probably it will Wall. 353, 19 L. Ed. 701. be made with caution, after this case." 521-99b. Citizens' Nat. Bank v. Ken- First Nat. Bank v. Albright, 208 U. S. tucky, 217 U. S. 443, 54 L. Ed. 832, 30 S. ^-^S- -'^ L- Hd. 614, 28 S. Ct. 349. Ct 532 532-54a. Raymond v. Chicago Union 525-23a. Jetton v. University, 208 U. l'^^\- Jo-. 207 U. S 20, 52 L. Ed. 78, 28 S. 489, 52 L. Ed. 584, 28 S. Ct. 375. S. Ct. 7, following Chicago etc., R. Co. ^ ' ^ , / » . „ N .r^ <-'■ Chicago, 166 U. S. 226, 41 L. Ed. 979, 529-42a. Judgment (Ariz. 1906), 84 P. ^^ g q^ gg^ 511, affirmetl Copper, etc. Min. Co. v. 532-54b. Raymond v. Chicago Union Territorial Board, 206 U. S. 474, 51 L. Tract. Co.. 207 U. S. 20, 52 L. Ed. 78, 28 Kd. 1143, 27 S. Ct. 695. g q^ ^^ approving Cummings v. National 530-48. "It is not for a court to stop Bank, 101 U. S. 153, 25 L. Ed. 903. 1188 Vol. XL TAXATION. 532-536 other corporations of the same class and for the same year, which results in a most enormous and material discrimination against the complainant corpora- b. Bxhanstion of Other Remedies. — See note 58. The existence of an ade- quate remedy at law by an action to recover back illegal taxes, which will de- feat injunctive relief, is negatived by allegations in a bill to restrain illegal taxation that, if complainant sues to recover back the taxes, separate suits /nust be brought against the several taxing bodies receiving a share of the tax ; that the proportion of the tax which goes to the state can not be recovered by any legal proceeding; that whatever repayment can be compelled from the other taxing bodies will not cover the cost, including commissions deducted for the collection of the tax; that payment of such tax will render complain- ant insolvent ; and that a levy on its property will interfere with the street car system operated by it, to the injury of the public.^'''' f. Necessity for Payment of Taxes Admittedly Due. — See note 66. 4. Res Judicata. — See ante, "Application of Doctrine of Res Judicata," IV, A, 5, VII. Collection of Taxes. A. General Principles — 2. Due Process of Law. — A summary procedure 532-54C. Judgment, Chicago Union Tract. Co. v. State Board of Equalization (C. C), 114 F. 557, affirmed in Raymond V. Chicago Union Tract. Co., 207 U. S. 20, 53 L. Ed. 78, 28 S. Ct. 7; Raymond v. Chicago Edison Co., 207 U. S. 42, 52 L. Ed. 89, 28 S. Ct. 14, citing Reagan v. Farmers' Loan, etc., Co., lo4 U. S. 362, 390, 38 L. Ed. 1014, 14 S. Ct. 1014; Backus V. Fort St. Union Depot Co., 169 U. S. 557, 565, 42 L- Ed. 853, 18 S. Ct. 445; Fargo V. Hart, 193 U. S. 490, 502, 48 L. Ed. 761, 24 S. Ct. 498. 534-58. If there be a complete and ade- quate remedy at law assuming the tax to be void, equity will not restrain, by injunc- tion, its collection, unless there be some other ground for equitable interposition. Raymond v. Chicago Union Tract. Co., £07 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7, citing Shelton v. Piatt, 139 U. S. 591, 35 L. Ed. 273, 11 S. Ct. 646; Allen v. Pull- man's Palace Car Co., 139 U. S. 658, 35 L. Ed. 303, 11 S. Ct. 682; and Pacific Exp. Co. V. Seibert, 142 U. S. 339, 35 L. Ed. 1035, 12 S. Ct. 250. In Shehon v. Piatt, 139 U. S. 591, 35 L. Ed. 273, 11 S. Ct. 646, and Allen v. Pullman's Palace Car Co., 139 U. S. 658, 35 L. Ed. 303, 11 S. Ct. 682, "it was rec- ognized that no ground appeared f^r the interposition of a court of equity, be- cause of the existence of a statute in the state of Tennessee providing for paying the amount of the alleged illegal tax to the officer holding the warrant, and granting to the taxpayer a right to com- mence an action to recover back the tax thus paid, the statute providing that the officer should pay the amount received into the state treasur3\ where it was to remain until the question was decided, and, if it was decided in favor of the taxpayer, provision was made for the re- payment of the amount by the state. The other averments, beside that of the ille- gality of the tax, made in these two cases, were held not to constitute a ground for the interposition of a court of equity by restraining the collection of the tax." Raymond v. Chicago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7. In Pacific Exp. Co. v. Seibert, 142 U. S. 339, 35 L. Ed. 1035, 12 S. Ct. 250, the court held that there was no ground to warrant the interposition of a court of equity. The case was decided upon the ground that the averment of illegality of the tax was not sustained. There is no statute of a similar kind in Illinois which has been called to our attention, but some of the cases in that state hold that a suit may be maintained against the col- lector when the money was paid under prote'st." Raymond v. Chicago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7. 535-59a. Judgment, Chicago Union Tract. Co. v. State Board of Equalization (C. C), 114 F. 557. affirmed in Raymond V. Chicago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78, 28 S. Ct. 7; Raymond v. Chicago Edison Co., 207 U. S. 42, 52 L. Ed. 89, 28 S. Ct. 14. 536-66. Payment of taxes admittedly due. — "Where there is jurisdiction to tax at all, equity will not grant an injunc- tion to restrain the collection, even of an illegal tax, without the payment on the part of the taxpayer of the amoimt of a tax fairly and equitably due. People's Nat. Bank v. Marye, 191 U. S. 272, 48 L. Ed. 180, 24 S. Ct. 68." Raymond v. Chi- cago Union Tract. Co., 207 U. S. 20, 52 L. Ed. 78. 28 S. Ct. 7. 1 189 541-547 TAXATION. Vol. XI. has been sustained where the person taxed has been allowed opportunity to be heard in opposition to the enforcement of taxes and penalties against him.^^* Enforcement against Company Operating Railroad. — The enforcement of a railway franchise tax by a judgment in personam against a railway com- pany which, while not the owner of the franchise, is operating the road under an arrangement with the purchaser at a judicial sale, and is in possession and full control of the railroad property and its earnings, does not deny the due process of law guaranteed by the fourteenth amendment to the federal con- , stitution.^^^ D. Collection by Suit or Motion — 2. Jurisdiction — a. At Law. — When a statute says a person shall pay a given tax it obviously imposes upon that person the duty to pay, and this may be enforced through the ordinary means adapted to the recovery of a definite sum due, unless that course is clearly prohibitedJ^ F. Forfeiture or Purchase by State for Taxes. — See note 25. Due process of law in forfeiting lands to the state for failure to list and pay taxes for certain specified years is afiforded by the Kentucky Act March 15, 1906, c. 22, art. 3, under which a judicial proceeding is provided by which the owner of the title may have the taxes assessed, and, upon payment thereof, the for- feiture avoided, and such forfeiture is declared only after a judicial proceeding in which the owner of the title is summoned and heard. ^^^^ Effect of Compact between Virginia and Kentucky.— Requiring upon notice and hearing the listing of land titles for taxation for certain specified years, or, in default thereof, forfeiting such title to the state, as is done by the Kentucky Act of March 15, 1906, art. 3, does not, as to titles under grants from the state of Virginia, violate the provisions of the compact of 1789, be- tween the states of Virginia and Kentucky, for the security of private rights existing at the time of the separation of the states, to be determined by the then-existing laws of Virginia. ^^"^ 541-88a. Summary procedure. — Ken- tucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. "l71. "Summary proceedings adapted to the circumstances, and permitting the tax- payer to appear and be heard at some stage of the proceedings, have been held to satisfy the requirements of due process of law. Security Trust, etc., Co. v. Lex- ington, 203 U. S. 323, 51 L. Ed. 204, 27 S. Ct. 87." Kentucky Union Co. v. Ken- tucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. In McMillen v. Anderson, 95 U. S. 37, 41, 24 L. Ed. 335, the federal supreme court said: "The mode of assessing taxes in the states by the federal govern- ment, and by all governments, is neces- sarily summary, that it may be speedy and effectual. By summary is not meant arbitrary, or unequal, or illegal. It must, under our constitution, lie law^full)' done." Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137. 31 S. Ct. 171. See, in this connection, Leigh v. Green, 193 U. S. 79, 48 L. Ed. 623, 24 S. Ct. 390; Ballard v. Hunter, 204 U. S. 241, 51 L. Ed. 461. 27 S. Ct. 261. 541-88b. Illinois Cent. R. Co. v. Ken- tucky, 21 S U. S. 551, 54 L. Ed. 1147, 31 S. Ct. i;.-). 543-7a. Means of recovery. — United States V. Chamberlin, 219 U. S. 250, 263, 55 L. Ed. 204, 31 S. Ct. 155. 547-25. "The West Virginia system was before this court in King v. Mullins, I'i i U. S. 404, 43 L. Ed. 214, 18 S. Ct. 925. In that case due process of law, in con- nection v^'ith the taxing system of the state, was given full consideration; and the constitution of West Virginia, when read in connection with the statutes of the state, was held to afford due process of law." Kentucky Union Co. z'. Ken- tucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. "The case of King v. Mullins, 171 U. S. 404, 43 L. Ed. 214, 18 S. Ct. 925, was followed and approved in this court in King V. West Virginia, 216 U. S. 92, 54 L. Ed. 396, 30 S. Ct. 225, and in Fay v. Crozer, 217 U. S. 455, 54 L. Ed. 837, 30 S. Ct. 568." Kentucky Union Co. v. Ken- tucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. 547-35a. Kentucky Union Co. v. Ken- Inckv, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. 547-25b. Effect of compact between Virginia and Kentucky. — Kentucky Union Co. 7'. Kentucky, 219 U. S. 140, 55 L. Ed. i;!7. 31 S. Ct. 171. 1190 Vol. XI. TAX ATI OX 547 Forfeiture for Failure to List Lands and Pay Taxes for Certain Speci- fied Years. — Landowners who did not acquire their title until after the delinquencies had occurred can not claim to have been denied the equal pro- tection of the laws by the application to them of the provisions of the Kentucky Act of March 15, 1906, art. 3, for the forfeiture of such lands to the state, because of the failure to the owners to list lands for taxation and pay the taxes thereon for certain specified years. 25<= Conditions Which Are Applicable Existing in Only Part of Counties of State. — The provisions for the forfeiture of land titles to the state for failure to list and pay taxes thereon for certain specified years, made by the Kentucky Act of March 15, 1906, art. 3, do not deny the equal protection of the laws be- cause, in the application of such statute, it can only meet conditions such as are embraced within the law in a part of the counties of the state.^^'^ Ex Post Facto Laws. — The objection that the retrospective features of the Kentucky Act of March 15, 1906, art. 3, forfeiting land titles for failure to list and pay taxes, make the law an ex post facto one, is not valid, where such legislation, as construed by the highest court of the state, imposes no retrospec- tive penalties or punishment of a criminal nature.-^'' Enurement of Forfeiture to Persons in Possession. — There is no denial of due process of law in the provisions of the Kentucky Act of March 16, 1906, c. 22, art. 3, under which the forfeiture of land titles to the state, as the result of proper proceedings and after due notice to the owner of the title, who is in de- fault for payment of taxes, is to enure to the benefit of adverse claimants occupy- ing and paying taxes upon the land, and not in default. -"'^ VIII. Sale for Taxes. A. General Principles and Preliminary Steps — >4. Nature of Proceed- 547-25C. Forfeiture for failure to list lands and pay taxes for certain specified years. — Kentucky Union Co. v. Ken- tucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. 547-25d. Conditions which are ap- plicable existing in only part of counties of state. — Kentucky Union Co. v. Ken- tucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. 547-25e. Ex post facto laws. — Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. 547-27a. Kentucky Union Co. z'. Ken- tucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171, affirming judgment 108 S. W. 931, 128 Ky. 610, 111 S. W. 362, 33 Ky. L. Rep. 875. "It is not a valid objection to a law of this character that the title forfeited to the state as the result of proper pro- ceedings and due notice to the owner of the title, who is in default for the pay- ment of taxes, may be transferred to others occupying and paying taxes upon the lands, and not in default. That the similar feature of the West Virginia con- stitution did not invalidate the law where opportunity was given for a hearing was held in King v. West Virginia [216 U. S. <)2, 54 L. Ed. 396. 30 S. Ct. 225] * * *, to have been concluded by King v. Mul- lins, 171 U. S. 404, 43 L. Ed. 214, 18 S. Ct. 925, and the same doctrine was ap- plied in Fay v. Crozer, 217 U. S. 455, 54 L. Ed. 837, 30 S. Ct. 568. This view may have the effect of subjecting the owner of the title which is forfeited to proceed- ings which devest his title, notwithstand- ing another claimant may have paid taxes upon a separate title in the same land; but this consideration does not ef- fect the validity of the law. The state may, so far as the federal constitution is concerned, tax each claimant of title upon the same premises, and may, by a proper procedure, devest the owner of one in default." Kentucky Union Co. v. Kentucky, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171. Cutting down period of limitation. — The forfeiture to the state for the benefit of actual occupants in adverse posses- sion, which is provided for by Act Ky. March ]5, 1906, c. 22, art. 3, in case of the failure of the owner or claimant to list the lands and pay taxes thereon for cer- tain specified years, is not lacking in due process of law because the effect is to cut down the period of limitation in which actions may be brought by the holders of the title to recover against ad- verse claimants. Kentucky Union Co. 7'. Kentucky, 219 U. S. 140, 55 E. Ed. 137, 31 S. Ct. 171, aflirming judgments (1907), 106 S. W. 260, 127 Ky. 667 and Cl908), 108 S. W. 931, 128 Ky. 610, 111 S. W. 362, 33 Ky. Law Rep. S57. 1191 551-554 TAXATION. Vol. XL INGS. — Tax foreclosure proceedings for the collection of taxes on real estate are proceedings in rem.^^^ 6. Filing Ce^rtiFicates of Delinquency. — The omission of the county treas- urer to file a certificate of delinquency with the clerk of the court in proceedings to foreclose the lien of the county for delinquent taxes, as required by a state statute, is not fatal to the validity of the proceedings, where jurisdiction has been obtained by the issue of the certificate and publication of the summons, as the filing of such certificate is directory and not mandatory.'^ ^^ 7. Notice and Summons. — See post, "Necessity and Purpose," VIII, B-C, 1. Summons. — The judgment in proceedings under a state statute to foreclose the lien of a county for delinquent taxes is not rendered invalid by the fact that the summons requires answer within sixty days after the first publication, instead of within sixty days after the "date of" the first publication.'^ ^'^ Notice by Publication. — See post, "Necessity and Purpose," VIII, B-C, 1. 8. Petition or Complaint. — Filing Complaint. — The filing of a complaint in proceedings to foreclose the lien of a county for delinquent taxes before publi- cation of summons is not jurisdictional, notwithstanding the requirement of a statute of the state that publication of summons shall not be had until after the filing of the complaint.'^ ^° Description of Property. — A judicial sale under the Kentucky Act of March 15, 1906, c. 22, art. 3, of lands forfeited to the state for failure to list and pay taxes for certain specified years, is not lacking in due process of law because, under such statute, it is not necessary that the petition for forfeiture shall point out and describe the parts of the tract held by adverse claimants to whose benefit the forfeiture will accrue, where it is open to the defendant to show what parts of the tract are subject to sale, if less than the whole is to be sold.'^^" 551-50a. "In Washington, proceedings for the collection of taxes upon real property are in rem. Spokane Falls & N. R. Co. V. Abitz, 38 Wash. 8, 80 Pac. 193; Allen V. Peterson, 38 Wash. 599, 80 Pac. 849; Rowland v. Eskeland, 40 Wash. 253, 82 Pac. 599; Shipley v. Gaffner, 48 Wash. 169-171, 93 Pac. 211. In this last case it was said by the court: 'We have re- peatedly held that these tax foreclosure proceedings are in rem, and not against the person of the owner, and that own- ers are bound to take notice of the prop- erty they own, and pay the taxes thereon, and defend against foreclosure for de- linquent taxes, even though the property is assessed to unknown persons or to other persons.' " Ontario Land Co. v. Yordy, 212 U. S. 152, 53 L. Ed. 449, 29 S. Ct. 278. 554-73a. Ontario Land Co. v. Wilfong, 223 U. S. 543, 56 L. Ed. 544, 32 S. Ct. 328, so holding under the statute of the state of Washington. In Ontario Land Co. v. Yordy, 212 U. S. 152, 53 L. Ed. 449, 29 S. Ct. 152, it was contended that the proceedings were void because of the failure to file the cer- tificate of delinquency. The supreme court of the state declined to consider the contention, holding that it v.'as not open, as the land company had not ten- dered the delinquent taxes, as required by the laws of the state. In this court it was not explicitly urged except in a pe- tition for rehearing. The rehearing was not granted. Ontario Land Co. v. Wil- fong, 223 U. S. 543, 56 L. Ed. 544, 32 S. Ct. 328. 554-73b. Ontario Land Co. v. Wilfong, 223 U. S. 543, 56 L. Ed. 544, 32 S. Ct. 328. So held under statute of Washington. 554-73C. Filing complaint. — Ontario Land Co. v. Wilfong, 223 U. S. 543. 56 L. Ed. 544, 32 S. Ct. 328. So held under Ball Wash. Code, § 4878. Under the statute of Mich. Laws 1893, No. 206, the owner of properly whose taxes duly assessed, have remained un- paid for more than a year must be held to Ihe knowledge that the proceedings for sale are liable to be begun as soon as practicable after the 1st day of June, and that the law contemplates that they will be ended before December 1, when the sales will be made by the county treasurer. The proceedings are inscribed on the public records and otherwise made notorious. If he exercises due diligence, he can not fail to learn of their pendency and that full opportunity to defend is afforded to him. This satisfies the de- mands of due process of law. Longyear V. Toolan, 209 U. S. 414, 52 L. Ed. 859, 28 S. Ct. 506. 554-73d. Kentucky Union Co. v. Ken- tuckv, 219 U. S. 140, 55 L. Ed. 137, 31 S. Ct. 171, affirming judgments (1907), 106 S. W. 260, 127 Kv. 667. and (1908), 108 S. W. 931, 128 Ky. 610. Ill S. W. 362, 33 Kv. Law Rep. 857. 1192 A'ol. XI. TAXATION. 554-564 9. AppIvICATiox for Judgment. — The judgment in proceedings to foreclose the lien of a county for delinquent taxes under a state statute is not void for fail- ure to file the application for judgment until the day of its entry.'^^*' B-C. Advertisement and Notice — 1. Necessity and Purpose. — Pro- ceeding in Rem and Due Process. — See note 77. Notice by Publication. — The notice by publication of the pendency of pro- ceedings to sell land to satisfy a lien for unpaid taxes, prescribed by Laws Mich. 1893, p. 354, No. 206, satisfies the requirement of due process of law made by Const. U. S., Amend. 14, where the delinquent taxpayer, who has had an oppor- tunity to be heard upon the assessment, can not fail, if he exercises due vigilance, to learn of the pendency of the proceedings, and that full opportunity to defend is afiforded to him."'^'' I. Tax Deeds or Certificate and Title Passing Thereunder — 6. De- scription OF Property. — Foreclosure of the lien of a county for delinquent taxes, resulting in a tax sale and deed under which property marked "reserved" on an official plat is described as specified numbered blocks, not designated on the plat, but which would have constituted such blocks if the tract reserved had been divided into blocks and numbered, does not deprive the owner of his prop- erty without due process of law. where he not only had notice from the record that the designated blocks were listed for taxation, and that they would occupy the place marked on the plat as reserved, but also had notice that the tract marked "reserved" was not otherwise listed for taxation, and had actual knowledge that the authorities were attempting to tax the reserved tract under the description of the designated blocks. ^•^'^ 554-73e. Application for judgment. — Ontario Land Co. v. Wilfong, 223 U. S. 543, 56 L. Ed. 544, 32 S. Ct. 328. 555-77. Longyear v. Toolan, 209 U. S. 414, 52 L. Ed. 859. 28 S. Ct. 506, reaffirm- ing Leigh v. Green, 193 U. S. 79. 43 L. Ed. 623, 24 S. Ct. 390. 555-77a. Notice by publication. — Judg- ment, Toolan v. Longyear (1906), 107 N. W. 699, 144 Mich. 55, affirmed. Long- year V. Toolan, 209 U. S. 414, 52 L. Ed. 859, 28 S. Ct. 506. "The case at bar can not be distin- guished from Winona, etc., Land Co. v. Minnesota, 159 U. S. 526, 40 L. Ed. 247, 16 S. Ct. 83. * * * There a statute similar to the one now before us was held to afford due process of law. The only dis- tinction suggested is that the Minnesota statute fixed more definitely than the Michigan statute the time of filing the petition, of making the order for hear- ing, and of the hearing itself. But those times are fixed with sufficient certainty here." Longyear v. Toolan, 209 U. S. 414, 52 L. Ed. 859, 28 S. Ct. 506. "In Winona, etc., Land Co. v. Minne- sota, 159 U. S. 526, 40 L. Ed. 247, 16 S. Ct. 83, it was said, p. 537, that the four- teenth amendment was not violated 'if the owner has an opportunity to ques- tion the validity or the amount of it either before that amount is determined or in subsequent proceedings for its col- lection.' If it be assumed that the de- linquent taxpayer, who has already had an opportunity to be heard upon the as- sessment of the tax upon his property, is entitled to further notice of the pendency of proceedings to sell the land in satis- faction of the tax lien, then the statute before us requires a sufficient notice. It is no objection that the notice was only by publication." Longyear v. Toolan, 209 U. S. 414, 52 L. Ed. 859, 28 S. Ct. 506. Notice published in Sunday paper only. — See post, "As Prima Facie Evidence of Title under Statutes," VIII. I, 9, c. 564-33a. Ontario Land Co. v. Wilfong, 223 U. S. 543, 56 L. Ed. 544, 32 S. Ct. 328. In Ontario Land Co. v. Yordy. 212 U. S. 152, 53 L. Ed. 449. 29 S. Ct. 278, the proceedings were those involved in this, and it was so held that the company was charged with notice of the platting and the condition shown by the plat. It had notice from the records of the listing and assessment for taxation of these blocks, and that they would occupy the place marked upon the official plat as "reserved." The company also "had no- tice," it was said, "that the tract marked, 'reserved' was not otherwise listed or as- sessed for taxation," and that the blocks "were used by the authorities for de- scribing the 'reserved' tract." The pre- sumption of knowledge thus arising was fortified, it was said, "by actual knowl- edge 'that the authorities were attempting to assess and tax this "reserved" tract under the description of blocks 352. etc.'" Both were grounds of decision. In other words, the decision was not based alone on actual knowledge of what property was intended to be taxed, but upon the 1193 567-577 TAXATION. Vol. XI. 9. Ei^i^iCACY o? Tax Deed to Pass Title — c. As Prima Facie Evidence of Title under Statutes. — Presumption of Validity of Tax Deed. — A tax deed is not void because notice of sale was not posted nor otherwise given, as, under the laws of Washington, a tax deed is prima facie evidence not only of the va- lidity of the deed and order under which the sale was made, but also of the regu- larity of the prior proceedings.'*^'^ J. Relief against Invalid Sale and Deed — 2. Grounds of Relief. — Proof of Fraud. — Fraud in connection with purchases of land at tax and execution sales is not established by questionable evidence of value, and the fact that the purchaser was a man of great power and influence, and bought the land at much less than the value set by the owners, from which it was sought to be inferred that judges, mayors, appraisers, and possible purchasers, all were frightened or corrupt. 5''*'' M. Redemption — 1. Regulation of Right. — The grantee in a tax deed can not claim to have been denied due process of law or the equal protection of the law by a state statute requiring the giving of notice to the original owners in order to cut off the right of redemption, on the theory that, by the proceedings under the tax laws, the state acquired an absolute title, which it conveyed by the tax deed, and that the statute operated to divest such title and transfer it to an- other, where the highest state court holds that, whatever title the state held, it sold only an interest which was subject to redemption."''' IX. Refunding and Recovery Back of Taxes. B. Recovery Back — 3. Payment Must Not Be V'oluntary. — See note 89. To permit persons not affected by a statute imposing a tax to pay the sum thereby assessed, and tlien sue for its recovery on the ground that the act was void, sufficiency of the description to identify the land in connection with the notice given to appellant by the record. And this was not obiter. Union Pac. R. Co. V. Mason, etc., R. Co., 222 U. S. 237, 56 L. Ed. 180, 32 S. Ct. 86; Ontario Land Co. V. Wilfong, 223 U. S. 543, 56 L. Ed. 544. 32 S. Ct. 328. 567-44a. Ontario Land Co. z: Wilfong, 223 U. S. 543, 56 L. Ed. 544, 32 S. Ct. 328. "The tax deed under which the de- fendant in error, Wood, claims title was executed in pursuance of a sale made upon a notice published only in a Sun- day newspaper. This fact does not ap- pear from the deed itself, as an analogous infirmity appeared in the tax deed before the court in Redfield v. Parks, 132 U. S. 239, 33 L. Ed. 327, 10 S. Ct. 83. The deed upon its face was a valid instrument, and could be impeached only by evidence aliunde. The state court did not deem it necessary to consider whether such a notice was sufficient, because it held that a state statute made such a deed prima facie evidence of the sufficiency of the notice, and that possession under such a deed for the prescribed period met the requirements of the state statute of limi- tations. The decision therefore did not reach the only federal question which can be imagined with respect to this part of the case, namely, that a sale upon such a notice was wanting in due process of law, but rested upon entirely adequate grounds of a nonfederal nature." Elder V. Wood, 208 U. S. 226, 52 L. Ed. 464, 28 S. Ct. 263. 571-59a. Proof of fraud. — Ubarri v. La- borde, 214 U. S. 168, 53 L. Ed. 953, 29 S. Ct. 549. 5i2-67a. Rusch v. Duncan Land, etc., Co., 211 U. S. 526, 53 L. Ed. 312, 29 S- Ct. 172. So holding under M:ch. Pub. Laws 1897, Act No. 229. Where a tax title was taken subject to redemption, it can not be said to be divested without due process of law if redemption were exercised according to law. How redemption can be exer- cised and how it can be cut ofif depends upon the provisions of the statute. A purchaser of a tax title did not take an indefeasible title, where the deed which he received from the state was expressly made subject to a right of redemption imposed by statute. Whatever the title which the state held, it sold an interest in the lands which was liable to be di- vested by redemption. Rusch v. Duncan Land, etc., Co., 211 U. S. 526, 53 L. Ed. 312, 29 S. Ct. 172. 577-89. Payment must not be voluntary. — Gaar, etc., Co. v. Shannon, 223 U. S. 468, 56 L. Ed. 510, 32 S. Ct. 236. See, also. Southern R. Co. v. King, 217 U. S. 524. 54 L. Ed. 868, 30 S. Ct. 594; Leathe f. Thomas, 207 U. S. 93, 52 L. Ed. 118, 28 S. Ct. 30. 1194 Vol. XL TAX COLLECTOR. 577-583 would reverse the rule that "one who would strike down a state statute as viola- tive of the federal constitution must bring himself by proper averments and showing witliin the class as to whom the act thus attacked is unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates as to deprive him of rights protected by the federal constitu- tion."S9^ Compulsory Payment. — See note 90. X. Disposition and Expenditure of Taxes. F. Agreement by Municipality to Pay Judgments in Order of Rendi- tion. — A municipality authorized by 1 Wilson's Rev. & Ann. St. Okl. 1903, § 466, to levy an annual tax to create a judgment fund, may make a valid agree- ment with its judgment creditors to pay the judgments against it out of such fund, in the order of their rendition. ^'^ TAXATION OF COSTS.— See ante, Appeal and Error, p. 34; Costs, p. 396. TAX COLLECTOR.— See ante. Taxation, p. 1156. 5?7-89a. Gaar, etc., Co. v. Shannon, 223 U. S. 46S, .56 L. Ed. 510, 32 S. Ct. 236. A foreign corporation doing only an interstate business, and therefore not li- able to the franchise tax imposed by Tex. Laws 1905, chap. 19, can^not recover back the amount of such tax, as paid under the duress of the self-executing pro- visions of the statute, under which a cor- poration failing to pay the tax incurs a penalty and forfeit.'^ its right to do busi- ness in tiie state, and its right to sue. Gaar, etc., Co. v. Shannon, 223 U. S. 468, 56 L. Ed. 510, 32 S. Ct. 236. 578-90. Payment under statute whose self-executing provisions amount to duress. — The paj'ment by a foreign cor- poration of the franchise tax imposed by Tex. Laws 1905, chap. 19, to escape the consequences of the self-executing pro- visions of the statute, under which a cor- poration failing to pay the tax incurs a penalty and forfeits its right to do busi- ness in the state, and its right to sue, is not voluntary, so as to defeat the right to recover back the tax as paid under protest. Gaar, etc., Co. -u. Shannon, 223 U. S. 468, 56 L. Ed. 510. 32 S. Ct. 236. "Neither a statute imposing a tax, nor the execution thereunder, nor a mere de- mand for payment, is treated as duress. It does not necessarily follow that there will be duress of goods. Or, if there is, the citizen, to avoid the consequences of the duress, may pay the money, regain the use of his property, and maintain a suit for the recovery of what has been exacted from him. The legal remedy redresses the wrong. But he has the same right to sue if he pays under com- pulsion of a statute whose self-executing -provisions amount to duress." Gaar, etc., Co. V. Shannon, 223 U. S. 468, 56 L. Ed. 510, 32 S. Ct. 236. "An act which declares that wiiere the franchise tax is not paid by a given date, a penalty of 25 per cent shall be incurred, the license of the company shall be can- celed, and the right to sue shall be lost, operates much more as duress than a levy on a limited amount of property. Payment to avoid such consequences is not voluntary but compulsory, and may be recovered back. Swift Co. v. United States, 111 U. S. 22, 28 L. Ed. 341, 4 S. Ct. 244; Robertson v. Frank Bros. Co., 132 U. S. 17. 23, 33 L. Ed. 236, 10 S. Ct. 5; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. Ed. 1013, 29 S. Ct. 671; Atchison, etc., R. Co. v. O'Connor [223 U. S. 280, 56 L. Ed. 436, 32 S. Ct. 216]. Otherwise, plaintiff might be without any remedy whatever." Gaar. etc., Co. V. Shannon, 223 U. S. 468, 56 L. Ed. 510, 32 S. Ct. 236. "In Arkansas Bldg., etc., Ass'n v. Mad- den, 175 U. S. 269, 44 L. Ed. 159, 20 S. Ct. 119, it was held that a taxpayer was not entitled to an injunction against the entorcement of a similar statute of the state of Texas, unless he could show that there was no adequate remedy at law. And, as payment under such an act was treated as compulsory, for which suit might be maintained, and as there was nothing to indicate inability of com- plainant to pay, or of the defendant to respond to a judgment, the bill was dis- missed without prejudice. That neces- sarily recognized that the plaintiff had the right to pay under protest, sue the office for the amount exacted, and re- cover it back in case it should be made to appear that the statute was void." Gaar, etc., Co. 7'. Shannon, 223 U. S. 468, 56 L. Ed. 510. 32 S. Ct. 236. 583-9a. Judgment. 87 P. 292, 17 Okl. 1 (;:.>. reversf'd Beadles t'. Snivscr. 209 U. S. 393. 52 T<. Ed. 840. 28 S. Ct. 522. 1195 586 TBLEGRAPHS AND TBLBPHONBS. Vol. XI. TAX DEED.— See ante, Taxation, p. 1156. TAXES. — See ante, Licenses, p. 826; Revenue Laws, p. 1071; Succession Taxes, p. 1149; Taxation, p. 1156. TAX LEVY.— See ante. Taxation, p. 1156. TAX SALE.— See ante, Quieting Title, p. 1040; Taxation, p. 1156. TELEGRAMS. — See post. Telegraphs and Telephones. TELEGRAPHS AND TELEPHONES. III. Construction and Maintenance, 1196. A. The Right of Way, 1196. 1. Over Streets and Highways, 1196. a. Right of Telegraph Companies, 1196. b. Right of Telephone Companies, 1197. IV. Operation, 1198. A. Power of State to Regulate Price of Service, 1198. Ay^. Presumption in Favor of Rates Established by a State Commission. 1199. A%. Power of Municipal Corporations to Regulate Charges for Service, 1199. VI. Duties and Liabilities as to Messages, 1200. C. Validity of Stipulations against Liability for Negligence, 1200. E. Power of State to Impose Penalty for Negligent Failure to Transmit a Message Promptly, 1200. VII. Compensation, 1200. C. What Constitutes Capital upon Which a Company Is Entitled to Fair Return, 1200. IX. Suit to Enjoin Enforcement of Rates, 1200. CROSS REFERENCES. See the title Telegraphs and Telephones, vol. 11, p. 584, and references there given. In addition, see ante, Constitutional Law, p. 264. As to state statutes relating to telegraph companies considered as regulations of interstate commerce, see ante. Interstate and Foreign Commerce, p. 689. As to the exaction from a foreign telegraph company of a charter fee as a con- dition of continuing to do local business in a state, see ante. Interstate and Foreign Commerce, p. 689. III. Construction and Maintenance. A. The Right of Way — 1. Over Streets and Highways — a. Right of Telegraph Companies. — The right of a telegraph company accepting the provi- sions of the Act of Congress of July 24, 1866,^^ to construct, maintain and oper- ate lines over the post roads of the United States, is subject to reasonable munic- ipal regulation.-^'' 586-5a. 14 Stat, at L. 221, chap. 230, accepting the provisions of the Act of Rev. Stat., § .5263, et seq., U. S. Comp. July 24, 18G6, giving the right to con- stat. 1901, p. 3579. struct, ' maintain, and operate lines over 586-5b. Municipal regulation of lines the post roads of the United States, is over post roads. — Western Union Tel. not exceeded, as granting arbitrary dis- Co. V. Richmond, 224 U. S. 160, 56 L. Ed. cretion to municipal officers, by an ordi- 710, 32 S. Ct. 449. nance which leaves to the determination The municipal power to make reason- . of the city engineer the size, quality, char- able regulations respecting the occupancy acter, number, condition, appearance, and of the city streets by a telegraph company manner of erection of poles and wires, 1196 Vol. XL TELEGRAPHS AND TELEPHONES. 586 b. Right of Telephone Companies. — The assent of a municipality, when once given conformably to the charter of a telephone company, empowering the latter, with and by the consent of the city council, to construct and maintain a telephone system in the city, perfects the company's franchise, which, being a legislative grant, can not thereafter be repealed, nullified, or forfeited by municipal ordi- nance.'^'' Whether the right to use the streets of a municipality for telephone purposes, acquired by a telephone company conformably to its charter, by which it was empowered with and by the consent of the municipal council to construct and maintain a telephone system in the municipality, was withdrawn or made subject to municipal revocation, must be determined by a proper construction of the constitutional provision or statute alleged to have that eft'ect.''"^ The right to and to the judgment of other officials the safety and suitableness of poles, wires, at- tachments, insulations, etc., and which empowers the committee on streets to re- quire permission to be given to others to place lighting wires upon the poles, where, in the committee's opinion, they will not interfere with the owner's busi- ness, and which authorizes such commit- tee to pass upon underground plans, and invests other officials with supervisory powers over the carrying out of such plans, including the laying of conduits and the replacement of pavements. West- ern Union Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 710, 32 S. Ct. 449. The property of a telegraph company accepting the provisions of the Act of July 24, 1866, giving the right to construct, maintain, and operate, lines over the post roads of the United States, is not taken without due process of law by a munici- pal ordinance which demands as a condi- tion of the establishment of poles ^nd conduits in the city streets that positions shall be reserved upon the poles for the city's wires, and that vinderground con- duits shall provide for 30 per cent in- crease, and shall carry the city's wires free of charge, one duct being reserved for them, and that space be left in the conduits for the wires of third parties, to i)e used on permission by the city and compensation, and which provides for moving the conduits when necessary, at the company's expense, and imposes a specific money charge for each pole or underground mile of wire. Western Union Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 710, 32 S. Ct. 449. An annual municipal charge of $2 per pole, and the same sum for each mile of underground wire, which has been paid for many years without complaint, can pot be said to be so unreasonable as to deny due process of law to a telegraph com- pany occupying the city streets under the authority of the Act of July 24, 1866, giv- ing the telegraph companies accepting its provisions the right to construct, main- tain, and operate lines over the post roads of the United States. Western Union Tel. Co. z'. Richmond, 224 U. S. 160, 56 L. Ed. 710, 32 S. Ct. 449. See ante, DUE PROCESS OF LAW, p. 475. Limiting by municipal ordinance the privilege of a telegraph company as to conduits to fifteen years, and providing that after that time the city may impose such restrictions, conditions, and charges as it sees fit, or may order the conduits removed, can not be regarded as an at- tempt to make the telegraph company contract itself out of the benefit of the Act of July 24, 1866, under which it has the right to construct, maintain, and op- erate lines over the post roads of the United States; especiall}^ in view of an amendment to the ordinance, providing that none of its obligations shall interfere with rights under that act. Western Union Tel. Co. v. Richmond, 224 U. S. 160, 56 L. Ed. 710, 32 S. Ct. 449. 586-6a. Assent of municipality given conformably to charter of company. — Louisville z'. Cumberland Tel., etc., Co.. 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. Such a grant empowering a telephone company to construct and maintain a tel- ephone sj^stem in Louisville, Kentucky, did not expire when, by Ky. Stat., § 2742, Louisville was made a city of the first class. Louisville ?'. Cumberland Tel., etc., Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572 586-6b. Withdravsral of right to use city streets — Construction of constitutional provision or statute. — Louisville v. Cum- berland Tel., etc., Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. The right so acquired by a telephone company, to construct and maintain a telephone system in Louisville, Kentucky, was not withdrawn or made subject to municipal revocation by Ky. Const. 1891, §§ 156, 163, 164, 199, or Ky. Stat., §§ 2742, 2783, 2825, conferring upon municipalities the right to grant street franchises, or by Ky. Stat., § 573, enacted tmder the reserve power, repealing all special corporate privileges, since such repeal relates to ex- clusive grants, tax exemptions, monopo- lies, and similar immunities, and the other provisions are in the main prospective, the constitution, while limiting for the future the power to sell street franchises, 1197 586 TELEGRAPHS AND TELEPHONES. Vol. XI use the streets of a city for telephone purposes, possessed by a telephone com- pany under its charter, passes to a new corporation formed by consolidation con- formably to a statute, which declares that the consolidated company shall be vested with all the property, business, assets, and effects of the constituent com- panies, without deed or transfer, and bound for all their contracts and liabilities.^*^ A municipality may by its conduct be estopped from claiming that its consent to the use of its streets by a telephone company for telephone purposes was inopera- tive, and from denying that a consolidated company has succeeded to the rights and obligations of its predecessor.*^*^ Some of the peculiar provisions of consti- tutional enactments and statutes authorizing telephone companies to occupy streets or highways have received the interpretation of the supreme court.*'*' IV. Operation. A. Power of State to Regulate Price of Service. — The power to fix, subject to constitutional limits, the charges of such a business as the furnishing distinctly protecting the interests of those public-utility companies whose charters had been theretofore granted conferring such rights, where work had in good faitli been begun thereunder. Louisville v. Cumberland Tel., etc., Co., 234 U. S. 649, 5b I... Ed. 934, 32 S. Ct. .572. 686-60. Effect of consolidation. — Louis- ville V. Cumberland Tel., etc., Co.. 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. 586~6d. Estoppel. — Louisville v. Cum- berland Tel., etc., Co., 224 U. S. 649, 56 L. Ed.^ 934, 32 S. Ct. 572. The demand by a municipality from a consolidated telephone company of the bond previously required of the origuial company, and the expenditure of large sums by the consolidated company in ex- tending and improving the telephone sys tern, with the knowledge and acquiescence of the city, and in reliance upon the stat- utory conveyance of the street rights, es- tops the city from claiming that its con- sent to the use of the city streets by the original company for telephone purposes was inoperative, and from denying that the consolidated company had succeeded to the rights and obligations of its pred- ecessor. Louisville v. Cumberland Tel., etc., Co., 224 U. S. 649, 56 L. Ed. 934, 32 S. Ct. 572. 586-6e. No grant to a telephone com- pany of the right to occupy the streets of a city without its consent, which will be protected by the contract clause of the federal constitution, can be deduced from the amendment of October 10, 1911, to Cal. Const., art. 11, § 19, under which per- sons or corporations may establish and operate works for supplying the inhab- itants of a municipality with telephone service "upon such conditions and under such regulations as the municipality mav prescribe under its organic law, on con- dition that the municipal government shall have the right to regulate the charges." Pomona v. Sunset Tel., etc.. Co.. 224 U. S. 330, 56 L. Ed. 788, 32 S. Ct 477. A telephone company can claim no con- tract right under the amendment of March 20, 1905, to Cal. Civ. Code, § 536, to oc- cupy the streets of a city for local busi- ness without the city's consent, in view of the passage, before the date when such amendment by its terms was to go into efifect, of the franchise Act of March 22,. 1905. taking effect iminediately, and pro- viding that every franchise to erect or lay telephone wires, except "telephone lines doing an interstate business." shall be granted upon the conditions named i)i such act, which leaves franchise grants generally to the local subdivisions con- cerned, and contains a general repealing clause naming certain exceptions, of which § 536 is not one. Pomona v. Sun- set. Tel., etc., Co., 224 U. S. 330, 56 L. Ed. 788, 32 S. Ct. 477. A contract right to maintain only through interstate telephone wires in the city streets, and not to maintain the poles and wires connecting local subscribers, is all that can be gathered from the ex- ceptions in favor of "telephone lines doing interstate business," made by Cal. Act of March 22, 1905, which repealed, before it took efifect, the Act of March 20, 1905, amending Cal. Civ. Code, § 536, so as to include telephone companies among the corporations which could occupy the citj' streets without municipal consent. Po- mona V. Sunset Tel., etc., Co., 224 U. S. 330, 56 L. Ed. 788, 32 S. Ct. 477. Words "telegraph corporations" do not include telephone corporations. — The words "telegraph corporations" in § 536 of the Civil Code of California, which provides that "Telegraph corporations may construct lines of telegraph along and upon any public road or highway * * * and may erect poles * * * Jn such manner and at such points as not to in- commode the public use of the road," do- not include telephone corporations. Po- mona V. Sunset Tel., etc., Co., 224 U. S_ 330, 343, 56 L. Ed. 788, 32 S. Ct. 477. 1198 \ol. XI TELEGRAPHS AND TELEPHONES. 587 to the public of telephone service is among the powers of government, is legisla- tive in its character, continuing in its nature, and cai)able of being vested in a municipal corporation. ^^'^ A|. Presumption in Favor of Rates Established by a State Commis- sion. — The presumption in favor of the correctness of telephone rates estab- lished by a state commission obtains, although the data upon which the commis- sion acted may have been insufficient, so long as the rates adopted were not based entirely upon arbitrary conjecture. ^-^ A|. Power of Municipal Corporations to Regulate Charges for Serv- ice. — The power of a state to tix, subject to constitutional limits, the charges of a telephone company for furnishing to the public telephone service, may be delegated to a municipal corporation. ^-"^ Xo valid objection to intrusting a mu- nicipal council with the power to regulate telephone rates can be based upon the theory that the council is not an impartial tribunal because it is, in effect, made a judge in its own case, or that the judgment and sense of justice of the council- men will be distorted by their dependence upon the wall of the people which re- sults from a provision in the city charter empowering 25 per cent, of the electors to recall a member of the council and require him again to stand for election. ^^c Municipal authority to enter into a contract fixing unalterably, during the term of the franchise, charges for telephone service, and disabling itself from exercis- ing the charter powder of regulation, must, at the very least, necessarily be implied from the controlling statutes, even if it be conceded that anything less than a clear and affirmative legislative expression is a sufficient foundation upon which to rest an authoritv of this nature.^-'' 587-lla. Power to fix charges for tele- phone service. — Home Te!., etc., Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. 587-12a. Presumption in favor of rates established by a state commission. — Railroad Comm. v. Cumberland Tel., etc., Co., 212 U. S. 414, 53 L. Ed. 577, 29 S. Ct. 357. reversing 156 Fed. Rep. 823. 587-12b. Power to fix charges may be delegated to a municipal corporation. — Home Tel., etc., Co. v. Los Angeles, 211 V. S. 265, 53 L. Ed. 176, 20 ?. Ct. 50, af- firming 155 Fed. Rep. 554. Municipal ordinances fixing telephone rates do not deny the due process of law guaranteed by U. S. Const., fourteenth amendment, because the section ot the municipal charter under the authority of which they were enacted does not ex- pressly provide for notice and hearing, where both notice and an opportunity to be heard were in fact accorded by ordi- nances providing that the rates be fixed at a meeting of the citj"- cotxncil held in February in each year, and requiring the telephone company to furnish the citv council annually in that month a state- ment of its receipts, expenditures, and property employed in the business. Home Tel., etc., Co. v. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. Municipal regulation of rates not nec- essarily denying equal protection of laws. — ^lunicipal regulation of the rates which a telephone company may charge, on a lower scale than those prescribed for a competitor, does not necessarily deny the equal protection of the lav/s, since such competitor may bring its patrons into communicatio;! with a larger number of persons, dwelling in a more widely-ex- tended territory, and may render much more valuable service. Home Tel., etc., Co. V. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50. 587-12C. Objections to intrustmg munic- ipal council with power to regulate rates, held not valid. — Home Tel., etc., Co. r. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50, affirming 155 Fed. Rep. 554. 587-12d. Power of municipality, by contract, to disable itself from exercising power of regulation. — Home Tel., etc., Co. :•. Los Angeles, 211 U. S. 265, 53 L. Ed. 176, 29 S. Ct. 50, affirming 155 Fed. Rep. 554. Charter authority to regulate telephone service and to fix and determine the charges therefor does not empower a mu- nicipality to enter into a contract fixing unalterably, during the term of the fran- chise, the charges for such service, and disabling itself from exercising the power of regulation. Decree, 155 Fed. 554, af- firmed. Home Tel., etc., Co. :•. Los An- geles, 211 U. S. 265. 53 L. Ed. 176, 29 S. Ct. 50. Municipal authority to contract away the. charter power to regulate telephone rates can not be gathered from the pro- visions of the California statute, Act March 11, 1901 (St. Cal. 1901, p. 265, c. 103), under which the telephone company obtained its franchise from the city, that application for a franchise must be filed,. ] 199 588-589 TEND. Vol. XI. VI. Duties and Liabilities as to Messages. C, Validity of Stipulations against Liability for Negligence. — Priv- ileges and immunities of citizens of the United States are not abridged, nor is due process of law denied, contrary to the fourteenth amendment of the federal constitution, by a state statute under which, as construed by the state courts, a telegraph company can not limit its liability for its negligent failure to deliver a telegram addressed to a person in another state. ^'^^ Nor is the equal protection of the laws denied telegraph companies and the persons with whom it does busi- ness by such a statute, although express companies and other common carriers may, by contract, limit their liability in this respect. i"*" E. Power of State to Impose Penalty for Negligent Failure to Trans- mit a Message Promptly. — A state statute under which a penalty is incurred by a telegraph company which negligently fails to transmit within the state as promptly as practicable a message received at an office in the state, for trans- mission to a person in another state, is a valid exercise of the power of the state, in the absence of any legislation by congress on the subject. ^^'^ VII. Compensation. C. What Constitutes Capital upon Which a Company Is Entitled to Fair Return. — No part of the depreciation fund accumulated by a telephone company from its receipts can be added to the capital, upon which the company is entitled to a fair return from rates established by a state commission. ^^^^ IX. Suit to Enjoin Enforcement of Rates. The burden of showing what part, if any, of the depreciation fund accumulated by a telephone company from its receipts, was added to the capital, upon which dividends are to be paid, rests upon the company seeking to enjoin, as confisca- tory and unreasonable, the enforcement of rates established by a state commis- sion. ^^^ TELEPHONES.— See ante. Telegil^phs and Tei^Ephones, p. 1196. TEMPORARY INJUNCTION.— See ante. Injunctions, p. 657. TENANT. — See ante, Landi^ord and Tenant, p. 820. TENANTS IN COMMON.— See ante, Joint Tenants and Tenants in Com- mon, p. 806. TEND. — As to contracts that tend to restrain trade, see ante, Monopolies AND Corporate Trusts, p. 874. and, in the discretion of the council, pub- TIONAL LAW, p. 264; DUE PROCESS lished; that the city is entitled to a per- OF LAW, p. 475. centage of the receipts; that the grantee 588-17b. Equal protection. — Western must give bond to perform every term Union Tel. Co. v. Commercial Milling and condition of the franchise; that no Co., 218 U. S. 406, 54 L. Ed. 1088, 31 S. condition shall be inserted which restricts Ct. 59. competition, or favors one person against 588-21a. Power of state to impose pen- another; and that the franchise must be alty for negligent failure to transmit a sold to the highest bidder, especially message promptly. — Western Union Tel. since the first section of the act provides Co. v. Crovo, 220 U. S. B64, 55 L. Ed. 498, that franchises "shall be granted upon 31 S. Ct. 399. the conditions in this act provided, and 589-23a. What constitutes the capital not otherwise." Decree (C. C. 1907), 155 upon which a company is entitled to a Fed. 554, affirmed. Home Tel., etc., Co. fair return from rates. — Railroad Comm. V. Los Angeles, 211 U. S. 265. 53 L. £d. t'. Cumberland Tel., etc., Co., 212 U. S. 176, 29 S. Ct. 50. 414, 53 L. Ed. 577. 29 S. Ct. 357. 588-17a. Constitutionality of statute 589-25a. Burden of proof in suit to en- prohibiting limitation of liability upheld. loin enforcement of rates. — Railroad —Western Union Tel. Co. v. Commercial Comm. v. Cumberland Tel., etc., Co., 212 Milling Co., 218 U. S. 406, 54 L. Ed. 1088, U. S. 414, 53 L- Ed. 577, 29 S. Ct. 357, re- 31 S. Ct. 59. See ante, CONSTITU- versing 156 Fed. Rep. 823. 1200 Vol. XL TBRRITORIBS. TENDER. — See the title Tender, vol. 11, p. 590, and references there given. TEN-HOUR LABOR LAW.— See ante, Labor, p. 816. TERMINAL FACILITIES.— See ante, Carriers, p. 216; Monopolies and Corporate Trusts, p. 874; Railroads, p. 1046. TERM OF COURT.— See ante, Clerks oe Court, p. 241; Courts, p. 398; Removal of Causes, p. 1058. TERM OF OFFICER.— See ante, Public Officers, p. 1035. TERRITORIAL COURTS,— See ante, Courts, p. 398; Exceptions, Bill of, and Statement of Facts on Appeal, p. 559. TERRITORIAL GOVERNMENT.— See ante, Constitutional Law, p. 264. TERRITORIAL JURISDICTION.— See ante, Equity, p. 550. TERRITORIES. CROSS REFERENCES. See references under Territories, vol. 11, p. 593. In addition, see ante, Appeal and Error, p. 34 ; ' Constitutional Law, p. 264; Courts, p. 398; Master and Servant, p. 851. As to power of congress to enact a statute requiring that territorial legislation shall be given the same faith and credit which it has by law or usage in the courts of the territory enacting it, see ante. Constitutional Law, p. 264. As to limi- tation upon general power of eminent domain assumed to exist, by provisions of article 2 of the ordinance of 1787 for the government of the Northwest territory, see ante. Eminent Domain, p. 537. As to Alaska being a territory within the terms of the Interstate Commerce Act, see ante, Interstate and Foreign Com- merce, p. 689. Construction of Organic Acts. — Some of the provisions of the organic acts of territories have been construed by the supreme court of the L'nited States.i 1. Authority to legislate concerning per- sonal injuries and rights of action there- for was conferred on the territory of New Mexico by Organic Act Sept. 9, 1850, c. 49, 9 Stat. 449, extending si:ch authority to all rightful subjects of legislation con- sistent with the constitution of the United States, although such act also provides that the constitution and all laws of the United States which are not locally inap- plicable shall have the same force and ef- fect within the territory as elsewhere within the United States. Judgment (Tex. Civ. App. 1907), 99 S. W. 190, af- firmed. Atchison, etc., R. Co. z\ Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. Granting of special privileges forbid- den. — The granting of special privileges by any form of legislative action, and not merely the conferring of such privileges as a part of the grant of a forbidden priv- ate charter, was what was prohibited by the provision of the Washington Organic Act of March 2, 1867 (14 Stat, at L. 426, chap. 150), that the territorial legislature should not grant private charters or special privileges, but might enact general incorporation acts. Berrj'man v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. The generic prohibition against the granting of special privileges, made l)y the Washington Organic Act of March 2, 1867, can not be construed as intended to forbid merely the creation of such priv- ileges as a legislative grant of an exclu- sive right to ferries, bridges, etc., even if it be conceded that such grants were a common form of territorial legislative abuse prior to the adoption of that stat- ute, and were the generating cause of the insertion of this prohibition. Berrjanan V. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. A territorial statute giving perpetual succession to an incorporated educational institution, and endowing it with a per- petual exemption from taxation as to all its propertj', real and personal, grants an especial privilege within the meaning of the provisions of the Washington Or- ganic Act of March 2, 1867, that the terri- torial legislature shall not grant private charters or especial privileges, but may enact general incorporation acts. Berry- man V. Board. 222 U. S. 334, 56 L. Ed. 235. r;2 S. Ct. 147. The power of the territor}' of Wash- ington to accept a deed of land as a site for the seat of government, and the erec- tion of a capitol building, even if not in- 12 U S Enc— 76 1201 2-598 TICKETS. Vol. XL Effect of Permission Granted by Organic Act to Enact Local or Spe- cial Laws. — General prohibitions in the Act of July 30, 1886, c. 818, 24 St. 170, against the enactment by territorial Legislatures of local or special laws in certain enumerated cases, have no application where specific permission to the contrary is granted by the organic act applying to a particular territory.^ The assent of congress to the grant of an especial privilege by the territorial legislature, contrary to the express provisions of the organic act, can not be implied from its failure to disapprove such enactment.^ The annulment by congress of territorial legislation conformably to the provisions of the organic act establishing the territory, that all territorial laws shall be submitted to congress, and, if disapproved, shall be null and of no effect, does not relate back so as to render invalid from the time of enactment territorial laws duly enacted and within the legislative power of the territory, but such laws remain in force until congress exerts its authority.-* Status of Porto Rico. — Porto Rico is a completely organized territory al- though not a territory incorporated into the United States.^ TESTAMENTARY CAPACITY.— See post. Wills. TESTATORS' ESTATES. — See ante, Executors and Administrators, p. 564. TESTIMONY. — See ante, EvidkncE, p. 558; Expert and Opinion Evi- dence, p. 569; Hearsay Evidence, p. 618. THEIR.— See note 2a. THEREAFTER.— See note 3. TICKET BROKERS.— See ante. Carriers, p. 216. TICKETS.— See ante. Carriers, p. 216. cident to the organization of the territorial government, is implied from the provi- sions of Organic Act March 2, 1853 (lO Stat. 177, c. 90) § 13, granting a sum of money "for the erection of suitable build- ings at the seat of government." Judg- ment (1907), 91 P. 15. 46 Wash. 585, af- firmed. Sylvester %'. Washington, 215 U.' S. 80, 54 L. Ed. 101, 30 S. Ct. 25. 2. Effect of permission granted by Or- ganic Act to enact local or special laws. — Ponce V. Roman Catholic Apostolic Church, 210 U. S. 296, 52 L. Ed. 1068, 28 S. Ct. 737. 3. Effect of failure by congress to dis- approve grant of an especial privilege. — Berryman v. Board, 222 U. S. 334, 56 L. Ed. 225, 32 S. Ct. 147. 4. Effect of annulment by congress of territorial legislation. — Atkinson, etc., R. Co. V. Sowers, 213 U. S. 55, 53 L. Ed. 695, 29 S. Ct. 397. 5. Status of Porto Rico. — Kopel v. Bing- ham, 211 U. S. 468, 53 L. Ed. 286, 29 S. Ct. 190. 598-2a. Their investments. — A charter granted to a railroad company by the state of Georgia provided: "The stock of the said company and its branches shall be exempt from taxation for and during the term of seven years from and after the completion of the said railroads, or any of them;" and after that, "shall be subject to a tax not exceeding one-halt of one per cent, per annum, on the net proceeds of their investments." It was suggested that by "their investments" was meant the investments of the sharehold- ers in the company's stock. The court said: "This interpretation is based upon the use of the plural their; but in many places in this same charter the company is referred to in the plural. As this same act provides for the organization of one or more companies to construct branch lines and extends to them the same ta.x exemption, it is grammatically correct to read their as referring to this plurality of companies. That 'stock' in the first clause means capital, and 'their invest- ments,' the property into which the com- pany's capital has gone, seems in any view you take of it the most rational in- terpretation of the matter. That the only mode of taxation stipulated for after the period of total exemption is a tax upon the net income of the company's property is seemingly the plain and obvious mean- ing of this contract." Wright v. Georgia R., etc., Co., 216 U. S. 420, 54 L. Ed. 544, 30 S. Ct. 242. See ante, CORPORA- TIONS, p. 381; TAXATION, p. 1156. 598-3. Thereafter. — See Minneapolis, etc., R. Co. V. Doughty, 208 U. S. 251, 258, 52 L. Ed. 474, 28 S. Ct. 291. See, also, ante, AFTER, p. 16. And see ante, PUBLIC LANDS, p. 1012. 1202 Vol. XL TRADEMARKS, TRADENAMES, ETC. 602 TIDAL WATERS.— See ante, Boundaries, p. 206; Navigable Waters, p. 914; post, Waters and Watercourses. TIDE LANDS. — See ante, Limitation of Actions and Adverse Posses- sion, p. 828; Navigable Waters, p. 914. As to tide land commissioners, see ante, Estoppel, 553. TIMBER.— See ante, Mines and ^Iinerals, p. 865; Public Lands, p. 1012; post, Trees and Timber. TIMBER LAND.— See ante, Public Lands, p. 1012. TIME. — See the title Time, vol. 11, p. 600, and references there given. TITULO.— See note 1. TOBACCO.— See ante. Revenue Laws, p. 1071. TOLLROADS AND TURNPIKES.— See post, Turnpikes and Tollroads. TO MONOPOLIZE.— See ante. Monopolies and Corporate Trusts, p. 874. TONNAGE DUTIES.— See the title Tonnage Duties, vol. 11, p. 604, and references there given. TORTS. — See the title Torts, vol. 11, p. 608, and references there given. And see ante, Officers and Agents of Private Corporations, p. 925. TOWAGE, TUGS AND TOWS.— See the title Towage, Tugs and Tows, vol. 11, p. 610. and references there given. TOWNS AND TOWNSHIPS.— See the title Towns and Townships, vol. 11, p. 613, and references there given. TOWN SITE.— See ante. Public Lands, p. 1012. TRADE— TRADING— TRADER.— See ante. Merchant, Mercantile- Merchandise, p. 861. TRADE COMBINATIONS.— See ante. Monopolies and Corporate Trusts, p. 874. TRADEMARKS, TRADENAMES AND UNFAIR COMPETITION. I. Trademarks, 1204. A. General Considerations, 1204. 1. Definition, 1204. B. Office and Purpose of. 1204. C. What ^lay Be Adopted as Trademarks. 1204. 1. In General, 1204. 4. Generic or Descriptive Terms, 1204. a. In General, 1204. 5. Geographical Names, 1204. H. Abandonment or Termination of Right, 1205. I. What Constitutes an Infringement, 1205. 1. In General, 1205. II. Tradenames, 1205. III. Unfair Competition, 1206. B. In General. 1206. 602-1. Justo titulo. — "The phrase justo which is in question.' Section 1952. titulo is explained to mean a title such (Code of Philippine Islands.) Of course as to transfer the property, Schmidt, this does not mean that the titulo must Civil Law of Spain and Mexico, 289, 290; have been effective in the particular see Partidas, 1, 18, T. 29, P. 3; or as it case, for then prescription would be un- is defined in the civil code of a few years necessary." Tiglao v. Insular Govern- later than the decree of 1880, 'that which ment, 215 U. S. 410, 416, 54 L. Ed. 257, 30 legally suffices to transfer the ownership S. Ct. 129. See ante, PRESCRIPTION, or property right, the prescription of p. 999. 1203 617-619 TRADEMARKS, TRADENAMES, ETC. Vol. XI. CROSS REFERENCES. See the title Trademarks, Tradenames and Unfair Competition, vol. 11, p. 617, and references there given. In addition, see ante, Appeal and Error, p. 34; International Law, p. 686. As to jurisdiction of the federal supreme court on the issue of unfair competi- tion on appeal from the circuit court of appeals, see ante, Appeal and Error, p. 34. As to how a final decree of a circuit court of appeals in a suit to enjoin the infringement of a trademark may be brought up for review by the federal su- preme court, see ante, Appeal and Error, p. 34 ; Certiorari, p. 228. xA.s to con- tempt of injunction decree granting relief against unfair competition and in- fringement of trademarks, see ante. Contempt, p. 367. As to jurisdiction of United States courts over trademarks, see ante. Courts, p. 398. I. Trademarks. A. General Considerations — 1. Definition. — The term trademark has been in use from a very early date ; and, generally speaking, means a distinctive mark of authenticity, through which the products of particular manufacturers or the vendible commodities of particular merchants may be distinguished from those of others. ^^ B. Office and Purpose of. — See note 7. C. What May Be Adopted as Trademarks — 1. In General. — See note 9. A trademark may consist in any symbol or in any form of words ; but as its office is to point out distinctively the origin or ownership of the articles to which it is affixed, it follows that no sign or form of words can be appropriated as a valid trademark which, from the nature of the fact conveyed by its primary meaning, others may employ with equal truth, and with equal right, for the same purpose.^'' A trademark must be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association.^'' No one can claim protection for the exclusive use of a trademark or tradename which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. If he could, the public would be injured rather than protected, for competition would be destroyed.^'' 4. Generic or Descriptive Terms — a. In General. — See note 15. 5. Geographical Names. — Names which are merely geographical can not be 617-la. Definition of trademark.— Stand- Co., 220 U. S. 446, 55 L- Ed. 536, 31 S. Ct. ard Paint Co. v. Trinidad, etc., Mfg. Co., 456. 220 U. S. 446, 55 L. Ed. 536, 31 S. Ct. 456. 618-9b. Must be distinctive.— Standard 618-7. The office of a trademark is to Paint Co. v. Trinidad, etc., Mfg. Co., 220 pomt out distinctively the origin or own- u. S. 446, 55 L. Ed. 536, 31 S. Ct. 456. ership of the articles to which it is affixed 618-9C. Exclusive use creating monop- Standard Paint Co. v. Trinidad, etc., Mfg. , "e^* . ^ m ■ ^ n t -.-a i , tK r^ oon TT Q 11A rn T T^A r-yp oi c rv ^'^V- — Standard Paint Co. 2: Irinidad, etc., Co., 220 U. S. 446, 55 L. Ed. .36. 31 S. Ct. ^/^^ ^^^ ^^^ u. S. 446, 55 L. Ed. 536, 31 S. Ct. 456. 456. 618-9. What may be used as trademarks. . . —The insignia of the Carthusian monks— 619-15. Generic or descriptive terms.— a globe, cross, and seven stars— with the Standard Paint Co. v. Trinidad, etc., Mfg. words "Gde. Chartreuse" underneath, Co., 220 U. S. 446, 454, 55 L. Ed. 536, 31 S. could be registered as a valid trademark Ct. 456. for a liqueur made by those monks at their The word "Ruberoid" is not the subject monastery of La Grande Chartreuse, as of exclusive appropriation as a trademark could also a label bearing the inscription for a flexible waterproof roofing, since. "Liqueur Fabriquee a la Gde. Chartre- even though the roofing contains no rub- use," with the same ecclesiastical symbols ber, the word is descriptive, and not in- and a fac-simile of the signature of a dicative of origin or ownership. Stand- former procureur of the order. Baglin v. ard Paint Co. v. Trinidad, etc., Mfg. Co., Cusenier Co., 221 U. S. 580, 55 L. Ed. 863, 220 U. S. 446, 55 L. Ed. 536, 31 S. Ct. 456, ;n S. Ct. 669. affirming decree (1908), Trinidad Asphalt 618-9a. Symbol or form of words.— Mfg. Co. r. Standard Paint Co., 163 E. Standard Paint Co. r. Trinidad, etc., Mfg. 977, 90 C. C. A. 195. 1204 Vol. XL TRADEMARKS, TRADENAMES, ETC. 620-624 the subject of exclusive appropriation as trademarks. ^'-'^ Their nature is such that they can not point to the origin (personal origin) or ownership of the arti- cles of trade to which they may be applied. They point only at the place of pro- duction, not to the producer, and could they be appropriated exclusively, the ap- propriation would result in mischievous monopolies.^'*" H. Abandonment or Termination of Right. — See note 32. The loss of the right of property in trademarks upon the ground of abandonment is not to be viewed as a penalty either for nonuser or for the creation and use of new devices.''^'' I. What Constitutes an Infringement^!. In Grne:ral. — See note 40. II. Tradenames. One may acquire by purchase the right to use a tradename, and the right so acquired will be protected by injunction."*'^'' 620-19a. Geographical names not sub- ject to exclusive appropriation as trade- marks. — Baglin z'. Cuseiiier Co., 221 U. S. 580, 55 L. Ed. 863, 31 S. Ct. 069; Saxlehner z.. Wagner, 216 U. S. 375, 54 L. Ed. 525, 30 S. Ct. 298, affirming- 157 Fed. Rep. 745, 85 C. C. A. 321. Word held a geographical name. — The owner of a trademark or tradename in the words "Hunyadi Janos," for a natural bitter water, is not entitled, in the absence of fraud or unfair competition, to enjoin a manufacturer of an artificial bitter water from advertising and labeling the product, "Artificial Hunyadi," especially since the word "Hunyadi" has become a generic name for mineral waters of a cer- tain type, coming from a more or less ex- tensive district, if not from anywhere in Hungary. Decree (1907), 157 F. 745. 85 C. C. A. 321, affirmed. Saxlehner v. Wag- ner, 216 U. S. 375, 54 L. Ed. 525, 30 S. Ct. 298. Word held not a geographical name. — The word "Chartreuse" was susceptible of exclusive appropriation as a trademark by the Carthusian monks of the Monas- tery of La Grande Chartreuse to desig- nate a liqueur made and sold by them for generations, even though the monks took their name from the region in France in which they settled in the eleventh cen- tury. Baglin v. Cusenier Co., 221 U. S. 580, 55 L. Ed. 863, 31 S. Ct. 669. 620-19b. Why geographical names can not be appropriated as trademarks. — Bag- lin f. Cusenier Co.. 221 U. S. 580. 55 L. Ed. 86:5, 31 S. Ct. 669. 622-33. What essential to constitute abandonment. — "There must be found an intent to abandon, or the property is not lost; and while, of course, as in other cases, intent may be inferred when the facts are shown, yet the facts must be adequate to support the finding." Baglin 7'. Cusenier Co., 221 U. S. 580, 55 L. Ed. 863, 31 S. Ct. 669. "Abandonment in industrial property is an act by which the public domain origi- nally enters or re-enters into the posses- sion of the thing (commercial name, mark, or sign) by the will of the legiti- mate owner. The essential condition to constitute abandonment is, that the one having a right should consent to the dis- possession. Outside of this, there can be no dedication of the right, because there can not be abandonment in the juridical sense of the word." De Maragy's Inter- national Dictionary of Industrial Prop- erty, quoted in Baglin v. Cusenier Co., 221 U. S. 580, 55 L. Ed. 863, 31 S. Ct. 669. 622-34a. Loss by abandonment not a penalty either for nonuser or for creation of new devices. — Baglin v. Cusenier Co., 221 U. S. 580, 55 L. Ed. 863, 31 S. Ct. 669. The adoption by the Carthusian monks after their expulsion from France and re- moval to Spain, of a new designation for the liqueur manufactured by them accord- ing to a secret process is not such an a1)andonment of their old marks as v^^ill preclude relief against infringement in the United States by the French liquidator of their properties, or those claiming under him, where such change was made in or- der to save the French market for their product, and they have continuously as- serted their rights against infringers. Baglin v. Cusenier Co., 221 U. S. 580, 55 L. Ed. 863, 31 S. Ct. 669, reversing decree 164 F. 25, 90 C. C. A. 499. 623-40. Essence of wrong in imitating trademark.— Standard Paint Co. 7'. Trini- dad, etc., Mfg. Co.. 220 U. S. 446, 453. 55 L. Ed. 536, 31 S. Ct. 456. 624-48a. Acquisition by purchase of right to use tradename — Injunction. — Herring-Hall-Marvin Safe Co. r. Hall's Safe Co., 208 U. S. 554, 52 L. Ed. 616, 28 S. Ct. 350, modifying 146 Fed. Rep. 37. 76 C. C. A. 495. The purchaser of all the property and as- sets as a going concern, together with the business, good will, and trade rights of a safe and lock manufacturing company which was to wind up its afi^airs, has the right to use the surname of the founder, where that name had acquired a commer- cial value, and to be protected by an in- 1205 624-626 TRADEMARKS, TRADENAMES', ETC. Vol. XL Presumptions and Burden of Proof. — The burden rests upon defendant when sued for an unfair use of the plaintiff's tradename to justify his use of it.'*^" Conceding the burden of proof to rest upon the manufacturer of a medicine un- der a secret formula, when suing to restrain the use of his tradename by an al- leged infringer, to show that the latter's medicine is not made by his formula, there is at least a prima facie presumption of a difference between the two for- mulas.^^'^ III. Unfair Competition. B. In General. — The manufacturer of particular goods is entitled to protec- tion of the reputation they have acquired against unfair dealing, whether there be a technical trademark or not; but the essence of such a wrong consists in the sale of the goods of one manufacturer or vendor for those of another.^*^^ Use of Trademark and Failure to Distinguish Product. — The French liquidator of the properties of the Carthusian monks of the 2^Ionastery of La Grande Chartreuse, or those claiming under him, may not use the word "Char- treuse," the monks' trademark for a liqueur made and sold by them in connec- tion with the sale in the United States of a liqueur not made by the monks, as the name of, or as descriptive of, the liqueur, or without clearly distinguishing it from the monks' product.^-*'' Using the name of a manufacturer of pills under a secret formula upon pills made by a competitor is not saved from being unfair because it is accom- panied by a statement that the latter makes the pills, even if it be conceded that he is using the other's formula. s^"" junction against a rival safe-making cor- poration organized by the sons of the founder, who were members of the origi- nal corporation, forbidding the use of the surname of such founder, either alone or in combination, in the corporate name, on safes, or in advertisements, unless ac- companied by information that the cor- poration is not the original corporation or its successor, or that the article is not the product of such original company or its successor. Judgment, Hall's Safe Co. V. Herring-Hall-Marvin Safe Co. (1906) 146 F. 37, 76 C. C. A. 495, modified. Her- ring-Hall-Marvin Safe Co. V. Hall's Safe Co., 208 U. S. 554, 52 L. Ed. 616, 28 S. Ct. 350. See also, Donnell v. Herring-Hall- Marvin Safe Co., 208 U. S. 267, 52 L. Ed. 481, 28 S. Ct. 288, reversing 143 Fed. Rep. 231, 74 C. C. A. 361. But such purchaser can not have an in- junction totally restraining the use of the founders surname, thus interfering with the right of the founder's sons to continue in the safe business and use their own name in so doing, after being released from their contract obligation not to en- gage in any competing business east of the Mississippi river for a limited time. Judgment, Hall Safe & Lock Co. v. Her- ring-Hall-Marvin Safe Co. (1906) 143 F. 231, 74 C. C. .\. 361, reversed. Donnell 7-. Herring-Hall-Marvin Safe Co.. 208 U. S. 267, 52 L. Ed. 481, 28 S. Ct. 288. 624-48b. Burden upon defendant to jus- tify use of tradename. — Jacobs v. Beecham, 221 U. S. 362, 55 L. Ed. 729, 31 S. Ct. 555, affirming 159 Fed. Rep. 129, 86 C. C. A. 623. 624-48C. Suit by manufacturer of medi- cine under a secret formula, — Jacobs v. Beecham, 221 U. S. 263, 55 L. Ed. 729, 31 S. Ct. 555, affirming 159 Fed. Rep. 129, 86 C. C. A. 623. 625-50a. Protection against unfair deal- ing — Essence of wrong. — Standard Paint Co. V. Trinidad, etc., Mfg. Co., 220 U. S. 440, 55 L. Ed. 536, 31 S. Ct. 456. A manufacturer of roofing under the name of "Ruberoid" does not make out a case of unfair competition against another manufacturer of roofing using the word "Rubbero" to designate its product, where the only imitation by the latter of the former's goods lies in the similarity of names, since to grant equitable relief in such case would be to give the full effect of a trademark to a word which can not be appropriated as such. Standard Paint Co. V. Trinidad, etc., Mfg. Co., 220 U. S. 446, 55 L. Ed. 536, 31 S. Ct. 456, affirming decree (1908) Trinidad Asphalt Mfg. Co. V. Standard Paint Co., 163 F. 977, 90 C. C. A. 195. 626-54a. Use of trademark and failure to distinguish product. — Baglin v. Cusen- ier Co., 221 U. S. 580, 55 L.^Ed. 863. 31 S. Ct. 669, reversing 164 Fed. Rep. 25, 90 C. C. A. 499. 626-54b. Using name of manufacturer of pills under a secret formula. — Jacobs v. Reerham. 221 U. S. 263, 55 L. Ed. 729, 31 S. Ct. 555. affirming 159 Fed. Rep. 129, 86 C. C. A. 623. 1206 Vol. XI. TREASON 626-627 What Constitutes Such Fraud as Will Preclude Relief against Unfair Competition. — The use of the word "patent" to indicate a medicine made by a secret formula, when the medicine is in fact not patented, is not such fraud as defeats the right of the manufacturer to relief in equity against unfair competi- tion.^-"' Xor will the continued use of circulars and labels which suggest the foreign origin of a product, after its manufacture had been begun in this country, and the use of the name of the original proprietor for some time after the busi- ness had been transferred to his son, defeat the right of a manufacturer to such rehef.^^*^ TRADE RIGHTS.— See note a. TRADING STAMPS.— See ante. Due Process of Law, p. 475. TRAFFIC CONTRACTS.— See ante, Railroads, p. 1046. TRANSCRIPT.— See ante. Appeal and Error, p. 34; Documentary Evi- dence, p. 469. TRANSFER. — As to what constitutes a transfer by a bankrupt with intent to hinder, delay or defraud creditors, see ante. Bankruptcy, p. 168. TRANSFER TAX.— See ante. Succession Taxes, p. 1149. TRANSITORY ACTION.— See ante. Actions, p. 7; post, Venue. TRANSPORT— TRANSPORTATION.— See note 3. TREASON.— See the title Treason, vol. 11, p. 628, and references there given. As to the terms "treason, felony, and breach of the peace," as used in the con- stitutional provision exempting senators and representatives from arrest, see ante. Privilege, p. 1006. 626-54C. Facts that will not preclude re- lief. — Jacobs c'. Beecham. 221 U. S. 263, 55 L. Ed. 729, 31 S. Ct. 555. 626-54d. Jacobs v. Beecham, 221 U. S. 263, 55 Iv. Ed. 729, 31 S. Ct. 555. 626-a. Trade rights as used in a convey- ance. — Although in the purchase of all the property and assets of a going concern, tradenames were not mentioned in the deed, its language was broad enough to include them, where the deed, along with the plant, patterns, stock of safes, ac- counts, papers, etc., conveys all "trade- marks, patent rights, trade rights, good will, and all its property and assets of every name and nature," and agrees that the business is, "taken over in all re- spects as a going concern." If a particu- lar phrase is needed in addition to the general language and the nature of the transaction, trade rights will do well enough. Herring-Hall-Marvin Safe Co. V. Hall's Safe Co.. 208 U. S. 554. 557, 52 L. Ed. 616, 28 S. Ct. 350. See ante, TRADE^IARKS, TRADENAMES AND UNFAIR COMPETITION, p. 120.3. 627-3. The term "transportation" as used in the Interstate Commerce Act, in- cludes all instrumentalities of shipment or carriaije. See ante. INTERSTATE AND FOREIGN COMMERCE, p. 689. The Elkins Act provides that it shall be unlawful for persons, or corporations to offer, or give, or to solicit, accept or re- ceive rebates, concessions or discrimina- tions in respect of the transportation of property in interstate or foreign com- merce l)y common carriers, "whereby any such property shall by any device what- ever be transported at a less rate than that named in tariffs published and filed by such carriers as is required by said act." Counsel contended that the lan- guage of this statute addressed itself to the future, and asked the application of the well-known rule that statutes are pre- sumed to be prospective in their opera- tion, and contended that this act has no reference to property transported in in- terstate commerce at less than the pub- lished rates at any time before the act went into effect. The court said: "Read- ing the latter part of the sentence, 'whereby any such property shall by any device whatever be transported at a less rate, etc.,' the act would seem to have reference to future transportations only. But in an earlier part of the same sen- tence it has been provided that it shall be unlawful to offer, grant, or give, to solicit, accept or receive any debate in respect to property in interstate com- merce transportation 'whereby any such propert}' shall be transported ar a less rate tlian that named in the tariffs,' etc. Taking the sentence altogether it is ap- parent that its purpose is to punish the giving of a rebate, in respect of transpor- tation of property in interstate commerce, which shall have tlie effect to give or re- ceive such transportation at less than the published rates." New York, etc., R. Co. v. United States. 212 U. S. 500, 504, 53 L. Ed. 624. 29 S. Ct. 309. See ante, INTER- STATE AND FOREIGN COMMERCE, p. 689. 1207 636-639 TREATIES. Vol. XI. TREATIES. I. Definition, 1208. II. Treaty-Making Power, 1208. B. Of United States, 1208. 2. In \N\\om \'ested, 1208. • VII. Modification and Abrogation, 1208. B. By Subsequent Statute, 1208. VIII. Construction, 1209. D. Construed Liberally, 1209. K. Aids to Construction, 1209. 2. Surt-ounding Facts and Circumstances, 1209. 5. Statutes, 1209. L. Construction of Particular Words, Phrases and Clauses, 1209. 1. In General, 1209. 3. ]\Iost Favored Nation Clause, 1209. M. Construction of Particular Treaties, 1209. 3. Treaties of Cession, 1209. c. Rights of Individuals, 1209. (2) As to Grantee Nation, 1209. 4. Treaties with Indians, 1209. 6. Extradition Treaties, 1209. IX. Enforcement, 1210. A. Executory Provisions, 1210. X. Operation and Effect, 1210. A. As Law, 1210. C. Of Treaties with Indians, 1210. CROSS REFERENCES. See the title Treaties, vol. 11, p. 635, and references there given. In addition, see ante, Aliens, p. 18; Executors and Administrators, p. 564; Extradition, p. 571; Indians, p. 641; Statutes, p. 1122. As to right of aliens to sue in the absence of treaty, see ante, Auens, p. 18. As to citizenship of a corporation created by Spain and Portugal under the treaty of Paris, see ante, Corporations, p. 381. As to the right to practice law in the Philippine Islands in the treaty of Paris, see ante. Attorney and Client, p. 158. I. Definition. See note 1. II. Treaty- Making Power. B. Of United States— 2. In Whom Vested. — See note 9. VII. Modification and Abrogation. B. By Subsequent Statute. — See note 27. 636-L Definition.— lAltman & Co. v. 894, 32 S Ct 593 Fo"ij' r?^^-o'^'' ^""^ ^- ^"^^ ^•^■^' ''^ ^- ^^- ^■^^' 639-27. Subsequent statute.-Sanchez v. "'"'eo;^ T^" u .J M o r^ United States, 216 U. S. 167, 54 L. Ed. 432, 637-9. In whom vested.— Ahman & Co. qq S Ct ■^ri V. United States, 224 U. S. 583, 56 L. Ed. 1208 Vol. XL TRBATIES. 641-644 VIII. Construction. D. Construed Liberally. — See note 44. K. Aids to Construction — 2. Surrounding Facts and Circumstances. — See note 55. 5. Statutes. — See note 58. L. Construction of Particular Words, Phrases and Clauses — 1. In General. — The words "such laws as are applicable to other foreigners'" in the treaty of Paris refer not to the Spanish law but to the laws enacted by the new- sovereignty.*'^'' The words "protection and security for their persons and prop- erty" in the treaty between the United States and Italy can not be construed as entitling a citizen of Italy to the right of maintaining an action for death by wrongful act of a kinsman killed in this country .'^^^ 3. Most Favored Nation Clause. — The right of citizens of Prussia under the treaty of Alay 1, 1828, to attend to their affairs in the United States, and for that purpose to enjoy the same security and protection as natives in the country wherein they reside, is not violated by the refusal of a state court, on grounds of public policy, to apply the doctrine of comity so as to subject by attachment, to the payment of an indebtedness due a German corporation from a German sub- ject, a fund within the state to which one of its own citizens asserts a claim, where the effect of judgment in favor of the corporation would be to remove the fund to a foreign country, there to be administered in favor of the foreign creditors.*'^^ M. Construction of Particular Treaties — 3. Treaties of Cession — c. Rights of huiividnals — (2) As to Grantee Xation. — The provisions of the treaty with Spain, i)rotecting private rights of property, have no reference to public or quasi public stations, the functions and duties of which it is the province of gov- ernment to regulate or control for the welfare of the people, even where the in- cumbents of such stations are permitted, while in the discharge of their duties, to earn and receive emoluments or fees for services rendered by them.^^^ The right to practice law was not embraced in the provision of the treaty of peace with Spain, that the cession of sovereignty can not, in any respect, impair the property rights which, by law, belong to the peaceful possession of property of all kinds.* ^'' 4. Treaties with Indians. — See note 82. 6. Extradition Treaties. — See ante. Extradition, p. 571. 641-44. Construed liberally. — Rocca v. office of solicitor oi tlie courts of first Thompson, 22o U. S. :J17, o6 L. Ed. 4.53, instance of the capital of Porto Rico, law- 32 S. Ct. 207. fully purchased in perpetuity, prior to 642-55. Surrounding facts, etc.— Rocca the occupancy of Porto Rico b)' the mili- V. Thompson, 223 U. S. 317, 56 L. Ed. 453, tary authorities of the United States, and 32 S. Ct. 207. the cession of that island to the United 642-58. Statutes. — See ante, INDIANS, .States. Judgment. Sanches i\ United p. 641. States (1907), 42 Ct. CI. 458, affirmed. 642-61a. Particular words and phrases. Sanchez v. United States, 216 U. S. 167, .54 —Bosque :•. United States, 209 U. S. 91. L. Ed. 432, 30 S. Ct. 361. 52 L. Ed. 698, 29 S. Ct. 501. 644-81b. Right to practice law.— Laws 642-61b. Protection and security. — Ma- enacted by the new sovereignty, and not iorano v. Baltimore, etc., R. Co., 213 U. the Spanish laws, were meant by the pro- S. 268, 53 L. Ed. 792. 29 S. Ct. 424. See vision of the treaty of peace with Spain ante, DEATH BY WRONGFUL ACT. of December 10, 1898 (30 Stat. 17.59, art. p. 456. 9), that Spanish subjects in the Philippine 643-64a. Most favored nation clause. — Islands shall liave the right to carry on Disconto Gesellschaft v. Uml)reit, 208 U. tlieir industry, commerce, and protes- S. 570, 52 L. Ed. 625. 28 S. Ct. 337. sions, l)eing subject in respect thereof to 644-81a. Treaty of cession.— The pro- "such laws as are applicable to other for- tection accorded to the prooerty or rights eigners." Bosque v. United^ States. 209 of private individuals l)y the treaty of U. S. 91, 52 L. Ed. 698. 2S h. Ct. 501. peace with Spain (Act Dec. 10, 1898, art. 644-82. Treaties with Indians.— See ante, 8 f30 Stat. 1758 1) does not extend to the IXDI.XNS, p. 641. 1209 646-647 TREATY FUND. Vol. XL IX. Enforcement. A. Executory Provisions. — See note 89. X. Operation and Effect. A. As Law. — See note 93. C. Of Treaties with Indians. — See ante, Indians, p. 641. A commercial agreement between the United States and another nation, made under authority of the Tariff Act of 1897, while not a treaty possessing a dignity of one requiring ratification by the senate, is a treaty under the Circuit Court of Appeals act pro- viding for a direct appeal to the supreme court.'^'^^ TREATY FUND.— See note a. 646-89. Enforcement of treaties. — A treaty by the express words of the con- stitutioji, is the supreme law of the land, binding alike national and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights. Maiorano v. Baltimore, etc., R. Co., 213 U. S. 268, 273, 53 L. Ed. 792, 29 S. Ct. 424; United States v. Raus- cher, 119 U. S. 407. 418. 30 L. Ed. 425. 7 S. Ct. 234. 646-93. Operation and effect as law. — Altman & Co. v. United States, 224 U. S. 583, 56 L. Ed. 894, 32 S. Ct. 593; Sanchez V. United States, 216 U. S. 167, 54 L. Ed. 432. 30 S. Ct. 361. 647-97a. Effect of Indian treaty.— The commercial reciprocal agreement with France, negotiated under the authority contained in the Tariff Act of 1897 (30 Stat, at L. 151, chap. 11, U. S. Comp. Stat. 1901, p. 1626), § 3, to make reciprocal agreements with reference to certain specified articles, is a treaty within the meaning of the Act of March 3. 1891. § 5, giving a direct appeal from a federal cir- cuit court to the supreme court in cases where the validity or construction of any treaty made under the authority of the United States is drawn in question. Alt- man & Co. V. United States, 224 U. S. 583, .56 L. Ed. 894, 32 S. Ct. 593. 647-a. Treaty fund. — The gratuitous appropriation of public moneys for the purpose of Indian education has always been made under the heading "Support of Schools,"' whilst the appropriation of the Treaty Fund has always been under the heading "Fulfilling Treaty Stipula- tions and Support of Indian Tribes," and that from the "Trust Fund" is not in the Indian Appropriation Acts at all. One class of appropriations relates to public money belonging to the govern- ment; the other to moneys which belong to the Indians and which is administered for them by the government. In con- sideration of cessions of land by the Sioux Indians in 1868 and 1877, the United States agreed to furnish teachers and all necessarj^ aid to assist the In- dians in the work of civilization and fur- nish them schools and instruction in me- chanical and agricultural arts. In 1889 congress extended the obligation of the treaty of 1877 for twenty years, subject to such modifications as congress should deem most effective, to secure the In- dians equivalent benefits of such educa- tion. Thereafter, in every annual Indian Appropriation Act, there v/as an appro- priation to carry out the terms of this treaty, under the heading "Fulfilling Treat}' Stipulations and Support of In- dian Tribes.'' These appropriations rested on different grounds from the gratuitous appropriations of public moneys under the heading "Support of Schools." The two subjects were separately treated in each act, and, naturally, as they are es- sentially different in character. One is the gratuitous appropriation of public moneys for the purpose of Indian educa- tion, but the Treaty Fund is not public money in this sense. It is the Indians' money, or at least is. dealt with by the government as if it belonged to them, as morally it does. It differs from the "Trust Fund" in this: The "Trust Fund" has been set aside for the Indians and the income expended for their bene- fit, which expenditure required no annual appropriation. The whole amount due the Indians for certain land cessions v/as appropriated in one lump sum of the Act of 1889. 25 Stat. 888. chap. 405. This "Trust Fimd" is held for the Indians and not distributed per capita, being held as property in common. The monej"- is dis- tributed in accordance with the discre- tion of the secretary of the interior, but really belongs to the Indians. The Treaty Fund is moneys belonging really to the Indians; the price of land ceded by the Indians to the government. The only difference is that in the Treaty Fund the debt to the Indians created and secured by the treaty is paid by annual appropriations. They are not gratuitous appropriations of public monej'S, but the pavment of a treaty debt in installments. Quick Bear v. Leupp, 210 U. S. 50, 77, 52 L. Ed. 954, 2S S. Ct. 690. See ante, IN- DIANS, p. 641; PUBLIC LANDS, p. 1012; TREATIES, p. 1208. 1210 Vol. XI. TRIBAL PROPERTY. 648-667 TREES AND TIMBER. CROSS REFERENCES. See the title Trees and Timber, vol. 11, p. 648, and references there given. As to double damages and fine or imprisonment for cutting timber on state lands, see ante, Autreeois, Acquit and Convict, p. 161 ; Due Process *of Law, p. 475 ; Police Power, p. 955. As to sales of timber by Indians, see ante, In- dians, p. 641. As to the right to cut timber from the public domain, see ante, Mines and Minerals, p. 865 ; Public Lands, p. 1012. Injunction to Protect Timber. — Equity may intervene by injunction to prevent the wrongful boxing and cutting of timber valuable for turpentine purposes, since the remedy at law in damages is of doubtful adequacy.^* TRESPASS.— See the title Trespass, vol. 11, p. 649, and references there given. TRESPASSERS.— See ante. Carriers, p. 216; Negligence, p. 920. TRESPASS TO TRY TITLE.— See the title Trespass to Try Title, vol. 11, p. 664, and references there given. TRIAL CROSS REFERENCES. See the title Trial, vol. 11, p. 667, and references there given. In addition, see ante. Appeal and Error, p. 34. As to trial in particular actions or proceedings, see the particular titles. As to trial in criminal proceedings, see ante, Criminal Law, p. 434, and the spe- cific criminal titles. As to trial by jury, see ante, Jury, p. 813. As to pleading, see ante. Pleading, p. 953, and the cross references there given. As to in- structions to the jury, see ante. Instructions, p. 672, and the cross references there given. As to verdicts, see post, Verdict, and the cross references there given. As to judgments and decrees, see ante, Judgments and Decrees, p. 807, and the cross references there given. Trial Defined. — "Trial is a common-law term, and is commonly used to denote that step in an action by which issues or questions of fact are decided." But the word has often a broader significance, as referring to. that final exami- nation and decision of matter of law as well as fact, for which every antecedent step is a preparation, which is commonly denominated "the trial. ""^^ TRIAL BY JURY.— See ante, Jury, p. 813. TRIAL DE NOVO.— See ante, Appeal and Error, p. 34. TRIBAL CITIZENSHIP.— See ante, Indians, p. 641. TRIBAL GOVERNMENT.— See ante, Indians, p. 641. TRIBAL PROPERTY.— See ante, Indians, p. 641. 648-5a. Injunction to protect timber.— JUNCTIONS, p. G")-. Graves v. Ashl)urn. :21.5 U. S. 331, 54 L. 667-3a. Trial defined.— Carpenter v. Ed 217. 30 S. Ct-. 108, reversing- 149 Fed. Winn, 221 U. S. 533, 538, 55 L. Ed. 842, 31 Rep. 968, 79 C. C. A. 478. See ante, IN- S. Ct. 683. 1211 673 TRUSTS AND TRUSTEES. Vol. XL TROVER AND CONVERSION. V. Pleading and Practice, 1212. F. Damages, 1212. 1. Measure and Elements, 1212. a. In General, 1212. CROSS REFERENCES. See the title Trover and Conversion, vol. 11, p. 669, and references there given. In addition, see ante. Banks and Banking, p. 184. V. Pleading and Practice. F. Damages — 1. Measure and Elements — a. In General. — See note 35. TRUST DEEDS. — See ante. Mortgages and Deeds of Trust, p. 891. TRUSTEE.— See post, Trusts and Trustees. TRUSTS AND TRUSTEES. II. Creation, Classification and Validity, 1213. C. Validity, 1213. 6. _ Incapacity of Trustee, 1213. III. Trust Estate, 1213. E. Duration and Termination, 1213. 5. Rule against Perpetuities, 1213. J. Sale, Exchange or Mortgage of Trust Property, 1213. 2. Persons Who May Purchase, 1213. a. Purchase by Trustee, 1213. (1) Purchase at Trustee's Own Sale, 1213. K. Following Trust Property, 1213. 2. In Hands of Subsequent Purchaser, 1213. L. Distribution, 1214. 1. Accumulation and Income, 1214. IV. Trustee, 1214. H. Substitution, Removal, Resignation and Discharge of Trustees, 1214, 1. Power to Appoint New Trustee upon Failure of Suitable Trustees. 1214. a. Power of Equity, 1214. J. Administration of Trust, 1214. 5. Dealings with and Use of Trust Funds or Estate, 1214. b. Use for Benefit of Trustee, 1214. (4) Profits by Agent in Execution of His Agency, 1214. VI. Remedies, 1214. B. Suits against Trustee or Trust Property, 1214. 1. Suits for Establishment, Preservation and Enforcement of Trust. 1214. e. Bill or Complaint, 1214. 673-35. Interest is expressly made by 311, 17 Okl. 344, affirmed. Drumm-Flato- St. Okl. 1893, § 2640, a part of the detri- Comm. Co. 7'. Edmission, 208 U. S. 534. ment caused by the conversion of per- 52 L. Ed. 606, 28 S. Ct. 367. sonal property. Judgment (1906) 87 P. 1212 Vol. XL TRUSTS AND TRUSTEES. 710-718 CROSS REFERENCES. See the title Trusts and Trustees, vol. 11, p. 676, and references there given. In addition, see ante. Municipal, Corporations, p. 895 ; Principal and Agent, p. 1001. As to liability of trust fund in hands of municipality where contract not made with special reference to such fund, see ante. Municipal Corporations, p. 805. II. Creation, Classification and Validity. C. Validity — 6. Incapacity of Trustee. — See post, "Power of Equity," IV, H, 1, a. III. Trust Estate. E. Duration and Termination — 5. Rule against Perpetuities. — See ante, Perpetuities, p. 948. J. Sale, Exchange or Mortgage of Trust Property — 2. Persons Who May Purchase — a. Purchase by Trustee — (1) Purchase at Trustee's Own Sale.- — See note 1. K. Following Trust Property — 2. In Hands of Subsequent Purchaser. — See note -14. 710-1. .Michoud v. Girod, 4 How. 502, 505, 11 L. Ed. 107G, is a leading case ap- plying the general rule, which forbids one to buy an estate, directly or indirectly, when he is acting for the seller. United States V. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. In Michoud 7'. Girod, 4 How. 502, 555, 11 L. Ed. 1076, referring to the general rule, which forbids one to buy in an es- tate, directly or indirectly, when he is acting for the seller, this court said: "The general rule stands upon our great moral obligation to refrain from placing ourselves in relations which ordinarily ex- cite a conrtict between self-interest and integrity. It restrains all agents, public and private; but the value of the prohibi- tion is most felt, and its application is more frequent, in the private relations in which the vendor and purchaser may stand towards each other. The disabil- ity to purchase is a consequence of that relation between them which imposes on the one a duty to protect the interest of the other, from the faithful discharge of which duty his own personal interest may withdraw him. In this conflict of inter- est, the law wisely interposes. It acts not on the possibility that, in soine cases, the sense of that duty may prevail over the motives of self-interest, but it provides against the probability in many cases, and' the danger in all cases, that the dictates ■of self-interest will exercise a predomi- nant influence, and supersedes that of •duty. It therefore prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from purchasing on account of another that which he sells on his own account. In effect, he is nnl allowed to unite the two opposite char- acters of buyer and seller, because his in- terests, when he is the seller or buyer on his own account, are directly conflicting with those of the person on whose ac- count he buys or sells." United States v. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. "In Robertson v. Chapman, 152 U. S. 673, 681, 38 L. Ed. 592, 14 S. Ct. 741, this court, in dealing with the matter of a sale by an agent to himself, effected under cover of another, said: 'If an agent to sell effects a sale to himself, under the cover of the name of another person, he becomes, in respect to the property, a trustee for the principal; and, at the elec- tion of the latter, seasonably made, will be compelled to surrender it, or, if he has disposed of it to a bona fide purchaser, to account not only for its real value, but for any profit realized by him on such resale. And this will lie done upon the demand of the principal, although it may not appear that the property, at the time the agent fraudulently acquired it, was worth more than he paid for it. The law will not, in such case, impose upon the principal the burden of proving that he was, in fact, injured, and will only in- quire whether the agent has been unfaith- ful in the discharge of his duty. While his agency continues, he must act in the matter of such agency solely with refer- ence to the interests of his principal. The law will not permit him, without the knowledge or assent of his principal, to occupy a position in which he will be tempted not to do the best he may for the principal.' " United States v. Carter, 217 U. S. 286, 54 E. Ed. 769, 30 S. Ct. 515. 718-44. Persons who, with full knowl- edge of the facts, have received the securi- ties into which have gone the illicit gains ]2i:; 718-727 TRUSTS AND TRUSTEES. Vol. XL L. Distribution — 1. Accumulations and Income. — The surplus income after paying annuities must accumulate as part of the trust estate until the time for distribution arrives, when it must be distributed to those entitled to. the main fund, where the trust provides that the trustee is to devote sufficient of the income toward paying the annuities, and, on the termination of the trust, is to distribute the trust fund to those entitled to the annuities.^"*^ IV. Trustee. H. Substitution, Removal, Resignation and Discharge of Trustees — 1. Power to Appoint New Trustee upon Failure of Suitable Trustees — a. Pozver of Equity. — See note 58. J. Administration of Trust — 5. Dealings with and Use of Trust Funds or Estate — b. Use for Benefit of Trustee — (4) Profits by Agent in Execu- tion of His Agency. — Any profit made by an agent in the execution of his agency must be accounted for to the principal who may claim it as a debt for money received to his use. A gratuity given to an agent for the purpose of influencing the execution of his agency vitiates a contract subsequently made by him, as being presumptively made under that influence, and a gratuity to an agent after the execution of his agency must be accounted for to the princi- p^] 92a This principle is most often applied in cases where one holding the relation of a trustee buys the trust property, though at public sale.^-"^ VI. Remedies. B. Suits against Trustee or Trust Property — 1. Suits for Establish- ment, Preservation and Enforcement of Trust— e. Bill or Complaint. — Personal Judgment under Prayer of General Relief. — The United States. seeking to follow the illicit gains of its agent into the property or securities into of the engineer in charge of a public im- provement, must account to the United States for the securities traced to their possession. Decree (1909), 172 F. 1, 96 C. C. A. 587, affirmed. United States v. Carter, 217 U. S. 286, 54 L. Ed. 769, 30 S. Ct. 515. 718-44a. Fitchie v. Brown, 211 U. S. 321, 53 L. Ed. 202. 29 S. Ct. 106. 720-58. The validity of a trust is not affected by the incapacity of the trustee, since, if he can not act, the court will ap- point a new trustee to carry out the provisions of the trust. Fitchie v. Brown, 211 U. S. 321. 53 L. Ed. 202, 2i) S. Ct. lOG. 727-92a. United States v. Carter, 217 U. S. 286, 54 L. Ed. 769. 30 S. Ct. 515. "The doctrine is well established and has hcen applied in many relations of agency or trust. The disability results not from the subject matter, but from the fiduciary character of the one against whom it is applied. It is founded on rea- son and the nature of the relation, and is of paramount importance. 'It is of no moment,' said Lord Thurlow, in The York Bldgs. Co. v. Mackenzie, 3 Paton, 378, 'what the particular name or descrip- tion, whether of character or office, situa- tion or position, is, on which the disability attaches.' Thus, in Aberdeen R. Co. r. Blaikie Bros.. 1 Macq. H I, Cas. 461, 472. it was applied to a contract of a director dealing in behalf of his company." United States v. Carter, 217 U. S. 2S6. 54 L. Ed. 769, 30 S. Ct. 515. Necessity for proof of fraud. — "It is not enough for one occupying a confi- dential relation to another, who is shown, to have secretly received a benefit from the opposite party, to say, 'You can not show any fraud, or you can not show that you have sustained any loss by my conduct.' Such an agent has the power to conceal his fraud and hide the injury done his principal. It would be a dan- gerous precedent to lay down as law that unless some affirmative fraud or loss can be shown, the agent may hold on to any secret benefit he maj^ be able to make out of his agency. The larger interests of public justice will not tolerate, under any circumstances, that a public official shall retain any profit or advantage which he may realize through the ac- quirement of an interest in conflict with his fidelitj^ as an agent. If he takes any .sift, gratuity, or benefit in violation of his duty, or acquires any interest adverse to his principal, without a full disclosure, it is a betrayal of his trust and a breach of confidence, and he must account to his principal for all he has received." United Statts f. Carter, 217 U. S. 286. 54 L. Ed. 769. 30 S. Ct. 515. 727-92b. United States v. Carter, 217 U. S. 286. 54 L. Ed. 769, 30 S. Ct. 515. See ante, "Purchase by Trustee," III. I. 2, a. 1214 Vol. XL UNDER RESTRAINT OF TRADE. 739-745 which they have gone, is entitled, under a prayer for "other, further, and general relief," to a judgment, as for money had and received for its use, for any dif- ference between the cost of the specific property recovered and the gains which it is unable to trace.^^^ TURNPIKES AND TOLLROADS. CROSS REFERENCES. See the title Turnpikes and Tollroads, vol. 11, p. 741, and references there given. In addition, see ante. Appeal and Error, p. 34. As to suspending collection of tolls until roads shall be put in proper repair, see ante. Due Process of Lav^, p. 475. Special Charter Conferring Right to Take Tolls Construed. — See note 2. TWICE IN JEOPARDY.— See ante. Autrefois, Acouit and Convict, p. 161. ULTRA VIRES. — See ante. Banks and Banking, p. 184; Corporations, p. 381 ; Quo \\'arranto, p. 1044. UNAVOIDABLE ACCIDENT.— See ante. Negligence, p. 920. UNDERWRITERS.— See ante, Insurance, p. 674. UNDUE INFLUENCE. CROSS REFERENCES. See the title Undue Influence, vol. 11, p. 743, and references there given. As to assumption by the supreme court of the United States as to what amounts to undue influence within the meaning of a state statute permitting a contract to be set aside for such cause see ante. Courts, p. 398. As to the eflFect in equity of charge of undue influence, see ante. Equity, p. 550. As to setting aside conveyances on the ground of undue influence, see ante. Rescis- sion, Cancellation and Reformation, p. 1069. As to the efl^ect upon wills of undue influence exercised upon the testator, see post. Wills. Necessity of Pleading.— That undue influence was not expressly pleaded in defense of a contract does not preclude instructions defining it, if facts are pleaded and found which amount to it.^^^ UNDUE RESTRAINT OF TRADE.— See ante, Monopolies and Corporate Trusts, p. 874. 739-55a. United States v. Carter, 217 of the public after twenty years, or at U. S. 286. 54 L. Ed. 769, 30 S. Ct. ol.5. any time thereafter: there bein.s: no 741-2. Special charter conferring right reference in the charter to the general to take tolls construed. — The right of a act. Decree, Stale v. Scott County Ma- toll road company to take any tolls what- cadamized Road Co. (1907), 105 S. VV. ever, and not merely the right given by 752, 207 Mo. 54, 13 A. & E. Ann. Cas. 65.5, its special charter to take higher tolls affirmed. Scott County, etc., Road Co. than those allowed to toll road companies v. Hines, 215 U. S. 330, 54 L. Ed. 221. 30 organized under a general act then in S. Ct. 110. force, expired with the lapse of fifty years 745-lla. Instructions defining undue in- from the date of such special charter, fluence proper, though it is not expressly which provided that the privileges therein pleaded. — Snyder 7'. Rosenluuim, 215 U. granted should continue for fifty years. S. 26], 54 L. Ed. 186, 30 S. Ct. ^S. subject to a right of purchase on behalf 1215 745 ^ UNITED STATES. Vol. XI. UNFAIR— UNFAIRLY.— See note 1. UNFAIR COMPETITION. — See ante, Trademarks, Tradenames and Un- fair Competition, p. 1203. UNIFORM TAXATION.— See ante, Taxation, p. 1156. UNION.— See note 2a. UNITED STATES. III. Powers, Prerogatives and Liabilities, 1217. B. Prerogatives and Immunities, 1217. 2. Priority as to Payment, 1217. 3. Respecting Statutes in Which United States Are Not Named, 1217. D. Cession of Jurisdiction from States over Forts, etc., 1217. IV. Officers and Agents, 1217. VII. Contracts, 1217. B. Form, Requisites and A'alidity, 1217. 2. Form Prescribed by Statute, 1217. c. Ratification of Defective Instrument, 1217. 3. Power of Officer to Make, 1218. 4. Mutual Assent— Privity of Contract, 1218. 5. ImpHed Contracts, 1218. I. Particular Contracts, 1218. 7. Sales, 1218. b. Sales to the United States, 1218. (1) Construction, 1218. (2) Supplies for Departments, 1218. (f) Delivery, 1218. 9. Transportation Contracts, 1218. 13. Contracts for Railway Mail Service, 1219. VIII. Claims, 1219. C. Claims against the United States, 1219. 2. Existence and Legality, 1219. a. Claims Arising Out of Contract or under Statutes, 1219. (9) Sums in Excess of That Permitted by Congress for Purposes of Any Contract, 1219. c. Recognition by Congress, 1219. (1) Empowering Court to Determine Validity or Invalid- ity, 1219. d. Recognition by Executive Officer, 1220. 3. Auditing and Accounting, 1220. d. Claims for Unliquidated Damages, 1220. * 5. Assignment, 1220. a. Voluntary /\ssignment, 1220. (2) Under Federal Statutes, 1220. (b) Construction and Operation, 1220. 745-1. Unfair in list puVlished for pur- power, dignity and authority, each com- P°p5, °^ boycott.— See post, VERBAL petent to exert that residuum of sov- •^*- ' ^- ereignty not delegated to the United 745-2a. Union of States.— '"This Union" States by the constitution itself. Coyle contained in § 3, art. IV, of the constitu- v. Smith, 221 U. S. 559, 567, 55 L. Ed. tion, providing that '"new states may be 853, 31 S. Ct. 688. See ante, STATES, admitted l)y congress into this Union," p. 1117. was and is a Union of states, equal in 1216 Vol. XL UNITED STATES. 753-754 b. Transfer of Title by Operation of Law, 1221. c. Suit by Assignee, 1221. 6y2. Release, 1222. 12. Attorney's Fees, 1222. b. Attorney's Contingent Fee Agreement, 1222. X. Suits against the United States, 1222. A. Immunity from Suit without Consent of Congress, 1222. 6. Tort Actions against Officers and Agents of United States, 1222. a. In General, 1222. 6y2. Enjoining Threatened Illegal Actions of United States Offi- cers, 1222. a. In General. 1222. b. Enjoining Institution of Criminal Proceedings, 1222. J. Suits by State, 1223. XII. Executive Departments, 1223. CROSS REFERENCES. See the title United States, vol. 11, p. 747, and references there given. As to conspiracy to commit crimes against the laws of the United States, see ante. Conspiracy, p. 256. As to mandamus to executive officers of United States, see ante. Mandamus, p. 838. As to suits to cancel conveyance of In- dian allotment, see ante, Indians, p. 641. As to stock grazing on forest reser- vations, see ante. Animals, p. 27. III. Powers, Prerogatives and Liabilities. B. Prerogatives and Immunities — 2. Priority as to Payment. — Prior- ity as Creditor. ^ — See note 4. Priority of Payment Out of Estate of Insolvent Debtor. — See ante, Bankruptcy, p. 168. 3. Respecting Statuti:s in Which United States Are Not Named. — See note 7. D. Cession of Jurisdiction from States over Ports, etc. — See ante, Constitutional Law, p. 264. IV. Officers and Agents. See post, "Implied Contracts," VII, B, 5 ; "Suits against the United States," X. See ante. Public Officers, p. 1035. VII. Contracts. B. Form, Requisites and Validity — 2. Form Prescribed by Statute — c. Ratification of Defective Instrument. — The invalidity of a public contract because of noncompliance with the requirement of Rev. St. U. S. 3744 (U. S. 753-4. Lien for partial payments on eral language of a statute, and is not vessels building for government. — See bound l)y the provision of an insolvency post. WORKING CONTRACTS. law, unless specifically mentioned therein 754-7. Bankruptcy act. — The United is sustained by Dollar Sav. Bank v. United States as a sovereign is not bound by the States, 19 Wall. 227, 2,39, 22 L. Ed. 80; general language of a statute, and is United States v. Herron, 20 Wall. 2.51, therefore not bound by the provisions of 260, 22 L. Ed. 275; Lewis v. United a bankruptcy law unless specifically men- States, 92 U. S. 618, 23 L. Ed. 513. The tioned therein. Guarantee Title, elc, Co. first case cited gives an illustration of V. Title Guaranty, etc., Co., 224 U. S. 152, it not connected with bankruptcy _ laws. 56 L. Ed. 706. 32 S. Ct. 457. See ante, In the other two cases it was applied to BANKRUPTCY, p. 168. •'^uch laws. Guarantee Title, etc., Co. v. The proposition that the United States, Title Guaranty, etc., Co., 224 U. S. 152, as a sovereign, is not bound by the gen- 5G L. Ed. 70G, 32 S. Ct. 457. 12 U S Enc— 77 1217 760-770 UNITED STATES. Vol. XL Comp. St. 1901, p. 2510), that such contracts be reduced to writing and be subscribed by the contracting parties, is immaterial after the contract has been performed.^^^ 3. Power of Officer to Make. — See note 35. 4. MuTuAE Assent — Privity of Contract. — See note 36. 5. Implied Contracts. — An officer of the United States can not, by his acts, create a state of things from which, in the absence of legislation on the subject, an implied contract could arise under which the government would be liable, by reason of its constitutional duty, to make just compensation for the use 'of private property taken for public purposes. In such a case the remedv is with congress, and not with the courts.^^^ I. Particular Contracts— 7. Sales— b. Sales to the United States— {\) Construction.— United States Deemed Purchaser.— Where both parties re- garded the contract as one made in the name of and for the account of the United States, the United States must be deemed the purchaser and not some other government by which the supplies were to be used.^^'' (2) Supplies for Departments — (f) Delivery. — See note 67. 9. Transportation Contracts. — The practical construction put upon the contract for transportation of Spanish military and civil officers in the Philip- pines to Spain, by the course of conduct of the United States, should be up- held where such construction seems from the entire text of the agreement to have been that intended by the parties.'^ ^^ 760-32a. Judgment, R. P. Andrews & Co. V. United States (1905), 41 Ct. CI. 48, affirmed. United States t. Andrews ik Co., 207 U. S. 229, 52 L. Ed. 185, 28 S. Ct. 100, following St. Louis, etc., Grain Co. V. United States, 191 U. S. 159, 48 L. Ed. 130, 24 S. Ct. 47. 760-35. Hooe v. United States, 218 U. S. 322, 54 L. Ed. 1055, 31 S. Ct. 85. See post, "Implied Contracts," VII, B, 5. 760-36. Meeting of minds. — Lord v. United States, 217 U. S. 340, rA L. Ed. 790, 30 S. Ct. 568. 761-38a. Hooe v. United States, 218 U. S. 322, 54 L. Ed. 1055, 31 S. Ct. 85. See post, "Sums in Excess of That Permitted •by Congress for Purposes of Any Con- tract," VIII, C, 2, a, (9). "The taking of private property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act of congress, is not the act of the sjovernment." Hooe v. United States, 218 U. S. 322, 54 L. Ed. 1055. 31 S. Ct. 85. 765-58a. The United States, and not the government of the Philippine Islands, must be deemed the purchaser of paper to be used by the public printing office in those islands, where the division of insular affairs, under an order of the secretary of war, conducted the negotia- tions for such purchase with no intima- tion that it was acting as the agent for the government of the Philippine Islands, other than can be inferred from the statement of the purpose for which the paper was intended, the contrary infer- ence being supported by a reference to the "Philippine funds" as the source of payment, and by the subsequent corre- spondence and dealings, which showed that both parties regarded the contract as one made in the name of, and for the account of, the United States. Judgment, R. P. Andrews & Co. v. United States (1905), 41 Ct. CI. 48, affirmed. United States V. Andrews & Co., 207 U. S. 229, 52 L. Ed. 185, 28 S. Ct. 100. 766-67. Delivery to carrier. — Delivery of paper purchased by the United States for the public printing office in the Philippine Islands to the carrier desig- nated 'by the government, coupled with the acceptance by the government of the bills of lading made to the consignee or his order, constitutes a delivery to the United States, relieving the seller of risk of injury during shipment, although the words "f. o. b. Manila" were used in the proposal by which the negotiation was commenced, where the context and sub- sequent correspondence showed that these words were used as implying that, inas- much as the freight to Manila was to be included in the purchase price, it was to be primarily defrayed by the seller. United States v. Andrews & Co., 207 U. S. 229, 52 L. Ed. 185, 28 S. Ct. 100. 770-78a. Ceballos & Co. ?'. United States, 214 U. S. 47, 53 L. Ed. 904, 29 S. Ct. 583. The United States should be charged the cabin rate, with the usual reduction for children under ten years, for trans- portation to Spain as cabin passengers of the wives and children of Spanish mili- tary and civil officers in the Philippine Islands, under a contract for the trans- portation of such officers at that rate, and 1218 Vol. XL UNITED STATES. 772-773 13. Contracts for Raii^way Mail Si;rvick. — See ante, Postal Law^ n 996. ^' VIII. Claims. C. Claims against the United States— 2. Existence and Legality— a. Claims Arising Out of Contract or under Statutes — (9) Sums in Excess of That Permitted by Congress for Purposes of Any Contract. — If an officer, upon his own responsibility, and without the authority of congress, assumes to bind the government, by express or implied contract, to pay a sum in ex- cess of that limited by congress for the purposes of such a contract, the con- tract is a nullity, so far as the government is concerned, and no legal obligation arises upon its part to meet its provisions. If the circumstances justify such a course, congress, in its discretion, can intervene and do justice to the owner of private property used by officers of the government in good faith, for public purposes, although without direct legislative authority. ^^^ A claim in excess of the sum appropriated by congress for that purpose can not be allowed.'^^b c. Recognition by Congress — (1) Empozvering Court to Determine Validitx or Invalidity. — See note 93. of sucli other persons as might be desig- nated by the secretary of war at the steerage rate. Judgment (1907), J. M. Ceballos z: United States, 42 Ct. CI. 318. reversed. Ceballos & Co. v. United States, 21-4 U. S. 47, 53 L. Ed. 904, 29 S. Ct. 583. "Other persons." — All noncombatants except the wives and children of military and civil officers were embraced in the words "other persons" in a contract with the United States for the transportation to Spain at the cabin rate of Spanish mili- tary and civil officers in the Philippine Islands, and at the steerage rate of such other persons as might be designated by the secretary of war. Ceballos & Co. z'. United States, 214 U. S. 47, 53 L. Ed. 904, 29 S. Ct. 583. "In effect, therefore, by a course of conduct, the United States had associated the wives and the children of the officers and enlisted men with such officers and men for the purpose of the transporta- tion to be furnished and the treatment to be accorded them on the homeward voyage." Ceballos & Co. v. United States, 214 U. S. 47, 53 L. Ed. 904, 29 S Ct. 5S3. 772-92a. Hooe v. United States, 218 U. S. 322. 54 L. Ed. 1055, 31 S. Ct. 85. 772-92b. Claims for rent in excess of appropriation. — The owners of a build- ing who have received the entire sums which congress has from year to year appropriated as full compensation for the rent of quarters secured for the civil service commission by the secretary of the interior, in the discharge of his duty under the Act of Jan. 16, 1883 (22 Stat. at L. 403, 405, chap. 27, U. S. Comp. Stat. 1901, p. 1220), can not maintain suit against the government under the Acf of March 3. 1887 (24 Stat, at L. 505, chap. 359, U. S. Comp. Stat. 1901, p. 752), to recover the diflference between such sums and the fair rental value of the building, including the basement, which was used without consent, on the theory that the claim, is founded either upon a contract, express or implied, or upon the constitu- tional obligation to make just compensa- tion for private property taken for pub- lic use, in view of U. S. Rev. Stat.. §§ 3(579, 3732, U. S. Comp. Stat. 1901, pp. 2454, 2504, providing respectively that "no de- partment of the government shall expend in any one fiscal year any sum in e.xcess of appropriations made by congress for that fiscal year, or involve the govern- ment in any contract for the future pay- ment of monej' in excess of such appro- priations," and that "no contract or purchase on behalf of the United States shall be made unless the same is au- thorized by law, or is under an appro- priation adequate to its fulfillment,'' and of the acts of congress of June 22. 187' (18 Stat, at L. 133, 144, chap. 388), and March 3, 1877 (19 Stat, at L. 363, 370. chap. 106 U. S. Comp. Stat. 1901, p. 2514\ prohibiting contracts for the rental of property for government purposes until an appropriation therefor shall have been made in terms by congress. Hooe ?•. United States, 218 U. S^ 322, 54 L. Ed. 1055. 31 S. Ct. 85. 773-93. The enactment by congress of the provision of Indian Appropriation .A.ct March 3, 1903. c. 994. § 13. 32 Stat. 1010. 1011, for the presentation to, and decision on the merits l)y, the court of claims of a claim by a register of the land office for commissions for selling the lands ceded by the Osage Indians to the LInitcd States by the treaty of September 29, 1865 (14 Stat. 687), to be sold for thf>ir benefit, does not imply any admi.ssion that there is anything due the claimant. Judgment (1904), 39 Ct. CI. 321, affirmed. Stewart v. United States, etc., Nation, 1219 773-780 UNITBD STATES. Vol. XL d. Recognition by Executive Officer. — Executive officers are not authorized to entertain and settle claims for unliquidated damages.^^* 3. Auditing and Accounting — d. Claims for Unliquidated Damages.— See ante, "Recognition by Executive Officer," VIII, C, 2, d. The accounting officers have no jurisdiction of claims for unliquidated damages except in special and exceptional cases, in which it has been expressly conferred upon them by special or private acts.^*^'^ 5. Assignme:nt — a. Voluntary Assignment — (2) Under Federal Statutes — (b) Construction and Operation. — Under § 3477, U. S. Comp. Stat., 1901, p. 2320, all transfers and assignments of any claim on the United States, or part of a claim or any interest therein, w^hether the transfer or assignment be absolute or unconditional, and whatever was the consideration of the transfer or assignment, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof are "ab- solutely null and void," except there be a compliance with the conditions fully set out in the statute. -^^ 206 U. S. 185, 51 L. Ed. 1017, 27 S. Ct. 631. The mere recital that the claimant had a prior lien, contained in Act May 27, 1902, c. 887, 32 Stat. 207, 243, em- powering the court of claims to hear and determine a claim against the government on account of a sale of real estate to satisfy unpaid internal revenue taxes, is not an admission of that fact, where it is manifest that congress intended that the claim was to be judicially investi- gated, and determined according to all the facts as disclosed by the evidence adduced. Judgment (1906), 41 Ct. CI. 89. alfirmed. Blacklock v. United States, 208 U. S. 75. 52 L. Ed. 396. 28 S. Ct. 228, fol- lowing Kinkead v. United States, 150 U. S. 483. 37 L. Ed. 1152, 14 S. Ct. 172. 773-95a. Judgment. William Cramp & Co. V. United States (1908), 43 Ct. CI. 202, reversed. Cramp & Sons, etc.. Engine Bldg. Co. V. United States, 216 U. S. 494, 54 L. Ed. 587, 30 S. Ct. 392. 775-lOa. "And such has been the opin- ion of five attorney generals, all \'ho hive officially advised the executive officers on the subject. Attorney General Taney, in 1832, whose opinion is referred to by his successors in office: Attorney Gen- eral Nelson, in 1844 (4 Ops. Attv. Gen. 327); Attorney General ClifTord. in 1847 (4 Ops. Atty. Gen. 627); Annrnev General Cushing, in 1854 (6 Ops. Atty. Gen. 524); and Attorney General Williams, in 1872 (14 Ops. Atty. Gen. 24). And the same views were expressed by this court in 1866 (Carmick v. United States, 2 Ct. CI. 120, 140). McClure v. United States, 19 Ct. CI. 28, 29; Brannen v. United States, 20 Ct. CI. 219, 223. 224; 4 Ops. Atty. Gen. 327, 328. 626, 630." Cramo & Sons, etc.. Engine Bldg. Co. v. United States, 216 U. S. 494, 54 L. Ed. 587, 30 S. Ct. 392. 780-28a. National Bank v. Downie, 218 U. S. 345, 54 L. Ed. 1065, 31 S. Ct. 89. Section 3477 of the Rev. Stat. (U. S. Comp. Stat. 1901, p. 2320), was brought forward from previous acts of congress. The w^ords of that section are so clear and explicit that there can not be any reasonable ground to doubt the purpose of this legislation. Its essential fea- tures are not new, as can be seen by an examination of the Act of Congress of July 29, 1846, "in relation to the payment of claims" on the United States, and the Act of February 26, 1853, "to prevent frauds upon the treasury of the United States." 9 Stat, at L. 41, chap. 66; U. S. Comp. Stat. 1901, p. 2320; 10 Stat, at L. 170, chap. 81, U. S. Comp. Stat. 1901, p. 2320. National Bank v. Downie, 218 U. S. 345, 54 L. Ed. 1065, 31 S. Ct. 89. In Spofford v. Kirk, 97 U. S. 484, 24 L. Ed. 1032, the court said: "It wottld seem to be impossible to use language more comprehensive than this. It einbraces alike legal and equitable assignments. It includes powers of attorney, orders, or other authorities for receiving payment of any such claim, or anj-- part or share thereof. It strikes at every derivative in- terest, in whatever form acquired, and incapacitates every claimant upon the government from creating an interest in the claim in any other than himself." National Bank ?■ Downie, 318 U. S. 345, 54 L. Ed. 1065. 31 S. Ct. 89. Such assignments are invalid as be- tween the assignor and the assignee, if, after an assignment the claim is allowed, and a warrant for its payment issued in the claimant's name, no assignment he might have made, or order he might have given, before the allowance, could stand in the way of his receiving the whole sum allowed. It is hard to see how a transfer of a debt can be of no force as betv.'een the transferee and the debtor, and yet effective as between the creditor and his assignee to transmit an owner- ship of the debt, or create a lien upon it. The court did not affirm or deny it. The 1220 Vol. XI. UXITBD STATES. 783 b. Transfer of Title by Operation of Lazi\ — The act of 1833. embodied now in § 3477 of the Revised Statutes, to prevent frauds upon the treasury, appHes only to cases of voluntary assignment of demands against the govern- ment. It does not embrace the transfer of a claim against the United States, where the transfer of title has been by operation of law, not merely as the result of a voluntary assignment by the claimant. The passing of claims to heirs, devisees, or assignees in bankruptcy is not within the statute ; nor does the construction given the act deny to such parties a standing in the court of claims.^^^ c. Suit by Assignee. — See note 45. intention of congress must be discov- ered in the act itself. The court can not say, when the statute declares all trans- fers and assignments of the whole of a claim, or any part or interest therein, and all orders, powers of attorney, or other authority for receiving payment of the claim, or any part thereof, shall be abso- lutely null and void, that they are only partially null and void, that they are valid and effective as between the parties thereto, and only invalid when set up against the government. National Bank V. Downie, 218 U. S. 34.5, 54 L. Ed. 1065, 31 S. Ct. 89, following Spofford v. Kirk. 97 U. S. 484, 24 L. Ed. 10.'52. The obvious purpose of the statute, "in part," was to forbid anyone who was a stranger to the original transaction to come between the claimant and the gov- ernment, prior to the allowance of a claim, and who. in asserting his own in- terest or share in the claim, pending its examination, might embarrass the con- duct of the business on the part of the ofificers of the government. National Bank v. Downie, 218 U. S. 345. 54 E. Ed. 10G5, 31 S. Ct. 89. Instances — Acceptances assigned in good faith for value. — The case of Spof- ford V. Kirk, 97 U. S. 484, 490, 24 L. Ed. 1032, frequently referred to in later de- cisions and always followed, was a suit by Spofiford, in the supreme court of the district of Columbia. He l^ecame the holder, by assignment, of certain ac- ceptances which, upon their face, pro- vided for payment to be made out of any moneys received from the United States on the claim of one Kirk against the gov- ernment. The assignee or liolder of the acceptances paid value for them. and acted in entire good faith. The question was whether an assignment of a claim against the United States, made before the claim had been allowed, and before a warrant had been issued for its pay- ment, had any validit}', either in law or in equity. The court of original juris- diction dismissed Spoiiford's bill, and the iudgment was affirmed here. National Bank :'. Downie, 218 U. S. 345, 54 L. Ed. 1065, 31 S. Ct. 89. Transfer by mortgage and judicial sale. —"In St. Paul. etc.. R. Co. r. United States, 112 U. S. 733, 736, 28 L. Ed. 861, 5 S. Ct. 366, the court held that a volun- tary transfer by mortgage, for the secu- rity of a debt, and finally completed and made absolute by a judicial sale, was within the prohibition of § 3477, Mr. Jus- tice Matthews, speaking for the court, saying that, 'if the statute does not ap- ply to such cases, it would be difficult to draw a line of exclusion which leaves any place for the operation of the prohibi- tion.' " National Bank v. Downie. 218 U. S. 345. 54 L. Ed. 1065, 31 S. Ct. 89. Validity of assignment as collateral security as against trustee in bankruptcy. — Assignments as collateral security for a loan of unallowed claims against the United States on account of contracts for furnishing materials to the various departments of the government, being in direct opposition to U. S. Rev. Stat.. § 3477. U. S. Comp. Stat. 1901. p. 2320, making absolutely null and void volun- tary transfers of claims against the United States before their allowance, can confer no interest in the assignees, as against the trustee in bankruptcy of the assignors. National Bank v. Downie, 218 U. S. 345, 54 L. Ed. 1065, 31 S. Ct. 89. Attorney's contingent fee. — See post, "Attorney's Contingent Fee Agreement," VTII. C. 12, b. 783-43a. National Bank v. Downie, 218 U. S. 345. 54 L. Ed. 1065, 31 S. Ct. 89, following Erwin v. United States, 97 U. S. 392, 24 L. Ed. 1065. In Erwin z: United States, 97 U. S. 392, 397. 24 L. Ed. 1065. the court said: "This construction of the statute was recosrnized as settled law in Goodman :■. Niblark. 102 U. S. 556, 560, 26 L. Ed. 229; St. Paul, etc.. R. Co. v. United States. 112 U. S. 733. 736. 28 L. Ed. 801. 5 S Ct. 366: Butler z: Goreley. 146 U. S. 303. 311, 36 U Ed. 981, 13 S. Ct. 84; Hager v. Swayne, 149 U. S. 242. 247. 37 L. Ed. 719, 13 S. Ct. 841, and Ball z: Halscll. 161 U. S. 72, 79, 40 L. Ed. 622. 16 S. Ct. 554." National Bank z\ Downie, 218 U. S. 345. 54 L. Ed. 1065. 31 S. Ct. 89. 783-45. "In United States z: Gillis, 95 IT. S. 407, 24 E. Ed. 503, it appear'; that suit was brought in the court of claims, by the assignee of an unallowed claim on the United States, and the ciuestion 1221 793-802 UNITED STATES. Vol. XI. , 6y2. Release. — See post, Working Contracts. 12. Attorney's Fees — b. Attorney's Contingent Fee Agreement. — See note 83. Effect of § 3477, Rev. Stat., Prohibiting Assignment of Claims against United States. — See note 84. X. Suits against the United States. A. Immunity from Suit without Consent of Congress — 6. Tort Ac- tions AGAINST Officers and Agents of United States — a. In General. — The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrong- fully invaded. ^"^^ 6^. Enjoining Threatened Illegal Actions of United States Officers — a. In General. — In case of an injury, threatened by his illegal action, an officer of the United States can not claim immunity from injunctive process. If the con- duct of such officer constitutes an unwarrantable interference with property of the complainant, resort to equity for protection is not to be defeated upon the ground that the suit is one against the United States. i''-'' b. Enjoining Institution of Criminal Proceedings. — The exemption of the United States from suit does not preclude an action to prevent the secretary of war from causing criminal proceedings to be instituted against a riparian arose whether the assignee could main- tain a suit in his name for the proceeds of the claim. The court of claims sus- tained the assignee's right to sue, but this court, upon careful examination of the act of 1853, re-enacted in § 3477, Rev. Stat., reversed the judgment, and di- rected the petition of the assignee to be dismissed. It was contended in that case that the Act of 1853 had reference only to claims asserted before the treas- ury department. But that view was re- jected. After observing that the compre- hensive provisions of the statute ex- cluded any exceptions to the rule presented, the court said: 'We think, therefore, the Act of 1853 is of universal application, and covers all claims against the United States in every tribunal in which they may be asserted. And such, we think, was the vmderstanding of con- gress when the Revised Statutes were enacted. In the revision, the Act of 1853 was included and re-enacted.'" Na- tional Bank v. Downie, 2J8 U. S. 345, 54 L. Ed. 10G5, 31 S. Ct. 89. 793-83. See ante. ATTORNEY AND CLIENT, p. 158; LACHES, p. 818. 793-84. The case of Nutt v. Knut, 200 U. S. 12. 20, 50 L. Ed. 348, 26 S. Ct. 216, involved the validity of the clause in a written contract relating to compensa- tion to be made to an attorney employed to prosecute a claim against the United States. The contract provided that the payment of such compensation "is hereby made a linn upon said claim, and upon any draft, money, or evidence of in- debtedness which may be issued thereon. This agreement not to be affected by any services performed by the claimant, or by any other agents or attorneys em- ployed by him." After referring to the words of § 3477, and citing previous cases in which the scope and meaning of that section were considered. It was held that the contract was null and void on its face. National Bank v. Downie, 318 U. S. 345, 5.4 L. Ed. 1065, 32 S. Ct. 89. In Nutt V. Knut, 200 U. S. 12, 50 L. Ed. 348, 26 S. Ct. 216, the court said, in re- gard to that clause making the payment of the attorney's compensation a lien upon the claim asserted against the gov- ernment, and upon any draft, money or evidence of indebtedness issued thereon: "In giving that lien from the outset, be- fore the allowance of the claim, and be- fore any services had been rendered by the attorney, the contract, in effect, gave him an interest or share in the claim it- self, and in any evidence of indebtedness issued by the government on account of it. In effect, or by its operation it trans- ferred or assigned to the attorney in ad- vance of the allowance of the claim such an interest as would secure the payment of the fee stipulated to be paid. .\11 this was contrary to the statute." National Bank v. Downie, 218 U. S. 345, 54 L. Ed. 1065, 31 S. Ct. 89. See ante, "Assign- ment," VIII, C, 5. 800-14a. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340, following The Flying Fish. 2 Cranch 170, 2 L. Ed. 243; United States v. Lee, 106 U. S.,196, 221. 27 L. Ed. 171. 1 S. Ct. 240; Belknap v. Schild, 161 U. S. 10, 18, 40 L. Ed. 599. 16 Ct. 443; Tindal v. Wes- ley, 167 U. S. 204, 42 L. Ed. 137, 17 S. Ct. 770; and Scranton 7'. Wheeler, 179 U. S. 14T. 152. 45 L. Ed. ■l?6. 21 S. Ct. 48. 802-17a. Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570, 32 S. Ct. 340. 1222 Vol. XL UPON CONDITION. 802-82 9 owner because of the reclamation and occupation of his land outside prescribed harbor limits, if his rights of property were wrongfully invaded in fixing such limits. i'"" One whose property rights have been invaded in fixing harbor lines may maintain an action to restrain the secretary of war from causing threatened criminal proceedings to be instituted against him in accordance with the provisions of the Act of Congress of March 3, 1899 (30 Stat, at L. 1121, 115J-1153, chap. 425, U. S. Comp. Stat. 1901, pp. 3541, 3542, 3544), §§ 11, 12, 17, for undertaking the reclamation and occupation of land belonging to him beyond the prescribed harbor limits. ^"'= J. Suits by State.— Bill to Establish Title.— See note 30a. XII. Executive Departments. See ante, "Suits against the United States," X. UNITED STATES COMMISSIONERS.— See the title United States CommissioxErs. vol. 11, p. 817, and references there given. UNITED STATES COURTS.— See ante. Courts, p. 398. UNITED STATES MARSHALS.— See the title UxXited States ^Iarshals, vol. 11. p. 822, and references there given. UNIVERSITY GRANTS.— See ante, Public Lands, p. 1012. UNIVERSITY LANDS.— See ante. Public Lands, p. 1012. UNLAWFUL USE OF MAILS.— See ante. Postal Laws, p. 996. UNMANUFACTURED TOBACCO.— See note 2a. UNMIXED JURY.— See ante, Civil Rights, p. 236. UPON CONDITION.— See ante, Conditions, p. 248. 802-17b. Philadelphia Co. v. Stimson, in equitj' filed by the state of Louisiana 223 U. S. G05, 56 L. Ed. 570, 32 S. Ct. 340. against the secretary of the interior and 802-17C. Philadelphia Co. v. Stimson, the commissioner of the general land 223 U. S. 605, 56 L. Ed. 570, 33 S. Ct. 340. office to establish its title under the An action to prevent the secretary of Swamp Land Grant Act of March 2, 1849 war from causing threatened criminal (9 Stat. 352, c. 87), to certain lands v.hich proceedings to be instituted against a were approved to the state bj- the secre- riparian owner because of the reclama- tarj' of the interior upon the manifest tion and occupation of land outside pre- mistake of law. that, upon the abandon- scribed harbor limits, in the fixing of ment of the military reservation of which which such owner claims that his prop- they formed a part, the lands fell within erty rights have been invaded, will lie the terms of the grant, since such suit in a court of equity in the District of Co- raises questions of law and fact upon lumbia in which jurisdiction of the per- which the United States would have to son of the secretary of war has been be heard. -Louisiana v. Garfield, 211 U. properly obtained. Although complain- S. 70. 53 L. Ed. 92, 29 S. Ct. 31. ant will be required to prove his title to 829-2a. Revenue laws.— Tobacco sweep- land outside such harbor limits, the har- j^gs or scrap used in the manufacturing bor line is claimed to be a cloud upon of stogies and cigarettes are dutiable un- his title, and such land is in a navigable der the Tariff Act of 1897, par. 215, as un- river in Pennsylvania, outside the tern- manufactured tobacco and not under tonal junsdiction of the court. Phila- p^r. 4r,3. as "waste not specially provided delphia Co. v. Stimson. 223 U. S. 605, 56 for in this act." Latimer v. United States, L. Ed. 570, 32 S. Ct. 340. 223 U. S. 501. 56 L. Ed. 526, 32 S. Ct. 242. 805-30a. The supreme court of the See ante, REVENUE LAWS. p. 1071. United States has no jurisdiction of a bill 1223 833-862 VARIANCE. Vol. XI. USAGES AND CUSTOMS. V. Requisites, 1224. VI. Application and Effect, 1224. A. As to Contracts, 1224. 1. To Make Contract, 1224. CROSS REFERENCES. See the title Usages and Customs, vol. 11, p. 831, and references there given. V. Requisites. Testimony that it is a custom of land agents to have applicants for public lands make affidavits in regard to the character and occupation of the land without personal knowledge is inadmissible in a prosecution for conspiring to obtain land from the United States through fraud, as a custom can not be established in violation of law.^^^ VI. Application and Effect. A. As to Contracts — 1. To Make Contract. — See note 17. USURY. — See the title Usury, vol. 11, p. 838, and references there given. In addition, see ante. Banks and Banking, p. 184. VACANT LANDS.— See ante, Pubuc Lands, p. 1012. VACATION.— See ante, Adjournments, p. 9. VALIDATION OF LAND CLAIMS.— See ante. Public Lands, p. 1012. VARIANCE. II. Variance between Pleadings and Proof, 1224. CROSS REFERENCES. See the title Variance, vol. 11, p. 860, and references there given. In addition, see ante. Specific Performance, p. 1114. II. Variance between Pleadings and Proof. Test as to Materiality of Variance. — See note 7. 833-13a. Requisites. — Hyde f. United which shall be kept continually in place, States, 35 App. D. C. 451, writ of cer- and preclude extra allowance for ex- tiorari granted in Hyde v. United States, cavating material different from that 218 U. S. G81, 54 L. Ed. 1207, 31 S. Ct. therein described, or payment for work 228. See ante, PUBLIC LANDS, p. outside the designated lines of excava- 1012. tion or below the specified depth, and 834-17. Application and effect as to state that any material deposited other- contracts. — Payment for removing the wise than specified and agreed upon must earth which may slide into the channel be removed by the contractor at his own from the sides or slopes during excava- expense, that no guaranty is given as to tion is so clearly excluded by a dredging the nature of the bottom, and that no contract as to prevent giving the words claim will be made for any excess or "measured in place" a trade meaning deficiency in the estimate of quantity, which demands a different construction, Judgment (1906), 41 Ct. CI. 214, affirmed. where the specifications provide for pay- Bowers, etc.. Dredging Co. v. United ment by the cubic yard, measured in States, 211 U. S. 176, 53 L. Ed. 136, 29 place, determined by surveys made be- S. Ct. 77. fore dredging is commenced and after 862-7. When variance deemed imma- completion, require that the work shall terial. — Standard Oil Co. ?'. Brown, 218 be plainly located by stakes and ranges, U. S. 78, 54 L. Ed. 939, 30 S. Ct. 669. 1224 Vol. XI. VENDOR AND PURCHASER. 898-900 VENDITIONI EXPONAS.— See the title Venditioni Exponas,, vol. 11. p. 863, and references there given. VENDOR AND PURCHASER. V. Remedies, 1225. A. Of Vendor, 1225. 4. Election of Remedies, 1225. B. Of Purchaser, 1225. 2. Breach of Contract, 1225. a. ^Measure of Damages, 1225. c. Evidence, 1225. 2j^. Damages for Dispossession, 1225. CROSS REFERENCES. See the title Vendor and Purchaser, vol. 11, p. 864, and references there given. As to sufficiency of amount in dispute, in a suit to recover damages for breach of contract by the vendor, to give the federal supreme court jurisdiction of a w^rit of error to the court of appeals of the District of Columbia, see ante, Appeal and Error, p. 34. As to a condition in a contract for the sale of mines, see ante, Contracts, p. ZYZ. As to a vendee of land upon which a railroad company had constructed its road without making compensation therefor, see ante. Eminent Domain, p. 537. As to admissibility of parol evidence to identify the premises and to remove an ambiguity in the contract, see ante, Parol Evidence, p. 931. V. Remedies. A. Of Vendor — 4. Election oe Remedies. — A vendor may acquire, un- der the terms of the contract of sale, the right to elect either to insist upon a forfeiture by the vendee or to enforce specific performance after default in payment of the balance of the purchase price. ^"^^ B. Of Purchaser — 2. Breach of Contract — a. Measure of Damages. — The difference between the purchase price and the market value at the time of executing a contract for the sale of land is the measure of damages in an action by the vendee for the vendor's refusal to perform. ^"^ c. Evidence. — Evidence of the value of the benefit of a liquor license and of the business and good will embraced in a contract for the sale of real prop- erty is admissible on the question of damages in an action by the vendee against the vendor, for refusal to perform.^^ 2^. Damages for Dispossession. — The purchaser in possession under a contract for the sale of mines by which the deed was placed in escrow. 898-87a. The vendor may elect either of a lot reserved, the vendor "shall have to insist upon the forfeiture or enforce paid to him a soecified sum if he elects specific performance after default in pay- to abandon it." Decree. Griffith v. ment of the balance of the purchase price. Stewart (1908). .31 App. D. C. 29. affirmed, under a contract which provides that, if Stewart f. Griffith, 217 U. S. 323. .54 L. such balance be not paid on a specified Ed. 782. 30 S. Ct. 528. date, the amount paid "is to be forfeited, 899-97a. Measure of damages for and the contract of sale and conveyance vendor's refusal to perform. — Harten ?•. to be null and void, and of no effect in T.offler. 212 U. S. .".;i7. .">•'? L. Kd ."), 29 law," where the sum paid is stated to be c; q^ '-51 affirmimj 20 App. D. C. 490. "part purchase price of the total sum to ^^^_^^ Evidence admissible on ques- be paid the land is described as be- ^j^^^ ^j damages.-Harten v. Loffler. 212 inR sold, and the purchase price is to ^y q „„_ .-o t va ^ks oq q Cf r>ri be divided and the notes secured by ^^,^^- 09 App. D. C. 490. mortgage to be given, and. m the case 122.'. 900-910 VBNUB. Vol. XL and the purchaser required to deposit in a designated bank, the net proceeds from the ores, to be credited upon the purchase price, can not claim damages for his dispossession by the vendor because of the failure to make such de- posits, without showing a valid excuse therefor.^'^ VENDOR'S LIENS.— See the title Vendor's Liens, vol. 11, p. 902, and references there given. In addition, see ante. Courts, p. 398. VENIRE FACIAS.— See ante. Grand Jury, p. 609. VENUE. II. In Civil Actions, 1226. A. Actions at Law, 1226. 1. In Federal Courts, 1226. b. Under Statute, 1226. 3. In Particular Actions, 1227. a. Actions on Contract, 1227. b. Actions for Tort, 1228. (2) For Personal Injuries, 1228. (a) In General, 1228. (b) Death by Wrongful Act, 1228. c. Actions Affecting Title to Real Estate, 1228. in. In Criminal Actions, 1228. A. In General, 1228. B. In Federal Courts, 1228. 1. Crimes Committed within a State or District, 1228. a. In General, 1228. 3. Crimes Committed Partly in One and Partly in Another District, 1229. CROSS REFERENCES. See the title VenuE, vol. 11, p. 909, and references there given. In addition, see ante. Appearances, p. 144; Constitutionae Law, p. 264; Death by Wrongful Act, p. 456; Executors and Administrators, p. 564; Foreign Corporations, p. 584; Removal op Causes, p. 1058. As to jurisdiction generally, see ante. Courts, p. 398. As to transfer of ju- risdiction from one district to another, see ante, Criminal Law, p. 434. II. In Civil Actions. A. Actions at Law — 1. In Federal Courts — b. Under Statute. — See notes 8, 17. An action may be maintained against a corporation created by congress 900-3b. Circumstances under which come of a conspiracy and combination in vendor can not claim damages for dis- restraint of interstate trade, unlawful both possession. — World's Fair Min. Co. v. at common law and under the federal Powers, 224 U. S. 173, 56 L. Ed. 717, 32 statutes, is one in which the jurisdiction S. Ct. 453. of the federal court is not invoked solely 910-8. Venue — Federal courts. — West- upon the ground of diversity of citizen- more V. Tennessee Copper Co., 218 U. S. ship, and can therefore not be brought in 369, 54 L. Ed. 1073, 31 S. Ct. 84; Ladew a federal district in which none of the V. Tennessee Copper Co., 218 U. S. 357, defendants reside, in view of the provision 54 L. Ed. 1069, 31 S. Ct. 81. of Act Aug. 13, 1888, c. 866, 25 Stat 433 A suit by resident shippers to restrain (U. S. Comp. St. 1901, p. 508), that no foreign interstate carriers from putting civil suit shall be brought in any other into effect a proposed advance in freight district than that whereof the defendant rates which is averred to be an "arbitrary is an inhabitant, but, where the jurisdic- and unlawful exaction," and to be the out- tion is founded only on the fact that the 1226 Vol. XI. VENUE. 911-912 in the district where its president lives and the corporation maintains its offi- cers. ^^* 3. In Particular Actions — a. Actions on Contract. — The restriction as to the place of suit when persons holding unpaid demands for labor or materials bring an action in the name of the United States, on the bond of a public con- tractor, given conformably to an act of congress, to the federal court for the dis- trict in which the contract is to be performed, and not elsewhere, governs as well where the action is brought by the United States against the principal and surety on the bond, for the failure to pay certain designated subcontractors for labor and materials used in the construction of the work.^*^^ The act does not apply where the contract with, and the bond to, the United States, and the contract under which the labor and material were furnished, antedate the passage of the act.^o'^ action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Decree, At- lantic Coast Line R. Co. v. Macon Gro- cery Co. (C. C. A. lOOrt ), 166 F. 20G, af- firmed. Macon Grocery Co. f. Atlantic, etc., R. Co., 215 U. S. 501. 54 L. Kd. 300, 30 S. Ct. 184. 911-17. Waiver of Objections. — The objection that a suit in a federal circuit court between citizens of different states is not brought in the proper district is waived demurring and answering without raising that question. Decree, Coran r. Ingersoll (1906), 148 Fed. 169, 78 C. C. A. 303, reversed. Ingersoll z\ Coram. 211 U.S. 335, 53 L.Ed. 208. 29 S. Ct. 92. Making up the issues on the merits without objection waives the right to object, because of the nonresidence of both parties within the district, to the jurisdiction of a federal circuit court to which the cause has been removed from the state court for diverse citizenship, ludgment (1907). 152 F. 120. 81 C. C. A. 338, 11 L. R. A. CN. S.), 684, reversed. Kreigh f. Westinghouse. etc., Co.. 214 U. Sr 249. 53 L. Ed. 984. 29 S. Ct. 619. Presence of one of several defendants. — The presence of one of the defendants in the federal district in which suit by the United States under the Antitrust Act July 2, 1890. c. 647, § 4, 26 Stat. 209 (U. S. Comp. St. 1901. p. 3201), is brought to restrain violation of that act justifies the court in making an order under § 5 for the service of process upon all the other defendants, wherever they may be found. Standard Oil Co. z'. United States. 221 U. S. 1. 55 L. Ed. 619. 31 S. Ct. .502. aflfirming judgment (C. C. 1909). United States z: Standard Oil Co. of New Jersey-. 173 F. 177. 911-18a. Actions by or against corpo- rations. — A corporation created by an act of congress which, having designated Dallas. Texas, where its senior vice presi- dent lives, as its general office, maintains an office in Dallas county, and has all the acts of its board of directors taken in New York City affirmed by a meeting of the board at Dallas, is suable in the Northern district of Texas, under Act March 11, 1902, c. 183, 32 Stat. 68 (U. S. Comp. St. Supp. 1907, p. 163), and Tex. Sayles' Ann. Civ. St. 1897, arts. 1222, 1223, as being a resident of, and doing business in, that district, and having an agent there upon whom service can prop- erly be made. In re Dunn. 212 U. S. 374, 53 L. Ed. 558, 29 S. Ct. 299. 912-20a. Action on contracts. — The limitation to the federal circuit court of the district wherein a contract for a pub- lic work is to be performed of an action brought by the United States against the principal and sureties on the bond of a public contractor, given conformably to Act Feb. 24, 1905, c. 778, 33 Stat. 811 fU. S. Comp. St. Supp. 1909, p. 948). amend- ing Act Aug. 13. 1894, c. 280. 28 Stat. 278 (U. S. Comp. St. 1901. p. 2523), for his failure to pay certain designated subcon- tractors for labor and materials used in construction, operates pro tanto to dis- place the provisions upon that subject in General Jurisdictional Act Aug. 13. 1888. c. 866. § 1. 25 Stat. 433 (U. S. Comp. St. 1901. p. 508"), and amply authorizes the circuit court for the district wherein the action is required to be brought to ob- tain jurisdiction of the persons of the de- fendants through the service upon them of its process in vx^hatever district they may be found. United States z\ Congress Constr. Co., 222 U. S. 199, 56 L. Ed. 163. 32 S. Ct. 44. 912-20b. Contract antedating act. — The provisions as to the proper district for suit on the bond of a public con- tractor made by Act Feb. 24, 1905. c. 778. 33 Stat. 811 CU S. Comp. St. Supp. 1907. p. 709), amendine Act Aug. 13. 1894, c. 280. 28 Stat. 278 CU. S. Comp. St. 1901. p. 2523), for the protection of persons fur- nishinsr materials and labor for the con- struction of a public work, do not apply where the contract with, and the bond to. the governmert. and the contract un- der which the labor and materials were furnished, all antedate the passage of the pmendaiorv ?cj. Davidson Bros. Marble Co. z: United States, 213 U. S. 10, 53 L. Ed. 675. 29 S. Ct. 324. A suit brought in the name of the 12 912-914 VBNUB. Vol. XI. b. Actions for Tort — (2) For Personal Injuries — (a) In General. — See note 23. (b) Death by Wrongful Act. — See note 24. c. Actions Affecting Title to Real Estate. — See note 30. in. In Criminal Actions. A. In General. — See note 43. B. In Federal Courts — 1. Crimes Committed within a State or Dis- trict — a. In General. — See note 46. The constitution does not give the ac- United States under Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), on the bond of a public con- tractor, for the benefit of a person fur- nishing materials and labor for the con- struction of a public work, is governed by that part of Act March 3, 1887, c. 373, 24 Stat. 552, as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), which provides that no civil suit shall be brought before any federal circuit court "against any person, by any original process or proceeding, in any other district than that whereof he is an inhabitant." Davidson Bros. Marble Co. V. United States. 213 U. S. 10, 53 L. Ed. 675, 29 S. Ct. 324. 912-23. Action for personal injury. — Price V. Henkel, 216 U. S. 488, 54 L. Ed. 581, 30 S. Ct. 257. An action for personal injuries is uni- versally held to be transitory, and main- tainable wherever a court may be found that has jurisdiction of the parties and the subject matter. Undoubtedly, where the cause of action is created by the state, as is the action to recover for death by wrongful injury, there is no objection to the enforcement of the law because it arose in another jurisdiction. Atchison, etc., R. Co. V. Sowers. 213 U. S. 55, 67, 53 L. Ed. 695, 29 S. Ct. 397. "It is then the settled law of this court that in such statutory actions the law of the place is to govern in enforcing the right in another jurisdiction, but such actions may be sustained in other juris- dictions when not inconsistent with any local policy of the state wherein the suit is brought." Atchison, etc., R. Co. v. Sowers, 213 U. S. 55, 67. 53 L. Ed. 695. 29 S. Ct. 397. 912-24. Death by wrongful act. — Atchi- son, etc., R. Co. V. Sowers, 213 U. S 55 53 L. Ed. 695, 29 S. Ct. 397. 913-30. Actions affecting title to real estate. — Wetmore v. Tennessee Copper Co., 218 U. S. 369, 54 L. Ed. 1073, 31 S. Ct. 84; Stewart v. Griffith, 217 U. S. 323 54 L. Ed. 782, 30 S. Ct. 528. The asserted right of citizens of New York and West Virginia, as owners of timber lands in Georgia, near the Ten- nessee boundary line, to protection against the destruction of their forests by the discharge of deleterious fumes and gases from the works of a Xew Jer- sey corporation situated within the ter- ritorial jurisdiction of the federal circuit for the eastern district of Tennessee, is not a claim to real property within the district, within the meaning of Act March 3, 1875, c. 137, § 8, 18 Stat. 472 (U. S. Comp. St. 1901, p. 513), providing for bringing in absent defendants in local ac- tions, so as to confer jurisdiction upon that court over the New Jersey corpora- tion, which refuses to appear voluntarily in the suit as a defendant. Ladew v. Ten- nessee Copper Co., 218 U. S. 357, 54 L. Ed. 1069, 31 S. Ct. 81, affirming decree (C. C.) 179 F. 245. 914-43. In criminal cases. — The federal district court at Paris, Tex., can not be said to have been without jurisdiction to try a member of the Choctaw and Chicka- saw Nation charged with homicide, be- cause the order of the United States court in the Indian territory, changing the venue, pursuant to Act June 28, 1898, c. 517, § 29. 30 Stat. 511, did not state whether the cause was transferred to the federal district or circuit court, but only to the "United States court" at that place, where the district court was the only court to which the case could have been removed under the statute, and the record was transferred to and filed in that court, and the case was tried there. Hendrix v. United States, 219 U. S. 79. 55 L. Ed. 102, 31 S. Ct. 193. 914-46. Crimes committed in state or district. — Haas v. Henkel, 216 U. S. 462, 54 L. Ed. 569. 30 S. Ct. 249. The requirement that the prosecution of crimes against the United States be had in the state or district where the of- fense was committed, which is made b}"^ Const. U. S., amendment six, is not vio- lated by the provision of Elkins Act Feb. 19, 1903, c. 708. 32 Stat. 847 (U. S. Comp. St. Supp. 1907, p. 880), under which the offense of obtaining transpor- tation of goods from Kansas City to New York City at less than the carrier's published rates may be tried in any fed- eral district through which such trans- portation was conducted. Armour Pack- ing Co. V. United States. 209 U. S. 56, 52 L. Ed. 681. 28 S. Ct. 428, affirming judg- ment C1907), 153 F. 1, 82 C. C. A. 135; 1228 ^'ol. XL VERDICT. 914-916 ciised the right to be tried in the district in which he resides.-*"* 3. Crimes Committed Partly in One and Partly in Another District. — See note 39. VERBAL ACTS.— See note a. VERBAL AGREEMENTS.— See ante. Frauds, Statute of, p. 600. VERBAL CONTRACTS.— See ante. Contracts, p. Z7Z\ Frauds, Statute OF, p. 600. VERDICT. II. Finding Verdict, 1229. B. DeHberation. 1229. ni. General Verdict, 1230. C. A'alidity, 1230. 4. Evidence of Invahdity, 1230. VIII. Special Interrogatories, 1230. X. Directing Verdict, 1230. D. Motion to Direct, 1230. 2. Motion by Both Parties, 1230. E. \\'hen A'erdict Directed, 1230. 1. In Civil Cases, 1230. c. \\'here Evidence Conclusive, 1230. j. In Action for Penalty, 1231. CROSS REFERENCES. See the title \'erdict, vol. 11, p. 917, and references there given. II. Finding Verdict. B. Deliberation. — Where, in a criminal case, after the jury had deHberated for three days the judge informs them that they may find some of the several defendants guilty and others not guilty, under the instruction that the law would Chicago, etc., R. Co. v. United States, Co. v. United States, 209 U. S. 56. 52 L. S09 U. S. 90. 52 L. Ed. 698, 28 S. Ct. 439. Ed. 681, 28 S. Ct. 428. affirming judgment, affirming judgment (C. C. A. 1907). 157 (1907), 153 F. 1, 82 C. C. A. 135: Chi- F. S30. cago, etc., R. Co. v. United States, 209 914-47a. Haas v. Henkel. 216 U. S. 462, U. S. 90. 52 L. Ed. 698. 28 S. Ct. 439, af- 54 L. Kd. 569. 30 S. Ct. 249. firming judgment (C. C. A. 1907). 157 F. 916-59. Crime committed partly in 830. more than one jurisdiction — Haas i'. 916-a. Boycott. — In the case of an un- Henkel. 216 U. S. 462, 54 L. Ed. 569, 30 lawful conspiracy, the agreement to act S. Ct. 249; Price v. Henkel, 216 U. S. 488, in concert when the signal is published, 54 L. Ed. 581, 30 S. Ct. 257. gives the word "Unfair," "We don't pat- The offense of obtaining transportation ronize," or similar expressions, in the of property in interstate or foreign com- list published for purpose of boycott, a merce at less than the carrier's published force not inhering in the words them- rates, created by Flkins Act Feb. 19, selves, and therefore exceeding any pos- 1903, c. 708. 32 Stat. 847 (U. S. Comp. St. sible right of speech which a single in- Supp. 1907. p. 880), is made triable in any dividual might have. Under such cir- federal district through which such trans- cumstances they become what have been portation is had by the provision of that called verbal acts, and as much subject act that violations shall be prosecuted to injunction as the use of any other in any court of the United States having force whereby property is unlawfully iurisdiction of crimes within the district damatred. Gompers 7'. Buck Stove, etc., in which such violation was committed. Co., 221 U. S. 418, 439, .'55 L. Ed. 797. 31 or through which the transportation mav S. Ct. 492. vSee ante. CONSPTR.-XCY. p. have been conducted. Armour Packing 256; INJUNCTIONS, r- 657. 1229 919-933 VERDICT. Vol. XL not recognize a coerced verdict, the verdict is not invalid because coerced by the judge.^^ III. General Verdict. C. Validity — 4. Evidence of Invalidity. — The verdict of a jury, convicting two of the four defendants on trial for criminal conspiracy, and acquitting the others, can not be impeached by the testimony of the jurors tending to show that such verdict was the result of a bargain, or was induced by coercion from the court. 41^ VIII, Special Interrogatories. The court need not require the jury to answer a special interrogatory which inquires into a fact only incidental to the issue, and which was, besides, unde- fined and uncertain as to time.^^* X. Directing Verdict, D. Motion to Direct — 2. Motion by Both Parties. — See note 27. E. When Verdict Directed — 1. In Civil Cases — c. Where Evidence Con- clusive. — See note 40. 919-6a. Deliberation. — The verdict in a prosecution for a criminal conspiracy can not be said to have been coerced be- cause, after a long trial during which the jurors were not allowed to separate, and, after deliberation for three days and nights without result, they were in- structed without objection to consider the possibility of the guilt of some of the defendant's, following which suggestion they shortly thereafter brought in a ver- dict of guilty as to two of the four de- fendants, and not guilty as to the others, the court saying, when giving such in- structions, that the law would not rec- ognize a coerced verdict, and that it was not his intention to prolong their deliberations unduly, and that if, after another effort, they could not conscien- tiously and freely agree upon a verdict, they would be discharged. Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, 32 S. Ct. 793. 923-41a. Evidence of invalidity. — Hyde V. United States. 225 U. S. 347, 56 L. Ed. 1114, 32 S. Ct. 793. 930-14a. Special interrogatories.— Judg- ment, 17 Okl. 344, 87 Pac. 311, affirmed. Drumm-Flato Comm. Co. v. Edmisson. 208 U. S. 534, 52 L. Ed. 606, 28 S. Ct. 367. 931-27. Motion by both parties. — A judgment entered on a verdict directed by the court after both parties had moved for such direction must stand un- less the court's ruling is wrong as a mat- ter of law. (1911) Sena v. American Tur- quoise Co., 220 U. S. 497, 55 L. Ed. 559, 31 S. Ct. 488, affirming judgment (1908), 98 P. 170, 14 N. M. 511. The request by both parties for per- emptory instructions in their favor does not amount to a submission of the facts to the court, so as to exclude the right of the plaintiffs to have the case go to the jury in accordance with subsequent special requests asked on their behalf. Judgments (1906), 147 F. 457. 77 C. C. A. 601, and 147 F. 463. 77 C. C. A. 607, af- firmed. Empire State Cattle Co. v. Atchi- son, etc., R. Co., 210 U. S. 1, 52 L. Ed. 931, 28 S. Ct. 607. A party may request a peremptory in- struction, and yet, upon refusal of the court to give it, insist by appropriate re- quests, upon the submission of the case to the jury where the evidence is con- flicting or the inferences to be drawn therefrom are divergent. To hold the contrary would unduly extend the doc- trine of Beuttell v. Magone, 157 U. S. 154, 39 L. Ed. 654, by causing it to em- brace a case not within the ruling of that case. Empire State Cattle Co. v. Atchi- son, etc., R. Co., 210 U. S. 1, 52 L. Ed. 931, 28 S. Ct. 607. 933-40. Where evidence conclusive. — Hepner v. United States. 213 U. S. 103, 53 L. Ed. 720, 29 S. Ct. 474. "The validity of the peremptory in- struction must depend upon whether the evidence was so undisputed or was of such a conclusive character as would have made it the duty of the court to set aside the verdicts if the cases had been given to the ji;ry and verdicts returned in favor of the plaintiff." Empire State Cattle Co. V. Atchison, etc., R. Co.. 210 U. S. 1, 10, 52 L. Ed. 931, 28 S. Ct. 607. A peremptory instruction is properly given on behalf of the carrier in an ac- tion against it to recover for a loss to a shipment of cattle, alleged to have been occasioned by its negligence, where the undisputed evidence is of such a char- acter as would make it the duty of the court to set aside the verdict if the case had been given to the jury, and the ver- dict rendered in favor of the plaintiffs. 1230 Vol. XI. WAIVER AND ABANDONMENT. 935-936 j. In Action for Penalty. — An action for debt brought by the United States to recover a penalty under the act of congress regulating the immigration of aliens into this country is a civil action, and the government is entitled to a peremptory instruction in its favor, where the undisputed testimony leaves no facts for the jury to consider but established beyond all question and as a matter of law the government's right to the prescribed penalty.-*"^ VESSEL. — See ante, Admiralty, p. 10; Collision, p. 243; Ships and Shipping, p. 1096; post, Working Contracts. VESTED.— See note la. VESTED REMAINDERS.— See ante. Remainders, Revt^rsions and Exec- utory Interests, p. 1057. VESTED RIGHTS.— See ante, Constitutional Law, p. 264; Impairment OF Obligation of Contracts, p. 624. VEXATIOUS LITIGATION,— See ante, Multiplicity of Suits, p. 894. VOLUNTARY BANKRUPTCY.— See ante, Bankruptcy, p. 168. VOLUNTARY CONFESSIONS.— See ante, Confessions, p. 249. VOLUNTARY CONVEYANCES.— See ante. Fraudulent and Voluntary Conveyances, p. 600. VOTING TRUSTS.— See the title Voting Trusts, vol. 11, p. 938, and ref- erences there given. In addition, see ante, Cross Bills, p. 453. VOYAGES.— See ante. Freight, p. 604. WAIVER AND ABANDONMENT.— See the title Waiver and Abandon- ment, vol. 11, p. 938, and references there given. In addition, see ante, Ex- ecutors and Administrators, p. 564; Grand Jury, p. 609; Removal of Causes, p. 1058. As to waiver of error by trial court in overruling demurrer to evidence, see ante, Appeal and Error, p. 34. As to review of question whether railway companies waive their charter rights to change the line of a narrow-gauge road, see ante. Railroads, p. 1046. As to waiver of objection that a particular federal circuit court is without jurisdiction of a suit between citizens of different states because neither of the parties is a resident of the district, see ante, Venue, p. 1226. Tudgments (1906), 147 F. 457. 77 C. C. A. 213 U. S. 103. 115. 53 L. Ed. 720, 29 S. 601, and 147 F. 463, 77 C. C. A. 607, af- Ct. 474. firmed. Empire State Cattle Co. v. Atchi- 936-la. Vested interests. — In the Act son, etc., R. Co., 210 U. S. 1, 52 L. Ed. of June 27, 1902, c. 1160, § 3, 32 Stat. 406, 931. 28 S. Ct. 607. which provides for refunding "so much 935-47a. In action for penalty. — Hep- of succession taxes as may have been coi- ner V. United States, 213 U. S. 103, 53 L. lecled on contingent beneficial interests Ed. 720. 29 S. Ct. 474, decided under the which shall not have become vested prior .\ct of March 3, 1903. to July first, nineteen hundred and two," "The defendant was, of course, entitled the words "which shall not have become t'j have a jury summoned in this case, vested," quoted above, mean the same as but that right was subject to the condi- "absolutely vested in possession or enjoy- tion, fundamental in the conduct of civil ment" in a later clause ending the tax on actions, that the court may withdraw a contingent interests unless so vested be- case from the jury and direct a verdict, fore July 1, 1902. United States v. Fi- accordino to the law, if the evidence is dolity Trust Co., 222 U. S. 158, 159, 56 L. uncontradicted and raises only a ques- Ed. 137, 32 S. Ct. 59. vSee ante, SUCCES- tion of law." Hepner v. United Stales, SION TAXES, p. 1149. 1231 948-960 WAR. Vol. XL WAR. V. Effect of War upon the Status of Individuals, 1232. A. In General, 1232. VII. Conquest of Territory and the Government Thereof, 1232. F. Government of Conquered Territory, 1232. 2. Government of Territory Conquered by the United States, 1232. a. In General, 1232. VIII. Capture and Confiscation of Property, 1232. D. What Property Subject to Capture and Confiscation, 1232. 1. In General, 1232. CROSS REFERENCES. See the title War, vol. 11, p. 941, and references there given. In addition, see ante. Courts, p. 398; International Law, p. 686. V. Effect of War upon the Status of Individu.als. A. In General. — See note 40. VII. Conquest of Territory and the Government Thereof. F. Government of Conquered Territory — 2. Government of Territory Conquered by the United States — a. hi General. — The civil government of the United States can not extend immediately, and of its own force, over terri- tory acquired by war. Such territory must necessarily, in the first instance, be governed by the military power under the control of the president as commander in chief. ^^^ The military power includes the authority to establish courts of jus- tice.^s'' VIII. Capture and Confiscation of Property. D. What Property Subject to Capture and Confiscation — 1. In Gen- eral. — See note 56. 948-40. Who are enemies in war. — der the Spanish sovereignty were open. Turagua Iron' Co. v. United States, 213 Santiago v. Nogueras, 214 U. S. 260, 53 U. S. 297, 53 L. Ed. 520, 29 S. Ct. 3S5. L. Ed. 989, 29 S. Ct. 608. 958-28a. Government of territory con- 960-56. Status of owner immaterial. — quered by the United States. — Santiago Juragua Iron Co. v. United States, 212 r. Nogueras, 214 U. S. 260, 53 L. Ed. 989, U. S. 297, 53 L. Ed. 520, 29 S. Ct. 385, af- 29 S. Ct. 608. firming 42 Ct. CI. 99. i 958-28b. Military power includes au- "An American corporation, doing busi- thority to establish courts of justice. — ness in Cuba, was, during the war with Santiago v. Nogueras, 214 U. S. 260, 53 Spain, to be deemed an enemy to the L. Ed. 989, 29 S. Ct. 608. See ante, United States with respect of its prop- MILITARY LAW, p. 862. erty found and then used in that coun- The creation of the United States pro- try, and such property could be regarded visional court for Porto Rico between as enemy's property, liable to be seized April 11, 1899, when the ratifications of and confiscated by the United States in the treaty of peace by which Porto Rico the progress of the war then being was ceded to the United States were ex- prosecuted; indeed, subject, under the changed, and May 1, 1900, when the Act laws of war, to be destroyed whenever, of April 12, 1900 (31 Stat, at L. 77, chap. in the conduct of military operations, its 191), establishing a civil government in destruction was necessary for the safety Porto Rico, took effect, was within the of our troops or to weaken the power of scope of the military power, acting by the enemy." Juragua Iron Co. v. United the authority of the president as com- States. 212 U. S. 297, 53 L. Ed. 520, 29 S. mander in chief, although peace then Ct. 385. prevailed, and the courts established un- 1232 Vol. XL' WATER COMPJXIES AXD WATERWORKS. WARD. — See ante, Guardian and Ward, p. 611. WAREHOUSES AND WAREHOUSEMEN.— See the title Warehouses AND Warehousemen, vol. 11, p. 970, and references there given. And as to the right. of a state to tax German warehouse receipts, see ante, Taxation, p. 1156. WARRANTS. — See the title Warrants, vol. 11, p. 9/3, and references there given. WARRANTY. — See the title Warranty, vol. 11, p. 974, and references there given. WAR REVENUE ACT.— See ante. Revenue Laws, p. 1071. WASTE. — See the title Waste, vol. 11, p. 984. and references there given. WASTE— WASTING.— See ante. Revenue Laws, p. 1071. WATER COMMISSIONERS.— See post, Waters and Watercourses. WATER COMPANIES AND WATERWORKS. I. Franchise, Powers and Privileges, 1233. A. Power of State or ^Municipality to Grant, 1233. 2. Exclusive Franchise. 1233. II. State and Municipal Control, 1233. C. Rights and Remedies Where Company Fails to Discharge Duties Im- posed by Charter or Contract, 1233. F. Service Connections, 1234. III. Water Rents, 1234. C. Regulation by State or Municipality, 1234. 3. Reasonableness of Rates, 1234. a. Judicial Interference, 1234. d. Basis for Calculating Reasonableness of Rates, 1235. (23/2) Capitalization, 1235. (3^) Net Income, 1235. (4) Depreciation of Market \'alue and Services Ren- dered, 1235. (A-Yz) Effect of a Municipal Ordinance, 1235. V. Contract Oblig-ation to Furnish Water, 1235. VI. Purchase of Waterworks by Municipalities, 1235. CROSS REFERENCES. See the title Water Companies and Waterworks, vol. 11. p. 985, and ref- erences there given. In addition, see ante, AppE.^l and Error, p. 34; Arbitration and Aw.\rd, As to the right to an injunction against the enforcement of a municipal ordi- nance imposing a license fee upon a water companv, see ante. Injunctions, p. 657. I. Franchise, Powers and Privileges. A. Power of State or Municipality to Grant — 2. Exclusive Franchise. — As to the power of a municipal corj^oration to grant an exclusive franchise to a water company, see ante, Muxicip.\l Corporations, p. 895. II. State and Municipal Control. C. Rights and Remedies Where Company Fails to Discharge Duties Imposed by Charter or Contract. — A municipality has the right to treat a 12 U S Enc— 78 1233 988-991 WATER COMPANIES AND WATERWORKS. Vol. XI. contract with a waterworks company as terminated by the latter's breach of its contract obHgation to furnish a continuous adequate supply of wholesome water, and to invoke the aid of a court of equity to enforce its rescission, since the remedy at law by an action for damage is. wholly inadequate. i'*^ The accept- ance by a municipality and its people of improved conditions in a waterworks system, resulting from complaints, does not estop the municipality to rescind the contract with the waterworks company for a breach of its contract obliga- tion to furnish an adequate supply of wholesome water, unless such improved conditions result in the continuous maintenance thereafter of such a supply. ^^^ The maxim that "he who seeks equity must do equity" does not justify a court in denying to a municipality rescission under its crossbill of a contract with a waterworks company which the latter has broken by failing to maintain a continuous and adequate supply of wholesome water, and in affirmatively restraining the municipality from establishing its own system unless it shall do equity to the bondholders of the waterworks company by purchasing the usable parts of the waterworks system. ^^'^ F. Service Connections. — The obligations of the charter of a water com- pany are not unconstitutionally impaired by construing the charter in the light of the statute law and the decisions of the courts at the time the charter was granted, as requiring the company to bear the cost of making service connec- tions. ^^"^ Requiring a water company, upon the theory of an implied contract, to bear the cost of making the service connections which it is its duty, under its charter, to make, does not amount to confiscation and the consequent taking of the company's property without due process of law.^^** A clause in the charter of a water company that it shall not be required to extend its distribut- ing system in any ungraded street is not unconstitutionally impaired by requir- ing the company to make service connections to residents of such a street at its own expense, where it has voluntarily laid its mains in the street, and is sup- plying water therefrom. ^'^'^ III. Water Rents. C. Regulation by State or Municipality — 3. Reasonableness of Rates — a. Judicial Interference. — Judicial interference with a municipal regulation of water rates should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will neces- sarily have the effect to deny just compensation for private property taken for the public use.^"^ But in a clear case of confiscation, it is the right and duty 988-14a. Right of municipality to treat service connections. — Consumers' Co. v. contract as terminated. — Columbus v. Hatch, 224 U. S. 148, 56 L. Ed. 703, 32 Mercantile Trust, etc., Co., 218 U. S. 645, S. Ct. 465. 54 L. Ed. 1193, 31 S. Ct. 105. See ante. 989-16d. Consumers' Co. v. Hatch, 224 RESCISSION, CANCELLATION AND U. S. 148, 56 L. Ed. 703, 32 S. Ct. 465. REFORMATION, p. 10(59 989-16e. Consumers' Co. v. Hatch, 224 989-16a. Facts not estoppmg mu- u. S. 148, 56 L. Ed. 703, 32 S. Ct. 465. nicipality from rescinding contract.- gg^.^g^ j^^i^j^^ interference with mu- Columbus V. Mercantile irust, etc.. Co., „;^:^oi ^^„,,i-,4.;^« ^t r-,*-^^ t^»i^^-,.;i1o r, 218 U. S. 645, 54 L. Ed. 1193 31 S. Ct. "icipal regulation of ra es.-Knoxv, le z;. .,„. . .„^ T^ J r) inr (- Knoxville Water Co., 212 U. b. 1, o3 L,. 105' reversing 161 Fed Rep. 135. See g^, g^^ 39 g ^t. 148. ante, ESTOPPEL, p. 553. _ ^^ ^j^^ ^^^^^^ ^^^^^1^ ^^^ ^^j^i„ ^^^ ^^_ 989-16b. _ Effect of maxim "he who j'orcement of a municipal ordinance fix- seeks equity must do equity."— Colum- i„g maximum water rates on the ground bus V. Mercantile Trust, etc., Co., 218 U. that such ordinance is invaUd under S. 645, 54 L. Ed. 1193, 31 S. Ct. 105, re- Const. U. S.. 14th Amend., as confisca- versing 161 Fed. Rep. 135. See ante, tory, unless the confiscation is clearly ap- MAXIMS, p. 861. parent. Knoxville 7'. Knoxville Water 989-16C. Constitutionality of require- Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. ment that company bear cost of making 148. 1234 A^ol. XI. WATER COMPANIES AND WATERWORKS. 991-994 of the court to annul such regulations. ^^i' d. Basis for Calailating Reasonableness of Rates — (2^) Capitalisation. — Capitalization affords no guide to the present value of the tangible property of a waterworks company which is objecting to the rates fixed by municipal ordinance as confiscatory, where substantially all the common and preferred stock was issued under construction contracts entered into with persons who controlled the corporate action, and was greatly in excess of the true value of the property furnished under the contracts.^^^ (3^) Net Income. — The net income of a waterworks company during the years succeeding the passage of a municipal ordinance fixing maximum water rates, which has never been enforced, should be considered by the courts in determining the reasonableness of such rates.^^^ (4) Depreciation of Market Value and Services Rendered. — A deduction for depreciation from age and use must be made from the estimated cost of repro- ducing a waterworks plant when determining the present value of the tangible property for the purpose of testing the reasonableness of the rates fixed by a municipal ordinance.^^^ When determining the value of the tangible property for this purpose, depreciation represented by the destruction or obsolescence of parts of the original plant and by impairment in value of those parts which remain in existence and continue in use can not be added to the present value of the surviving parts.-^^'' (4^) Effect of a Municipal Ordinance. — The absence of any requirement in a municipal ordinance fixing water rates, that the waterworks company shall continue to give a discount for prompt payment, must be taken into considera- tion when determining, for the purpose of testing the reasonableness of such rates, the reduction in the company's income which will be produced by the enforcement of such ordinance.^^'^ V. Contract Obligation to Furnish Water. The continuing character of a waterworks company's contract obligation to furnish an adequate supply of wholesome water is not met by showing that such supply has been furnished at times, or that, at the time of completion ol the works, the company was able to carry out its contract, nor is nonperform- ance excused by the occurrence of conditions which are likely to happen in a climate of long, dry summers.^^^ VI. Purchase of Waterworks by Municipalities. Power to Purchase. — The legislature of a state may empower a municipal- ity to acquire and operate a private waterworks plant. Nebraska statutes con- ferring such power have recently been construed by the federal supreme court.^^^ 991-25b. Clear cases of confiscation.^ obsolescence and impairment in value. — Knoxville f. Knoxville Water Co., 213 U. Knoxville z\ Knoxville Water Co.. 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. 148. See ante. S. 1. 53 L. Ed. :571. 29 S. Ct. 14^. INJUNCTIONS, p. 657. 993-36c. Reduction in income by en- 992-34a. Circumstances under which forcement of requirement that company capitalization affords no guide to oresent give discount for prompt payment.— value.— Knoxville r. Knoxville Water Knoxville v. Knoxville Water Co.. 212 U. Co., 212 U. S. 1, 53 L. Ed. 371, 29 S. Ct. S. 1. 53 L. Ed. 371. 29 S. Ct, 148. 148. 994-43a. Obligation not met — Facts not 992-35a. Net income of company. — excusing nonperformance. — Columbus v. Knoxville r. Knoxville Water Co.. 212 U. Mercantile Trust, etc., Co.. 218 U. S. 645, S. 1. 53 L. Ed. 371. 29 S. Ct. 148. 54 L. Ed. 1193, 31 S. Ct. 105. reversing 993-36a. Deduction for depreciation 161 Fed. Rep. 135. from age and use.— Knoxville v. Knox- 994-43b. the city of Omaha had the ville Water Co., 212 U. S. 1, 53 L. Ed. power to acquire and operate a private 371. 29 S. Ct. 148. waterworks plant as it existed, with its 993-36b. Depreciation by destruction or outlying distributing systems serving ad- 1235 994 WATER RENTS. Vol. XL What Is Acquired by Purchase. — The acquisition of a waterworks plant as it existed when a city made its election, under legislative authority, to ex- ercise its option to purchase, including the outlying distributing systems serving adjacent suburban towns, must be deemed to have been within the contempla- tion of both the city and the waterworks company, where such system was a single one, having a common source of supply and common main connections therewith, unless the ordinance exercising the option is so plainly invited to the purchase of only so much of the distributing system as lay wholly within the corporate limits as to admit of no other meaning.'*^'^ Appraisal of Waterworks Plant. — The appraisal of a waterworks plant where a municipality elects, under legislative authority, to exercise its option to purchase at a value to be determined by three engineers, one each to be selected by the city and the waterworks company, and the third by the two so selected, is a matter of public concern, and unanimity among the appraisers is therefore unnecessary, the decision of the majority being sufficient.'*"-'^ The val- uation of a waterworks plant, made by such a board of appraisers, is not viti- ated, in the absence of any evidence of actual bad faith, by the examination of the company's books by the appraisers without the consent of the city, or the presence of its representatives, since the strict rules relating to arbitration and awards do not apply.'*^® The commercial value of a waterworks plant as a going concern is properly included in the valuation of the plant by the board of appraisers appointed, where the municipality has elected to exercise its option to purchase, although the ordinance exercising such option provides that nothing shall be paid for the unexpired franchise of the waterworks company .^^^ WATERCOURSE.— See ante. Navigable Waters, p. 914; post, Waters AND Watercourses. WATER RENTS. — See ante. Water Companies and Waterworks, p. 1233. jacent subvirban towns, under Laws Neb. Omaha v. Omaha Water Co., 218 U. S. 1897, c. 10, § 27, providing for the con- 180, 54 L. Ed. 991, 30 S. Ct. 615, affirming struction and maintenance of water- decrees in Omaha Water Co. v. City of works "either within or without the cor- Omaha (1908), 162 F. 225, 89 C. C. A. oorPte limits of the city," supplemented 205, 15 A. & E. Ann. Cas. 498. by § 27 of the same statute, granting the 994-43c. What is acquired by purchase, city power to appropriate any existing —Omaha v. Omaha Water Co.. 218 U. S. waterworks system lying within the city igo, 54 L. Ed. 991, 30 S. Ct. 615. or in part without sucn city, and within ^^. ,„ , AnnraUal nf waterworks ten miles from the corporate limits, and i® . o .^PP'^^i^^^ , °*,,. ^^^^^'^'^^^f^ by Laws 1903, c. 12. providing a m;thod ?t^^"c'-TS"'S^ 'V^"'o^qi' TA C? ^^^i of procedure for acquiring" municipal U. S. 180. 54 L. Ed. 991, 30 S. Ct. 615. water plants, and the creation of a water 994-43e. Valuation not vitiated.— board for their control and management Omaha v. Omaha Water Co.. 218 U. S. and Comp. St. 1907. c. 12a, § 242. em- 180. 54 L. Ed. 991. 30 S. Ct. 015. powering water boards to contract with 994-43f. Commercial value properly in- any municipality adjacent to said city to eluded. — Omaha v. Omaha Water Co., supply such municipality with water. 218 U. S. 180. 54 L. Ed. 991, 30 S. Ct. 615. 1236 Vol. XL WATERS AXD IVATBRCOURSBS. 999 WATERS AND WATERCOURSES. III. Watercourses, 1237. C. Right to Use Water, 1237. 1. In General, 1237. \y2. Rights as between Users in Different States, 1238. D. Obstruction and Diversion, 1238. 1. In General. 1238. IV. Irrigation, 1239. D. Doctrine of Prior Appropriation, 1239. 1. In General, 1239. E. Irrigation Corporations, 1239. 5. Limitation upon Time of Construction of Canal or Reservoir, 1239. F. Appointment of a Water Commissioner, 1239. CROSS REFERENCES. See the title Waters and Watercourses, vol. 11, p. 995, and references there given. In addition, see ante. Admiralty, p. 10; Courts, p. 398; United States, p. 1216. As to the ownership of land formed by accessions and accretions, see ante, Accession, Accretion and Reliction, p. 4. As to loss of land by avulsion, see ante, Accession, Accretion and Reliction, p. 4. As to joinder of defend- ants in an appeal from a decree permanently enjoining the diversion of water, see ante, Appeal and Error, p. 34. As to impairment of the obligations of a contract to divert the waters of a river into another state, see ante. Impair- ment OF Obligation of Contracts, p. 624. As to reservation of waters for irrigation purposes in favor of Indians, see ante, Indians, p. 641. As to pro- hibition of diversion of waters of a stream into another state considered as a violation of interstate commerce, see ante, Interstate and Foreign Commerce, p. 689. As to congressional control over the taking and landing of sponges, see ante. Interstate and Foreign Commerce, p. 689; Navigable Waters, p. 914. As to the right to fix harbor lines, see ante. Interstate and Foreign Com- merce, p. 689; Navigable Waters, p. 914. As to the rights of the owner of an island partially submerged by the building of a dam to increase the depth of water in a harbor, see ante. Navigable W^vters, p. 914. As to judgment adjudicating rights of appropriators of water as res adjudicata, see ante. Res Adjudicata, p. 1065. As to wharves, see post, Wharves and Wharfingers. As to use of waters for mining purposes, see ante. Mines and Minerals, p. 865. III. Watercourses. C. Right to Use Water — 1. In General. — By constitutional or statutory provisions, in some jurisdictions, all unappropriated waters are subject to ap- propriation.'^* Rut this right of appropriation is not an unrestricted right. It 999-14a. Unappropriated waters sub- Under the right of appropriation ject to appropriation. — Schodde v. Twin "Water is diverted to propel machinery Falls Land, etc., Co., 224 U. S. 107, 56 L. in flour mills and saw mills, and to irri- Ed. 686, 32 S. Ct. 470; Bean v. Morris, gate land for cultivation, as well as to 221 U. S. 485, 487, 55 L. Ed. 821, 31 S. Ct. enable miners to work their mining 703, affirming 159 Fed. Rep. 651, 86 C. claims; and in all such cases the right C. A. 519. of the first appropriator, e.\ercised within This is the rule under the constitution reasonable limits, is respected and en- of Idaho, art. 15, § 3. Schodde 7'. Twin forced." Schodde v. Twin Falls Land. Falls Land. etc.. Co., 224 U. S. 107, 56 L. etc.. Co., 224 U. S. 107, 56 L. Ed. 686, 32 Ed. 686. 32 S. Ct. 470. S. Ct. 470. 1237 999-1000 WATERS AND WATERCOURSES. Vol. XL must be exercised with some regard to the rights of the public."'^ The doctrine of appropriation was in force in the state of Sonora Mexico prior to the cession to the United States.^-*" Effect of Patent Confirming a Mexican Grant.— The acquisition of rights as a riparian proprietor which could not be displaced by a subsequent attempt to appropriate the water can not be based upon a patent from the United States, issued pursuant to a decree of the court of private land claims, confirming a Mexican grant to riparian lands, on the theory that such patent not only con- firms the Mexican title, but releases that of the United States.!-*"^ V/2. Rights as between Users Jn Different States. — The federal supreme court will assume, in the absence of Montana legislation to the contrary, that prior appropriators of the waters of an interstate stream at a point in Wyom- ing could acquire rights as against junior appropriators of the waters of the same stream in Montana, enforceable in the latter state.^-*^ D. Obstruction and Diversion — 1. In Gkneral. — No agreement of private riparian owners can sanction the diversion of an important stream outside the boundaries of the state in which it flows ;--*^ and the police power of a state justifies the enactment of a law under which a riparian owner may be prevented from diverting the waters of a stream of such state into any other state, for 999-14b. Appropriation not an unre- stricted right. — Schodde v. Twin Falls Land, etc., Co., 224 U. S. 107, 56 L. Ed. 686. 32 S. Ct. 470. This right to appropriate water, "like the right by prior occupancy to mining ground or agricultural land, is not un- restricted. It must be exercised with reference to the general condition of the country and the necessities of the peo- ple, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual." Schodde v. Tv/in Fails Land, etc., Co., 224 U. S. 107, 56 L. Ed. 686, 32 S. Ct. 470. "The private right to appropriate is subject not only to the rights of lower owners, but to the initial limitation that it may not substantially diminish one of the great foundations of public welfare and health." Hudson County Water Co. V. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. Rule in Idaho. — The current of a river can not be appropriated by a riparian proprietor in Idaho to the extent neces- sary to operate the water wheels used by him to divert the water actually appro- priated for a beneficial use, so as to give him a right of action for the destruction of the current by subsequent appropria- tors, when exercising their right, under Idaho Const., art. 15, § 3, to apply the unused water to beneficial uses, even as- suming the coexistence in that state of a system of riparian rights and the doc- trine of appropriation. Schodde v. Twin Fp11s Land, etc.. Co., 224 U. S. 107, 56 L. Ed. 686, 32 S. Ct. 470. The license given by Idaho Rev. Stat., § 3184, to the owners of land adjacent to any stream, "to place in the channel of, or upon the banks or margin of, the same, rams or other machines for the purpose of raising the waters thereof to a level above the banks requisite for the flow thereof to and upon such adjacent lands," does not confer any power to appropriate, without reference to bene- ficial use, the entire volume of a river or its current, to the destruction of the rights of others to make appropriations of the unused water. Schodde v. Twin Falls Land, etc., Co., 224 U. S. 107, 56 L. Ed. 686, 32 S. Ct. 470. 999-14C. The grantee from the state of Sonora, Mexico, of land on the San Pedro river, can not claim to have ac- quired, under the grant, rights as a riparian proprietor of which he could not be deprived by a subsequent attempt to appropriate the water, since the doctrine of appropriation was, to some extent, at least, in force in that state by custom, irrigation having been practiced in the Santa Cruz Valley prior to the cession to the United States, and the right of ap- propriation, without regard to the riparian character of the lands, having been in force there probably from the time when the Spaniards first settled in the valley. Decree (Ariz. 1907), 89 P. 504, affirmed. Boquillas Land, etc., Co. v. Curtis, 213 U. S. 339, 53 L. Ed. 822, 29 S. Ct. 493. 999-14d. Effect of patent confirming a Mexican grant. — Boquillas Land, etc., Co. V. Curtis, 213 U. S. 339, 53 L. Ed. 822. 29 S. Ct. 493. See ante, PUBLIC LANDS, p. 1012. 999-14e. Rights as between users in different states. — Bean v. Morris, 221 U. S. 485, 55 L. Ed. 821, 31 S. Ct. 703. 1000-24a. Diversion of waters into an- other state. — Hudson County Water Co. V. McCarter, 209 U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. 1238 Vol. XL Jr EIGHTS AXD MEASURES. 1000-1006 use therein.-^'' By such a law neither due process of law nor the equal pro- tection of the laws is denied;--*'' nor are the privileges of citizens of the state from which the waters are diverted denied to the citizens of other states.-^"* IV. Irrigation. D. Doctrine of Prior Appropriation—!. In Ge;ne;ral. — See note 33. The right to appropriate water for irrigation purposes where the doctrine of prior appropriation obtains is not confined to riparian proprietors.^^^ E. Irrigation Corporations — 5. Limitation upon Time of Construction of Canal or Reservoir. — An irrigation company may lose the right to complete the construction of its canal or reservoir by a failure to complete such construc- tion within the time required by statute. ^^^ F. Appointment of a Water Commissioner. — The bounds of judicial au- thority are not transcended by the appointment by a court of a water commis- sioner charged with the duty of distributing the waters of a river among the various irrigation canals according to the adjudged priorities, and imposing upon the parties a pro rata liability for his salary. ^^^^ WATERWORKS.— See ante, Water Companies and Waterworks, p. 1233. WAYS.— See ante. Private Ways, p. 1005. WEAPONS. — See the title Weapons, vol. 11, p. 1006, and references there given. WEIGHTS AND MEASURES.— See the title Weights and AIeasures, vol. 11, p. 1007, and references there given. In addition, see ante, Appeai, and Er- ror, p. 34 ; Police Pov^^er, p. 955. 1000-24b. Prohibiting diversion. — Hud- water from any convenient stream, son County Water Co. z: McCarter, 209 Boquillas Land, etc., Co. v. Curtis, 213 U. U. S. 349, 52 L. Ed. 828, 28 S. Ct. 529. S. 339, 53 L. Ed. 822, 29 S. Ct. 493. See ante, POLICE POWER, p. 955. 1002-34a. Right to appropriate not con- 1000-24C. Hudson County Water Co. v. fined to riparian proprietors. — Boquillas McCarter, 209 U. S. 349, 52 L. Ed. 828, Land, etc., Co. z: Curtis, 213 U. S. 339, 53 28 S. Ct. 529. See ante, CONSTITU- L. Ed. 822, 29 S. Ct. 493. TIONAL LAW, p. 264; DUE PROCESS 1006-55a. The federal government is OE LAW, p. 475. not estopped to rely upon the five years' 1000-24d. Hudson County Water Co. v. limitation prescribed by the Act of March McCarter, 209 U. S. 349, 52 L. Ed. 828, 3, 1891 (26 Stat, at L. 1095-1102, chap. 561), 28 S. Ct. 529. See ante, CONSTITU- for constructing an irrigation canal or TION.\L LAW, p. 264. reservoir, by obtaining an injunction in- 1002-33. The general adoption of the terfering with such construction, where, common law by Howell's Ariz. Code, between the dissolution of the prelimi- 1864, chap. 61, § 7, can not be deemed to nary injunction and the granting of the liave included the cominon-law doctrine perpetual injunction, more than five years of riparian rights, in view of the declara- elapsed, during which the construction tion of the Bill of Rights, art. 22, that was not impeded or hindered. Rio streams susceptible of use for irrigation Grande, etc., Irrig. Co. z'. United States, purposes are public property, and of the 215 U. S. 266, 54 L. Ed. 190, 30 S. Ct. 97. various provisions of chap. 55 of the 1006-55b. Appointment of a water com- Code, giving those owning or possessing missioner. — Montezuma Canal Co. v. irrigable lands the right to divert, by Smithville Canal Co., 218 U. S. 371, 54 means of irrigating canals, necessary L. Ed. 1074, 31 S. Ct. 67. 1239 1009 WIDOWS COMMUNITY. Vol. XI. WHARVES AND WHARFINGERS. II. Kinds of Wharves, 1240. C. Private Wharves, 1240. CROSS REFERENCES. See the title Wharves and Wharfingers, vol. 11, p. 1008, and references there given. As to the right of riparian proprietors to build out private wharves so as to reach the navigable waters of a stream, see ante, Navigable Waters, p. 914. II. Kinds of Wharves. C. Private Wharves. — The owner or lessee of the exclusive right to use a wharf on a navigable stream need not permit its use by others upon payment of reasonable compensation therefor because there is no other wharf at that port, or because such use is convenient, and has been permitted by the former owner or lessor.^^ WHITE SLAVE TRAFFIC. CROSS REFERENCES. As to the importation, keeping or harboring alien women for purposes of prostitution or other immoral purpose under the Immigration Acts of Feb. 20, 1907, c. 1134, 34 Stat., § 899 (U. S. Comp. Stat. Supp. 1907, p. 309), and Act of March 26, 1910, c. 128 (36 Stat, at L. 263, chap. 128, U. S. Comp. Stat. Supp. 1911, p. 501), see ante. Aliens, p. 18. See, also, ante. Constitutional Law, p. 264; Interstate and Foreign Commerce, p. 689; Police Power, p. 955. The Act of June 25, 1910, ch. 395, entitled the "White Slave Traffic Act," had not yet been passed upon at the time this title was compiled. WHOLESALE.— See ante. Retail, p. 1070. WIDOW'S COMMUNITY.— See ante. Executors and Administrators, p. 564. 1009-4a. Owner of lessee of wharf need 2i^ U. S. 345, 5.3 L. Ed. 1024, 29 S. Ct. not permit its use by others. — Weems 661. Steamboat Co. v. People's Steamboat Co., 1240 ^'o^ XI. WILLS. 1023-1032 WILLS. III. Testamentary Capacity, 1241. C. Evidence of Capacity or Incapacity, 1241. VII. Probate and Contest, 1241. C. Notice of Probate, 1241. By2. Evidence, 1242. VIII. Construction and Operation, 1242. J. Property Devised or Bequeathed, 1242. 2. Under Particular Descriptions, 1242. 3. Under Residuary Clause, 1242. L. Vesting of Estates and Interests, 1242. IX. Legacies and Devises, 1242. C. Property Subject to Be Devised, 1242. CROSS REFERENCES. See the title Wills, vol. 11, p. 1015, and references there given. In addition, see ante, Appeal and Error, p. 34; Mortgages and Deeds of Trust, p. 891; Remainders, Reversions and Executory Interests, p. 1057; Res Adjudicata, p. 1065; Shelley's Case, Rule in, p. 1095. III. Testamentary Capacity. C. Evidence of Capacity or Incapacity. — Admissibility. — See note 18. VII. Probate and Contest. C. Notice of Probate. — The caveator may, by his conduct at the trial, pre- clude himself from raising the objection that the statutory requirement of pub- lication against unknown heirs or next of kin has not been complied with.^'^'^ 1023-18. The record in a suit for di- to explain testator's untrue statements vorce brought by the testator, in which that he was a widower and had been he alleged as a cause that his wife was divorced, which had been admitted in incapable of a valid marriage on account evidence as proof of his mental unsound- of a physical malformation, which the ness. Turner z.'. American Security, etc., physicians appointed by the court re- Co., 213 U. S. 257, 53 L. Ed. 788, 29 S. ported, after examination, did not exist, Ct. 420. is not admissible on the issue of the The motive of a wife in signing an testamentary capacity of the testator agreement with her husband, and in join- some thirty years afterv/ards, being too ing with him in a deed, is immaterial, remote in point of time, and leading to where such agreement and deed were only the collateral inquiry whether the state- admitted in evidence on the issue of the ment was actually false, and, if so. husband's testamentary capacity to ex- whether the result of a delusion, or of plain his untrue statements in evidence malice or falsehood. Turner z: American that he was a widower and had been di- Security, etc., Co., 213 U. S. 257, 53 L. vorced from his wife. Decree (1907) 29 Ed. 788, 29 S. Ct. 420. App. D. C. 460, affirmed. Turner v. Amer- Evidence admissible to explain testa- ican Security, etc., Co., 213 U. S. 257, tor's statements. — A written agreement 53 L. Ed. 788, 29 S. Ct. 420. between testator and his wife, in which 1032-67a. Publication against unknown the latter relinquished all claim to her heirs or next of kin. — Probate proceed- husband's property and all right to dower ings in the District of Columbia in which or alimony, and which concluded by a verdict sustaining the will has been ren- stating that it was intended to restore dered by a jury after a trial of the issues to the parties the same contractual and framed under a caveat will not be set property rights as they possessed be- aside at the instance of the caveator, fore marriage, is admissible in evidence who participated in the proceedings, be- 1241 1033-1069 WILLS. Vol. XI. D|. Evidence.— The presumption that a party signing a will by mark, or otherwise, knows its contents, is not a conclusive presumption, but it must prevail in the absence of proof of fraud, undue influence, or want of testamentary capacity attending the execution of the willJ^^ Declarations of an illiterate, testatrix prior and subsequent to the date of her will, as to how she intended to dispose, or had disposed, of her property, are inadmissible to show that she was ignorant of its contents, where there is no evidence of testamentary incapacity at the date of the will, and nothing in the evidence excluded from which it could be inferred, and there is no evidence of fraud or undue influenced ^^ VIII. Construction and Operation. J. Property Devised or Bequeathed — 2. Under Particular Descrip- tions. — See note 48, 3. Under Residuary Clause. — See note 49. L. Vesting of Estates and Interests. — Time of Vesting. — See note 80. IX. Legacies and Devises. C. Property Subject to Be Devised. — See note 26. cause there was no publication, under act June 30, 1902, c. 1329, 32 Stat. 526, against unknown heirs or next ot km, until afttr the verdict, where there was no sugges- tion made at any time that there were any such persons in existence. Lewis v. Luc- kett, 221 U. S. 554, 55 L. Ed. 851, 31 S. Ct. 682, affirming judgment 32 App. D. C. 188. 1033-71a. Presumption of knowledge of contents of will. — Lipphard v. Humphrey, 209 U. S. 264, 52 L. Ed. 783, 28 S. Ct. 561. 1033-71b. Declarations of an illiterate testatrix. — Lipphard v. Humphrey, 209 U. S. 264, 52 L. Ed. 783, 28 S. Ct. 561, affirm- ing 28 App. D. C. 355. 1050-48. Will giving husband all prop- erty owned by testatrix. — Intention of testatrix, a leper, residing at the settle- ment at Kalaupapa, Hawaii, to give her husband not only the propertA' which she left situated there, but all other property owned by her, wherever situated, and of whatever character, clearly appears from a gift to him of "all property known be- longing to me and appearing in my name, situate at Kalaupapa," describing it as three horses and a wooden house, and "other houses owned by me, as well as all other property owned by me." Gray V. Noholoa, 214 U. S. 108, 53 L. Ed. 931, 29 S. Ct. 571. 1051-49. The residuary clause in a will in the usual form, "All the rest and resi- due of my estate, real, personal, and mixed, which I now possess or which may hereafter be acquired by me," is am- ply sufficient to carry the equitable es- tate. Mayer v. American Security, etc., Co., 222 U. S. 295, 56 L. Ed. 206. 32 S. Ct. 95. 1062-80. The widow is not entitled to any part of the income from her deceased husband's realty before the same comes into the executors' hands as trustees under a will directing the executors, who are also named as trustees, to obtain a decree of distribution, as soon as may be, and devising the residue of the testator's es- tate, not before otherwise devised or be- queathed, to the trustees living at the date of the decree of distribution, who, "with respect to all property which shall be so distributed to them," are to reduce the same to possession and manage it, collecting the rents and income, and keep- ing separate the accounts pertaining to the realty, and to pay over to the widow, in lieu of dower, one-third of the income of the "realty last aforesaid." Hawaiian Trust Co. V. Von Holt, 216 U. S. 367, 54 L. Ed. 519, 30 S. Ct. 303. 1069-26. Equitable estate devisable. — Mayer t. American Security, etc., Co., 222 U. S. 295, 56 L. Ed. 206, 32 S. Ct. 95, af- firming 33 App. D. C. 391. 1242 Vol. XI. WITNESSES. 1088-1095 WITNESSES. I. Attendance and Compensation, 1243. A. Attendance, 1243. 4. Subpoena Duces Tecum, 1243. II. Competency, 1243. C. Husband and Wife, 1243. 1. In General, 1243. I. Color No Disqualification, 1243. III. Statutory Changes in Common-Law Rules, 1243. A. Parties and Persons Interested, 1243. IV. Examination of Witnesses, 1244. B. Cross-Examination, 1244. 3. Cross-Examination as to Letters and Records, 1244. G. Refreshing Memory, 1244. V. Impeachment and Corroboration, 1244. A. Impeachment, 1244. 4. Impeachment of One's Own \\"itness, 1244. VI. Credibility of Witnesses, 1244. E. Interest and Bias, 1244. VII. Privilege of Refusing to Testify, 1244. D. Self-incrimination, 1244. CROSS REFERENCES. See the title Witnesses, vol. 11, p. 1077, and references there given. In addition, see ante. Constitutional Law, p. 264; DuK Process oe Law, p. 475; Evidence, p. 558; Expert and Opinion Evidence, p. 569; Interstate AND Foreign Commerce, p. 689; Libel and Slander, p. 824; Privileged Com- munications, p. 1006. As to right of accused to confront witness, see ante. Constitutional Law, p. 264. As to power of interstate commerce commission in relation to attend- ance of witnesses and production of evidence, see ante. Interstate and For- eign Commerce, p. 689. I. Attendance and Compensation. A. Attendance — 4. Subpcena Duces Tecum. — See ante, Production of Documents, p. 1008. II. Competency. C. Husband and Wife — 1. In General. — See note 40. I. Color No Disqualification. — See note 58. III. Statutory Changes in Common-Law Rules. A. Parties and Persons Interested. — See note 70. 1088-40. Wife of accused in federal 1092-58. Color no disqualification.— court. — The wife of the accused in a crimi- American Lithographic Co. t'. Worckme- nal case is not competent to testify in ister, 221 U. S. 603, 55 L. Ed. 873, 31 S. the federal courts on his behalf. Hendrix Ct. 676. V. United States, 219 U. S. 79, 55 h. Ed. 1095-70. The purpose of § 858 of the 102, 31 S. Ct. 193. Revised Statutes. — "By the Act of July 1243 1105-1118 WITXBSSES. Vol. XL IV. Examination of Witnesses. B. Cross -Examination — 3. Cross-Examinatiox as to Lette:rs and Rec- ords. — Error in permitting an improper cross-examination may be cured by the instructions of the court. ^^^^ G. Refreshing Memory. — See notes 35, 37. V. Impeachment and Corroboration. A. Impeachment — 4. Impeachment of One's Own ^^'ITNEss. — See note 55. VI. Credibility of Witnesses. E. Interest and Bias. — See note 63. VII. Privilege of Refusing to Testify. D. Self-incrimination. — See ante, Constitutional Law, p. 264; Due Process of Law. p. 475. 2, 1864, chap. 210, § 3 (13 Stat, at L. 351. U. S. Comp. Stat. 1901, p. 659), it was pro- vided that there should be 'no exclusion of any witness on account of color, nor in civil actions because he is a party to, or interested in, the issue tried.' This provision w^as continued in § 858, Rev. Stat. 'The purpose of the act in making the parties competent was, except as to those named in the proviso, to put them upon a footing or equality with other witnesses, all to be admissible to testify for themselves, and compellable to testify for the others.' Texas z'. Chiles, 21 Wall. 488, 492, 22 L. Ed. 650. Section 858 was amended by the Act of June 29, 1906, chap. 3608 (34 Stat, at L. 618, U. S. Comp. Stat. Supp. 1909, p. 242), which refers the competency of witnesses in the courts of the United States to the laws of the state or territory in which the court is held." American Lithographic Co. v. VVerckme- ister, 221 U. S. 603, 55 L. Ed. 873, 31 S. Ct. 676. 1105-16a. Instructions of court curing error. — Error in permitting an improper use of a letter on the cross-examination of the addressee is cured by instructing the jury that such letter is not to be taken as evidence of the truth of any of its statements, or even allowed to be used for the purpose of cross-examination. Turner z\ American Security, etc., Co., 213 U. S. 257, 53 L. Ed. 788, 29 S. Ct. 420. 1109-35. Refreshing memory. — Wit- nesses for the government in a criminal trial may be asked on direct examination, for the purpose of refreshing their memory, as to conversations with the district at- torney, and as to previous written state- ments made by them to certain govern- ment representatives. Hyde z'. United States, 225 U. S 347, 56 L. Ed. 1114, 32 S. Ct. 793. 1110-37. What is contemporaneous. — It is not error for the trial court in a criminal prosecution to permit the prose- cuting officer to show to a witness for the prosecution, who had related a conversa- tion between himself and one of the de- fendants, a written report made by him of the interview six days after it occurred, in order to refresh the memory of the witness as to the conversation and to en- able him to correct his testimony as to certain of its details. The report, being practically contemporary with the con- versation, is admissible for the purpose of refreshing the memory of the witness, and the matter also is one largely in the discretion ot the trial court. Hyde z. United States. 35 App. D. C. 451, writ of certiorari granted. Hyde z\ United States, 218 U. S. 681, 54 L. Ed. 1207, 31 S. Ct. 228. 1116-55. Statutory provision in District of Columbia where party is taken by sur- prise. — Where an unfriendly witness for the prosecution in a criminal case, having testified to certain facts, is shown a con- tradictory written statement made by him before the trial, to an agent of the prosecution, and denies it to be true, it is permissible to read it to him for the pur- pose of discrediting him under Code D. C, § 1073a (32 Stat. 540), providing that, where a party producing a witness is sur- prised by his testimony, he may be al- lowed to prove statement made by the witness to the party or his attorney at variance to his testimony, while, if the witness after first denying the truth of such a statement, then admits it to be true, it goes to the jury for what it is worth, discredited, as it necessarily is, by his contradictory statements. Hyde t'. United States, 35 App. D. C. 451. writ of certiorari granted. Hvde z\ United States, 218 U. S. 681. 54 L. Ed. 1207, 31 S. Ct. 228. 1118-63. Failure to charge as to personal interest of witness. — A judgment on a verdict will not be reversed because of refusal to instruct the jury that the per- sonal interest of a party exercising his statutory privilege to testify in his own behalf should be considered as affecting his credibility. Standard Oil Co. v. Brown, 218 U. S. 78, 54 L. Ed. 939, 30 S. Ct. 669. affirming judgment (1908), 31 App. D. C. 371. 1244 Vol. XI. IVOMEX EMPLOYEES. 1120 WOMEN.— See note a. WOMEN EMPLOYEES.— See ante, Constitutional Law, p. 264; Due Process of Law, p. 475 : Police Power, p. 955. 1120-a. Rights of women. — Putiing to one side the elective franchise, in the matter of personal and contractual rights women stand on the same plane as the other sex. Their rights in these respects can no more be infringed than the equal rights of their brothers. There is a wide- spread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualif3'ing the conditions under which she should be permitted to toil. That woman's physical structure and the performance of ma- ternal functions place her at a disad- vantage in the struggle for subsistence is oJjvious. This is especially true when the burdens of motherhood are upon her. Even when ihey are not. by abundant testimony of the medical fraternity con- tinuance for a long time on her feet at work, repeating this from daj'^ to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well- being of woman becomes an object of public interest and care in order to pre- serve the strength and vigor of the race. Even though all restrictions on political, personal and contractual rights were taken awa3^ and she stood, so far as statutes are concerned, upon an abso- lutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for pro- tection; that her physical structure and a proper discharge of her material func- tions — having in view not merely her own health, but the well-being of the race — justify legislation to protect her from the greed as well as the passion of man. The two sexes differ in structiire of body, in the ftmctions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the in- fluence of vigorous health upon the fu- ture well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to main- tain the struggle for subsistence. This difference justifies a difference in legisla- tion and upholds that which is designed to compensate for some of the burdens which, rest upon her. MuUer v. Oregon, 208 U. S. 412. 418. .52 L. Ed. 551, 28 S. Ct. 324. See ante. CONSTITUTIONAL LAW, p. 264; POLICE POWER, p. 955. 1245 WORKING CONTRACTS. Vol. XI. WORKING CONTRACTS. I. Formation, 1247. B. Mutual Assent, 1247. C. Writing, 1248. D. Plans, Drawings and Specifications, and Bids, 1248. II. Construction and Operation, 1248. A. Construction Generally, 1248. G. Ownership of Materials. 1248. a. In General, 1248. b. Time When Title Passes, 1248. c. Recognition of Liens of Laborers and Materialmen, 1249. H. Assignment, 1249. I. Commercial or Trade Meaning of Words and Terms, 1249. III. Alteration, Modification and Rescission, 1250. IV. Termination or Forfeiture, 1250. V. Performance or Breach, 1250. D. Time, 1250. 2. Time as Essence, 1250. a. In General, 1250. c. Waiver of Nonperformance, 1250. 3. Annulling and Reletting Government Contracts, 1250. E. Quality of Work, 1252. F. Superintendence and Control, 1252. G. Reference of Matters of Dispute to Architect or Engineer, 1253. H. Excuses for Nonperformance, 1253. 5. Breaking Down of Machinery, 1253. I. Liability for Breach, 1253. 2. Liability of Promisor, 1253. a. Negligence. Default or Improper Interference, 1253. (3) Liability of United States, 1253. 3. Measure of Damages, 1253. J. Release, 1253. VI. Compensation, 1254. C. Ascertainment of Amount, 1254. 3. Extra Work, 1254. 4. Deduction of Expense of Completion, 1254. 5. Repayment in Contingency of Profit, 1254. VII. Extra Work, 1254. A. What Constitutes, 1254. B. Right to Compensation, 1255. VIII. Security for Completion, Penalties and Forfeitures, 1255. Vni|. Bond of Public Contractor for Security of Laborers and Mate- rialmen, 1255. A. Time of Execution, 1255. B. Consideration, 1256. C. Claims and Claimants Secured, 1256. D. Priorities and Preferences, 1258. 1. Preference to United States, 1258. 1246 Vol. XL WORKING CONTRACTS. 1123 2. Lien of L'nited States for Partial Payments on Vessels under Construction, 1258. E. Discharge of Sureties, 1258. F. Subrogation of Sureties, 1259. G. Enforcement, 1259. 1. Statutory Procedure Generally, 1259. 2. Retroactive Eflfect of Amendatory Remedial Statute. 1259. 3. Venue or District of Suit, 1260. 4. Parties— United States. 1260. 5. Copy of Bond and Affidavit That Labor or Material Furnished 1260. 6. Docket Fees, 1260. IX. Actions, 1260. D. Set-Off and Recoupment, 1260. E. Evidence, 1260. F. Subrogation of Surety in Building Contract, 1261. G. Actions on Bond of Public Contractor, 1261. H. Enforcement of Lien of Laborers and Materialmen Allowed by State Law, 1261. CROSS REFERENCES. See the title Working Co^ttracts, vol. 11, p. 1122, and references there given. In addition, see ante. United States, p. 1216. I. Formation. B. Mutual Assent. — The minds of the parties should meet as to the terms of a working contract.- The acceptance of a design for a building submitted in a competition which contemplated the payment of a named sum to each of a number of architects submitting designs, does not constitute a contract for the erection of the building.^^ Certainty and Definiteness. — An irreconcilable conflict between es- sential provisions of a contract for the construction of barges for the United States, which will prevent the contractor from recovering for failure to carry it out, exists where the specifications, which are left in full force, prescribe with much detail the weight and dimensions of the structural materials, while the contract itself provides for the construction of the barges in accordance with the specifications, "with such modifications" as are shown by certain pro- posals contained in the contractor's bid, under which he claims the right to use materials of an inferior size, weight, and power of resistance.-" The power to change details, reserved by the government in a contract for public work, does not make the contract unenforceable for want of cer- tainty and mutuality, there being full provisions for ascertaining a change in the compensation where any such change is proper. ^^ 1123-2. Mutual assent.- — Lord v. United stipulated sum to each of the competing States, 217 U. S. 340, 54 L. Ed. 790, 30 S. architects, in full compensation for their Ct. 5G8. service in preparing and submitting dc- 1123-2a. Acceptance of design. — The ac- signs, and explicitly stated that the stat- ceptance of a design for a public building, ute did not provide for a building, but submitted in the competition devised un- only for designs to be approved by con- dor Act March 2, 1901, c. 805, 31 Stat. 922. gress. Lord t. United States, 217 U._ S. does not bind the government to commis- 340, 54 L. Ed. 790, 30 S. Ct. 568, affirming sion the successful architects to construct judgment (1908), 43 Ct. CI. 282. the building provided for in the separate 1123-2b. Conflict between essential and independent act of February 9, 1903 provisions. — United States z\ Ellicott, 223 (32 Stat. 806, c. 528), where the earlier act U. S. 524, 56 L. Ed. 535, 32 S. Ct. 334. expressly directed that the plans and rec- 1123-2c. Power to change details. — nmmendations thereon were to be trans- United States z: McMullen, 222 U. S. 460, mitted to congress, and the program of 56 L. Ed. 269, 32 S. Ct. 128. competition called for the payment of a 1247 1123-1125 WORKING COXTRACTS. \'o\. XI. C. Writing. — Signature of United States. — A contract for a public work must be regarded as signed by the United States where it recites that it is made by the United States by a specified officer described as chief of the bureau of yards and docks, and is signed by such officer, with his official title a|)pended."''' D. Plans, Drawings and Specifications, and Bids. — See ante, "Mutual Assent," I, B. II. Construction and Operation. A. Construction Generally. — Working contracts are cons,trued by the same rules which are applicable to contracts generally." The object of con- struction is to effectuate the intention of the parties in making a given contract. When the contract is in writing, the language used should be interpreted in the light of the circumstances surrounding the parties at the time the contract was made."^ An interpretation of a working contract not supported by the text of the instrument, and not consonant with the intention of the parties as manifested by the text, is unsound.*^'' G. Ownership of Materials — a. In General. — See note 13. b. Time When Title Passes. — The time when title to a vessel building for the government passes depends upon the provisions of the contract and not. the state lien law.^^^ 1123-3a. Signature of United States.— United States :•. McMullen, 222 U. S. 460, 56 L. Ed. 269, 32 S. Ct. 128. 1124-6. Construction generally. — United States V. EUicott, 223 U. S. 524. 56 L. Ed. 535, 32 S. Ct. 334. 1124-6a. Obiect of construction and in- tention of parties. — Sand Filtration Corp. z: Cowardin, 213 U. S. 360, 53 U Ed. 833, 29 S. Ct. 509. 1124-6b. Ph.°ni\- nrid-e Co. r United States, 211 U. S. 188, 53 U Ed. 141. 29 S. Ct. 81. 1125-13. Ownership of materials. — ■ United States r. Ansonia Brass, etc.. Co.. 218 U. S. 452. 54 L. Ed. 1107. 31 S. Ct. 49. affirming Clarkson v. Stevens, 106 U. S. 505, 27 U Ed. 139, 1 S. Ct. 200. 1125-13a. When title passes. — A vessel building for the federal government be- came, as fast as paid for, the property of the government, so as not to be subject to seizure or encumbrance under state lien laws, where the ownership clause of the building contract provided that parts paid for were to become the sole property of the United States, and required insur- ance to be effected by the contractor on behalf of the government to at least the amount of each partial payment, notwith- standing other provisions in the contract, which gave the government the right to reject defective work or material, or even the entire dredge, if, upon trial and be- fore final acceptance, it proved defective, and to complete the vessel in the event of the annulment of the contract, and re- quired a bond for the faithful performance of the contract, and made the contractor responsible for the payment of all liabil- ities for labor and material incurred in the prosecution of the work. United States z: Ansonia Brass, etc., Co., 218 U. S. 452, 54 U Ed. 1107, 31 S. Ct. 49; mod- ifying Hawes v. Trigg, 110 Va. 165, 65 S. E. 538. and approved in Title Guaranty, etc., Co. z: Crane Co., 219 U. S. 24. 55 U Ed. 72. 31 S. Ct. 140. There is nothing in the other provisions which cuts down or lessens the binding force of the clear and distinct provisions as to ownership. "The parties therein dealt with a specific part of the contract, they expressed themselves clearly upon the subject, and it is not to be presumed, in the absence of clear expression or nec- essary implication, that they intended to supersede this provision in dealing with other specific or general parts of the agreement." United States z'. .Ansonia Brass, etc.. Co., 218 U. S. 452. 54 U Ed. 1107. 31 S. Ct. 49. "Tn Clarkson z\ Stevens. 106 U. S. 505, 27 L. Ed. 139, 1 S. Ct. 200. * * * the contract provided that the materials re- ceived at the yard for the construction of the steamer should be distinctly marked with the letters U. S..' and should be- come the propertv of and belong to the United States. There was no provision that title to the vessel should vest in the United States as fast as parts thereof were constructed, and Mr. Justice Mat- thews, who delivered the opinion of the court, approved the opinion of the court of errors and appeals of New Jersey, ex- pressing the view that the declaration as to the materials excluded the implication sought to he raised as to the title in the unfinished ship; 'for," said Mr. Justice Matthews, 'the inference is obvious, from the particularity of such a provision, that the larger interest would not be left to mere intendment.' P. 516." United States V. Ansonia Brass, etc.. Co., 218 U. S. 452, 54 L. Ed. 1107. 31 S. Ct. 49. 1248 Vol. XI. IVORKIXG COX TRACTS. 1125 c. Recognition of Liens of Laborers and Materialmen. — Provisions for Re- lease of Liens before Partial Payments.— A contract for the construction of a vessel for the federal government which contains no provision for the passing of title to the vessel on partial payments, but, on the contrary, stipulates that, on certain conditions, the title shall vest in the government as collateral security, and provides for the release of liens before partial payments shall be required, must be deemed to have been made in recognition of the rights of those furnishing work or material for the vessel to secure their claims by liens, which it is made the duty of the contractor to provide for in order to protect the title of the government. ^■■^'' H. Assignment.— See post, "Bond of Public Contractor for Security of Laborers and ^Materialmen." VIII i-<. I. Commercial or Trade Meaning of Words and Terms.— Where a working contract gives to a word, term or phrase as therein used, a plain and unambiguous signification, the commercial or trade meaning of such terms, etc., is irrelevant.^-** And in such case, where one of the parties, with full knowl- 1125-13b. United States z\ Ansonia Brass, etc., Co., 218 U. S. 452, 54 L. Ed. 1107. 31 S. Ct. 49. modifying Hawes & Co. V. Trigg Co.. 110 Va. 165, 65 S. E. 538. Intervention in proceedings to enforce lien under state laws. — There is no room for the application of the doctrine gov- erning cases where the United States clamis an mterest in property lawfully in possession of the court which is admin- isienng it, as in equity or in admiralty, and the government intervenes to protect its interest therein, that its rights must be adjudicated in recognition of rights and demands of others interested in the same property, where a vessel, building for the United States, in the hands of a receiver appointed under the state supply lien law, has been released to the United States under a stipulation which fully protects the rights of the United States, ,.ninh claims tlie exclusive right and title to the vessel as far as the parts were com- pleted and paid for. United States r. An- sonia Brass, etc.. Co., 218 U. S. 452, 54 L. Ed. 1107, 31 S. Ct. 49, modifying Hawes T. Trigg Co., 110 Va. 165, 65 S. E. 538. -■^Fert of Stipulation for release of ves- sel in hands of receiver. — A stipulation executed by the United States district at- torney on behalf of the government, con- formably to U. S. Rev. Stat., §§ 3753, 3754, U. S. Comp. Stat. 1901, p. 2530, with a view to obtaining possession of vessels building for the United States, which were in the hands of a receiver appointed in proceedings imder a state supply lien law, does not deprive the United States of any right which it had to assert claims to priority under the building contracts or rights existing by reason of the sov- ereignty of the United States, since the evident purpose of these sections is that neither the United States nor the claim- ants to the property shall lose any rights because of the release under the stipula- tion, but the rights of the parties shall continue to be such as they were before the change of possession. United States ■V. Ansonia Brass, etc., Co., 218 U. S. 452, 54 L. Ed. 1107, 31 S. Ct. 49, modifymg Hawes v. Trigg Co., 110 Va. 165, 65 S. E. 538. 1125-14a. Trade meaning of words "measured in place." — Payment for re- moving the earth which may slide into the channel from the sides or slopes during excavation is so clearly excluded by a dredging contract as to prevent giv- ing the words "measured in place" a trade meaning which demands a different con- struction, where the specifications provide for payment by the cubic yard, measured in place, determined by surveys made be- fore dredging is commenced and after completion, require that the work shall be plainly located by stakes and ranges, which shall be kept continually in place, and preclude extra allowance for exca- vating material different from that therein described, or payment for work outside the designated lines of excavation or be- low the specified depth, and state that any material deposited otherwise than specified and agreed upon must be re- moved by the contractor at his own ex- pense, that no guaranty is given as to the nature of the bottom, and that no claim will be made for any excess or deficiency in the estimate of quantitj^ Bowers, etc.. Dredging Co. v. United States, 211 U. S. 176. 53 L. Ed. 136, 29 S. Ct. 77. "If it be that the court below was cor- rect in its conclusion that the contract gave to the words 'measured in place,' as therein used, a pla-in and unambiguous signification, it is obvious th'\t the abstract or commercial meaning of those words, upon the hypothesis that they have such meaning, was rightly held to be irrele- vant.' " Bowers, etc.. Dredging Co. v. United States, 211 U. S. 176, 53 L. Ed. 136, 29 S. Ct. 77. "To separate the words 'measured in place' from all the other provisions of the 12 U S Enc— 7! 1249 1125-1127 WORKING CONTRACTS. Vol. XL edge of the meaning affixed to the terms of a contract by the other, enters inta a supplemental contract with the same terms, he is bound by such interpreta- tion.i^'' III. Alteration, Modification and Rescission. Power to Change Details. — See ante, "Mutual Assent," I, B. Modification of Schedule by Provisions in Contract Subsequently Ex- ecuted. — Provisions in a schedule for the construction of barges for the United States, giving with much detail the weight and dimensions of structural mate- rials, are not affected by a provision in the contract subsequently entered into for the construction of such barges in accordance with the specifications con- tained in such schedule, "with such modifications" as are shown on a specified drawing outlined in a designated letter, where such drawing, without any ref- erence to weight and dimensions of materials, gives a schedule of displacement,, load, and draft, with the total net weight of the barge, the latter authorizes distribution of such weight in any manner desired, and the contract elsewhere authorizes an inspection of all the "material" furnished, provides for payment for the barges when completed in accordance with the "specifications," letter, and drawing, and that no change or modification involving an alteration in the "specifications as to character, quantity, and quality," of material, which would either increase or diminish the cost of the work, should be made unless agreed to in v/riting.^^^ The provision in regard to the right of the government at any time during the progress of the work to inspect all the materials furnished clearly imports that the contract had precisely settled the character of such material. So also does the provision in regard to final inspection. ^•^'' IV. Termination or Forfeiture. See post, "Annulling and Reletting Government Contracts," \ , D, 3. V. Performance or Breach. D. Time — 2. Time as Essence — a. In General. — Time may be of the es- sence in a working contract. ^^ c. Waiver of Nonperformance. — See post, "Release," \ , J. 3. Annulling and Reletting Government Contracts. — The interest of the government in the result or performance of the work stipulated for in a working contract makes it reasonable to reserve the right to employ someone else, if, when time enough had gone by to show what was likely to happen, it contract, in order to give them an as- 1125-15a. Modification of schedule by sumed or proven abstract trade meaning, subsequent contract. — United States v. repugnant to their significance in the con- Ellicott, 223 U. S. 524, 56 L. Ed. 535, 32 tract, would be to destroy, and not to S. Ct. 334. sustain and enforce, the contract require- 1125-15b. United States v. Ellicott, 223 ments.' "' Bowers, etc.. Dredging Co. v. U. S. 524, 56 L. Ed. 535, 32 S. Ct. 334. United States, 211 U. S. 176, 53 L. Ed. 136, 1127-23. A contract to grind sugar cane 29 S. Ct. 77. implies on its face, if read with any 1125-14b. A contractor for a public im- knowledge of the business, that it has provement, who, pending a dispute with reference to seasons, and that it is more the government as to his right to com- definite than a simple grammatical inter- pensation for certain work, enters into a pretation of the words would express, supplemental contract with the same An illustration suggested at the argument terms and specifications as the original, brings it home to those of us whose ex- with full knowledge of the meaning af- perience has been in the north. A con- fixed by the government to the terms of tract to reap a field of wheat, with no such original contract, which had been mention of time, would not leave the con- insisted upon by it in carrying on previous tractor free to choose his own time. The operations, is precluded from claiming grinding of cane must be done in the compensation under the new contract for grinding season, and a contract to grind any work of that character. Bowers, etc., is a contract to grind in the grinding sea- Dredging Co. V. United States, 211 U. S. son. Porto Rico Sugar Co. v. Lorenzo,. 176, 53 L. Ed. 136, 29 S. Ct. 77. 222 U. S. 481, 56 L. Ed. 277, 32 S. Ct. 133.. 1250 Vol. XL WORKING COXTRACrS. 1128 saw that it probably would not get what it bargained for from the hands of the contractor. But it would be a very severe construction of the contract, a contract, too, framed by the United States, to read the reservation of a right to annul for want of a diligence not otherwise promised, as importing a promise to use such diligence as should satisfy the judgment of the engineer in charge. It is one thing to make the right to continue work under the contract depend upon his approval, another to make his dissatisfaction with progress conclusive of a breach, and in the absence of express terms such construction will not be placed upon such a contract.-"^ Where there is time enough left for the con- tractor to finish the work under the contract when the government terminated their employment, and they might have done the work in time except for pro- hibition, the government is not entitled to assert a breach of contract and hold the contractors for the difference in cost of completion.-''' The word "annul"' in such contract means "refuse to perform further," not "rescind"' or "avoid. "-"'^ At the time when the notice was given, it was merely a ceremony to mark the point of default as a preliminary to employing someone else.-"*^ The obliga- tions of a contract for a public work, so far as applicable to a case of the con- tractor's default, including the right reserved to the government to secure someone else to complete the work, and charge the original contractor with the reasonable dift'erence in cost, remained in force after the government, ex- ercising its option, declared the contract null and void for the contractor's fail- ure to perform, w'ithout prejudice to its right to recover for defaults therein or violations thereof.-'*" The right of the government under a contract for a public work to charge the contractor with the reasonable difference in cost in case of 1128-27a. United States :■. O'Brien, 220 U. S. 321, 0.3 L. Ed. 481, 31 S. Ct. 406. 1128-27b. "The right to terminate the employment of the defendants, coupled with a provision for monthly payments based upon the amount of material re- moved, and therefore, of course, giving- little pay for little work, is the protection expressly stipulated bv the United States."' Jjnited States v. O'Br'ien, 220 U. S. 321, 5.5 L. Ed. 481, 31 S. Ct. 406. "The sole material express promise of the contractors was to complete the work by July 1, 1902. If the work was done at that date, that promise was performed, no matter how irregularly or with what delays in the earlier months. Under its term.s the United States was not con- cerned with the stages of performance, but only with the completed result." United States v. O'Brien, 220 U. S. 321, 55 L. Ed. 481, 31 S. Ct. 406. 1128-27C. "The ill-chosen word 'annul' in the contract, repeated in the notice to the contractors and in the complaint, can not be taken literally in any of them. It means 'refuse to perform further.' not 'rescind' or 'avoid.' Philadelphia, etc., R. Co. V. Howard. 13 H-.w. 307. 340. 14 L. Ed. 157. For, if the contract were made naught by the governor's election and no- tice, all rights under it would be at an end, whereas it provides in terms that rights shall arise upon annulment, which, but for this provision in the contract, the government would not have."' United States z: O'Brien. 220 U. S. 321, 55 L. Ed. 481, 31 S. Ct. 406. In United States r. McMullen, 222 U. S. 460, 56 L. Ed. 269 32 S. Ct. 128, the court said: "The infelicity of the word 'annul' has been adverted to and its mean- ing explained heretofore. If notice had been given before the final breach and abandonment, it would have meant simply that the United States would proceed no further with the contractor under the contract, not that it rescinded or avoided it. Philadelphia, etc.. R. Co. f. Howard, 13 How. 307. 340, 14 L. Ed. 157; United States :•. O'Brien, 220 U. S. 321, 328, 55 L. Ed. 481, 31 S. Ct. 406." 1128-27d. United States v. McMuUen. 222 U. S. 460. 56 L. Ed. 269, 32 S. Ct. 128. 1128-27e. United States v. McMullen, 222 U. S. 460. 56 L. Ed. 269, 32 S. Ct. 128. reversing judgment (1909) McMullen z: United States, 167 F. 460, 93 C. C. A. 96. "The cost to the United States was the least for which it could get the work done under the conditions upon which the gov- ernment was bound to contract, and must be assumed to have been reasonable, in the absence of any evidence to the con- trary. New York ;■. Second Ave. R. Co., 102 N. Y. 572, 55 Am. Rep. 839, 7 N. E. 005; Baer r. Sleichcr. 82 C. C. A. 281, 153 Fed. 129. Tt was less than the sum stip- ulated 3> liquidated dainases. Sr.n Prim- ing-, etc., Ass'n v. Moore, 183 U. S. 642, 46 L. Ed. 366, 22 S. Ct. 240: United States t-. Bethlehem Steel Co., 205 U. S. 105, 119. 51 L. Ed. 731. 27 S. Ct. 450." United States 7'. McMullen. 222 U. S. 460, 56 L. Ed. 260. 32 S. Ct. 128. 1251 1128-1130 WORKIXG CONTRACTS. Vol. XI. a reletting after his default is not defeated because this second contract does not appear to have completed the work intended to be accomplished by the first, where the work done under the new contract was work which the first contractor had agreed to perform.-"* Measure of Recovery. — The excess cost of completing a public work, recoverable by the United States under the contract in case of the failure of the contractor to "complete this contract as specified and agreed upon," cati not be recovered where there was time enough left to complete the work within the limit set by the contract when the government engineer gave the written notice of annulment for failure to prosecute the work "faithfully and diligently," provided for by another clause in the contract, under which was incurred only a forfeiture of reserved percentages, and money due.^'^s E. Quality of Work. — See post, "Superintendence and Control," V, F. F. Superintendence and Control. — Where a working contract provides that the work shall be executed under the supervision of the engineer in charge or his duly authorized agent who shall pass upon the character of the material furnished, ■^'^'^ allow or disallow items for expense of inspection ;^*^'^ or who shall determine the time of performing parts of the w^ork with reference to the suitable condition of the work already done for such performance ;-^'^'^ the agent's judgment or determination is conclusive, and where damage or delay results from such determination, no matter how long the delay or how great the dam- age, the contractor is entitled to no relief, unless it appear that the act of the 1128-27f. United States z'. AIcMuUen, 222 U. S. 460, 56 L. Ed. 269, 32 S. Ct. 128. 1128-27g. United States v. O'Brien, 220 U. S. 321, 55 L. Ed. 481, 31 S. Ct. 406, af- firming judgment (1908) 163 F. 1022, 89 C. C. A. 664. 1130-36a. A strict construction by the inspector under a contract for the con- struction of a jetty in a harbor for the United States, providing for a rigid in- spection of material and the rejection of such as does not conform to specifica- tions, so as to reject stones which do not measure up to requirements at the nar- rowest, thinnest, and shortest points, in- stead of accepting mean or average measures, does not entitle the contractor to damages resulting from such rejection and the use of the rejected material in a place where inferior material was called for, although a supplementary agreement is subsequently made for the acceptance of stones not conforming strictly to the letter of the specifications, where their use would make the work equally stable with those conforming strictly to specifi- cations. Ripley v. United States, 223 U. S. 695, 53 L. Ed. 614, 32 S. Ct. 352. 1130-36b. The decision of the chief of engineers in allowing or disallowing items for expenses of inspection in the construction of a jetty in a harbor for the United States during the suspension of work because of a yellow fever epidemic is conclusive on the court, in the absence of fraud, or gross mistake implying fraud, where the contract authorized the remis- sion of charges for such expenses for so much time as, in the engineer's judgment, may have' been actually lost by epidemic. Ripley v. United States, 223 U. S. 695, 56 L. Ed. 614, 32 S. Ct. 352. 1130-36C. One having a contract with the United States to build a jetty in a har- bor with a provision that crest blocks should be put in place on the jetty as the work progressed, when, "in the judgment' of the United States agent in charge," the core or mound of riprap had sufficiently consolidated, is not entitled to relief be-* cause of any delay, however great, by the refusal of such agent to permit the lay- ing of the blocks, unless such refusal is the result of fraud, or such gross mistake as would imply fraud, but is entitled to recover damages when the refusal was a gross mistake and an act of bad faith. Ripley z\ United States, 223 U. S. 695, 56 L. Ed. 614, 32 S. Ct. 352. "The contract provided that these l)locks sliould be put in place when, 'in the judgment of the United States agent in charge,' the core or mound had suffi- ciently consolidated. Until the agent de- termined that the core had settled, the contractor had no right to do this part of the work. No matter how long the delay or how great the damage, he was entitled to no relief unless it appeared that the refusal was the result of 'fraud, or of such gross mistake as would imply a fraud.' Martinsburg, etc., R. Co. v. March, 114 U. S. 549, 29 L. Ed. 255, 5 S. Ct. 1035; United States z: Mueller, 113 U. S. 1 '.3; 28 L Ed. 946, 5 S. Ct. 380." Ripley z: United States, 223 U. S. 695, 56 L. Ed. 614, 32 S. Ct. 352. 1252 Vol. XI. WORKING CON>TRACTS. 1130-1133 agent was the result of fraud or of such gross mistake as to imply a fraud.''*''* A contractor, by failure to take an appeal to the engineer in charge or the chief engineer from a decision of his agent in charge in such cases, does not lose his right to recover damages for delay resulting from the agent's refusal to al- low the completion of the work where there is no requirement or provision for such appeal in the contract.^^^ Where the contractor attacks the judgment of the agent in charge he has the burden of proving fraud or such gross mistake as implies fraud.-^*^^ G. Reference of Matters of Dispute to Architect or Engineer. — See ante, "Superintendence and Control,"" V, F. H. Excuses for Nonperformance — 5. Breaking Dowx of AIachine^ry. — Performance of an absolute undertaking stipulated for in a working contract is not excused by the repeated breaking down of the machiner\^i^ or facts of that sort. I. Liability for Breach — 2. Liability of Promisor — a. Negligence, De- fault or Improper Interference — (3) Liability of United States. — -See ante, "Su- perintendence and Control," \', F. 3. [Measure of Damages.^ — Amendment for Failure to Prosecute "Work Diligently. — See ante, "Annulling and Reletting Government Contracts," V, D, 3. Expense of Completion.— See post, "Deduction of Expense of Completion,"' VI, C, 4. J. Release. — A contract for the construction of a vessel for the government may provide for the execution of a release to the government in a form therein specified of all claims, etc., arising out of such contract upon the delivery of the vessel.-' ^^ But in such case the parties may waive this part of the contract*^** 1130-36d. The verj^ extent of the power and the conclusive character of his deci- sion raises a corresponding dnty that the agent's judgment shall be exercised not capriciously or fraudulently, but reason- ably, and with due regard to the rights of both the contracting parties. Ripley z'. United States, 223 U. S. 895, 5G L. Ed. G14, 32 S. Ct. 352. A finding by the court that the inspect- or's refusal was a gross mistake and an act of bad faith, necessarily leads to the conclusion that the contractor was en- titled to recover the damages caused thereby. Ripley 7\ United States, 223 U. S. 69.5. '.56 L. Ed. 614. 32 S. Ct. 352. 1130-36e. A contractor with the United States for the construction of a jetty in a harbor, under a contract providing that crest blocks should be put in place on the jetty as the work progressed, when, "in the judgment of the United States agent in charge, the core or mound of riprap had sufficiently consolidated, does not, by submitting to the wrongful re- fusal of such agent to permit the laying of the blocks, on the ground that the mound or core had not sufficiently con- solidated, without taking an appeal to the engineer in charge, lose his right to re- cover damages from such refusal because of another provision for rigid inspection by an inspector appointed on the part of the government before acceptance of "ma- terial" furnished, and the rejection of such as does not conform to the specifi- cations, and making the decision of the "engineer officer" in charge as to "'quality and quantity" final. Ripley v. United States, 223 U. S. 695, 56 L. Ed. 614, 32 S. Ct. 352. 1130-36f. .\ contractor with the United States for the construction of a ielty in a harbor, who claims to have been dam- aged by a wrongful refusal of the govern- ment agent to permit the laying of crest blocks on the jetty when the core or mound had sufficiently settled, under a provision of the contract for such laying when, "in the judgment of the United States agent in charge," the mound had sufficiently settled, has the burden of showing the number of working days l)etween the first wrongful refusal and the first permission to lay blocks, and on how many days he was unable to do labor of another character on the jetty. Ripley 7\ United States, 223 U. S. 695, 56 L. Ed. 614, 32 S. Ct. 352. 1132-41a. Breaking machinery. — Porto Rico Sugar Co. :•. Lorenzo. 222 U. S. 481. 56 L. Ed. 277, 32 S. Ct. 133. Failure to perform an absolute under- taking to grind sugar cane during the grinding season is not excused bv the repeated breaking down of the machinery. Porto Rico Sugar Co. v. Lorenzo, 222 U. S. 481, 56 L. Ed. 277. 32 S. Ct. 133. 1133-49a. Cramp & Sons, etc.. Engine Bldg. Co. i: United States, 216 U. S. 494, 54 L. Ed. 587. 30 S. Ct. 392. 1133-49b. Waiver. — Wlicrc neither the 1253 1133-1134 WORKING CONTRACTS. Vol. XL and the secretary of the navy may accept a release to the government from the builders of a battleship, which leaves for determination in the courts claims for unliquidated damages growing out of the contract.^^'' VI. Compensation. C. Ascertainment of Amount — 3. Extra Work. — See ante, "Release," V, J. 4. Deduction of Expensi-: oe Comple:tion. — The amount necessarily ex- pended by the owner to complete a building contract under an adjustment by the architect, after there had been a strike and cessation of work on account of the character and condition of the labor furnished by the contractor, should be credited against the contract price, where the contract provides that under such circumstances the owner shall have full authority "to arbitrate or adjust the matter," and that the contractor shall make good the loss, to be fixed by the architect or by arbitration. •''•^'^ 5. Rupaymdnt in Continge;ncy of Profit. — A contractor for the construc- tion of a public work realizes a profit "under said contract with the United States," within the meaning of an agreement to repay, in the contingency of such profit, certain moneys advanced, where the contractor, without himself doing the work, made a profit out of his arrangement with a subcontractor, although the work was actually constructed at a heavy loss.^^^ VII. Extra Work. A. What Constitutes. — In contracts for public work whatever the govern- ment had not promised to pay for the contractor had to do in order to offer the contractor company nor tlie goveriiment ifisisted on the delivery of the vessel at the time it was launched and before it was armored, but the government left the vessel with the company, waiting for armor to be put on; armor which it had not then been able to secure and tender 1o the company; and when the question arose as to a settlement, it did not insist upon a release as specified in the contract; this contract was plainl)^ treated by both parties as impracticable, and therefore waived. Cramp & Sons, etc., Engine Bldg. Co. V. United States, 216 U. S. 494, 54 L. Ed. 587, 30 S. Ct. 392. 1133-49C. Judgment, Cramp & Sons Co. V. United States (1908), 43 Ct. CI. 202, reversed. Cramp & Sons, etc., Engine Bldg. Co. v. United States, 216 U. S. 494, 54 L. Ed. 5S7, 30 S. Ct. 392, following Salomon z'. United States, 19 Wall. 17, 22 L. Ed. 46; Redfield v. Win- dom, 137 U. S. 636, 34 L. Ed. 811, 11 S. Ct. 97; United States 7'. Barlow, 184 U. S. 123, 135, 46 L. Ed. 463, 22 S. Ct. 468. Claims for unliquidated damages on account of extra work caused by the fed- eral government are not included in a release given to the United States by the builders of a battleship, of all and all manner of debts, dues, sum and sums of money, accounts, reckonings, claims, and demands whatsoever, in law or in equity, for or by reason of, or on account of, the construction of the vessel under the contract, provided that the release shall not be taken to include claims arising un- der the contract other than those which the secretary of the navy has jurisdiction to entertain, although the release, if in the form specified in the contract, would have extinguished all claims against the United States growing out of such con- tract. Judgment, William Cramp & Sons Co. V. United States (1908), 43 Ct. CI. 202, reversed. Cramp & Sons, etc.. En- gine Bldg. Co. V. United States, 216 U. S. 494, 54 L. Ed. 587, 30 S. Ct. 392. '"The .secretary was of the opinion that, equitably, there was something due to the company, and yet, realizing that that question was not one for his determina- tion, in order that full justice might be done, he consented to a change in the terms of the release, and this he had power to do. Salomon v. United States, 19 Wall. 17, 22 L. Ed. 46; Redfield v. Windom, 137 U. S. 636, 34 L Ed. 811, 11 S. Ct. 197; United States z: Barlow, 184 U. S. 123, 135, 46 L. Ed. 463, 22 S. Ct. 468." Cramp & Sons, etc.. Engine Bldg. Co. V. United States, 216 U. S. 494, 54 L. Ed. 587, 30 S. Ct. 392. 1134-53a. Lupton's Sons Co. f. Auto- mobile Club, 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711. 1134-53b. Judgment (1907), 29 App. D. C. 571, affirmed. Sand Filtration Corp. 57. Cowardin. 213 U. S. 360, 53 L. Ed. 833, 29 S. Ct. 509. 1254 A^ol. XI. WORKING CONTRACTS. 1134-1137 •completed work which he had agreed to finish. ^^'^ A loss occasioned during a typhoon by the pressure and the action of the wind and waves must be borne by the contractor. •5*''^ A contract which required the construction of a bridge in such a manner as not to impede navigation does not authorize a recovery for extra work required, by the exigencies of the situation, for the noninterruption of navigation. ^^'^ B. Right to Compensation.— See ante, "What Constitutes," VII, A. And see also, ante, "Release," V, J. VIII. Security for Completion, Penalties and Forfeitures. See post, "Bond of Public Contractor for Security of Laborers and Alaterial- tnen," VIII>4. Villi . Bond of Public Contractor for Security of Laborers and Ma- terialmen. A. Time of Execution. — Want of consideration can not be urged to defeat an action on the bond of a public contractor, given conformably to Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523), as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), for the protection of laborei^ and materialmen, because it was not executed until ten days after the contract was made, especially where the bond was under seal.'''^^ 1134-56a. Atlantic, etc., Co. v. Philip- pine Islands, 219 U. S. 17, 55 L. Ed. 70, 31 S. Ct. 138. 1134-56b. Loss during a typhoon. — The contractor for a public work must bear the loss occasioned during a typhoon by the pressure of the rock revetment and the action of wind and waves, although the storm would have done no damage had not the structure been previously weakened by a displacement of bulkhead and revetinent by pressure from the in- side fill, where the extent of the govern- ment's liability under the contract was expressly restricted to paying for the re- pair of any break caused by pressure re- sulting from the inud fill, and the con- tractor's responsibility expressly covered damage to the bulkhead or revetment arising from wave action, or from pres- sure of the revetment against the timber structure. Atlantic, etc., Co. v. Philippine Island, 219 U. S. 17, 55 L. Ed. 70, 31 S. Ct. 138. "The case is stronger for the govein- iTient than those upon policies of insur- ance, where courts refuse to look be- hind the immediate cattse to remoter negligence of the insured. General ^\u\. Ins. Co. z'. Sherwood, 14 How. 351, 366, 14 L. Ed. 452; Orient Ins. Co. v. Adams, 123 U. S. 67, 31 L. Ed. 63, 8 S. Ct. 68; Dudgeon v. Pembroke, L. R. 2 App. Cas. 284, 295, 14 Eng. Rul. Cas. 105. Here, as we have said, the plaintiff can not charge the defendant with negligence; the immediate event was one of which the plaintifif took the risk; on general principles of contract it took that risk imless it was agreed otherwise, and it does not matter to the result whether we say that we can not look further l)ack than the immediate cause, or that the undertaking of the government did not extend to ulterior consequences, not specified, of the break for repairing which it undertook to pay, but which it did not cause." Atlantic, etc., Co. v. Philippine Islands, 219 U. S. 17, 55 L. Ed. 70, 31 S. Ct. 138. 1134-560. Work to insure noninterrup- tion of navigation. — The erection, pur- suant to the direction of the government officer in charge, of a temporary liftspan, which was the most feasible and least expensive substitute which could be em- ployed after an accident during the per- formance of a contract to reconstruct and remodel a government bridge over the Mississippi river had carried away a sub- stantial part of the unfinished drawspan, together with the false work supporting the old structure, was contemplated by the contract, so as to preclude extra compensation therefor, where the imme- diate opening of navigation, which would have been seriously interrupted by the restoration of the false work, was im- minent, and the contract, although con- taining many minute stipulations looking to uninterrupted railway service across the bridge, with no express requirement as to the navigability of the river, had fixed a date for the completion of the drawspan sufficiently early ordinarily to insure noninterruption of navigation. Judgment (1903), 38 Ct. CI. 492, affirmed. Phoenix Bridsje Co. v. United States, 211 U. S. 188, 53 L. Ed. 141, 29 S. Ct. 81. 1137-70a. Title Guaranty, etc., Co. v. Crane Co., 219 U. S. 24, 55 L. Ed. 72, 31 S. Ct. 140. 12.-)5 1137 WORKING CONTRACTS. Vol. XL B. Consideration. — See ante, "Time of Execution," Ylliy2, A. C. Claims and Claimants Secured. — The obligation of the bond required by the federal statutes from a public contractor for the protection of any per- son or persons,"^ ^'^ supplying labor or materials for the construction of "public works'"'^'^ is that the- contractors shall make full payment to all persons supply- ing them with labor and materials in the prosecution of the workJ*^*^ Claims for labor and materials supplied to a vessel, the title to which passes to the government as fast as paid iov,"'^^ claims for cartage and towage,'^^* claims for patterns furnished the contractor,'^ ^^ claims of subcontractors furnishing labor and materials/'"^ claims of persons furnishing labor and materials to 1137-70b. "Person or persons." — Man- kin V. United States, 215 U. S. 533, 54 L. Ed. 315, 30 S. Ct. 174. 1137-70C. "Public works usually are of a permanent nature, and that fact leads to a certain degree of association be- tween the notion of permanence and the phrase. But the association is only em- pirical, not one of logic. Whether a work is public or not does not depend upon its being attached to the soil; if it belongs to the representative of the pub- lic, it is public, and we do not think that the arbitrary association that we have mentioned amounts to a coalescence of the more limited idea with speech so absolute that we are bound to read 'any public work' as confined to work on land. It is not necessary to discuss in detail some opinions from the attorney gen- eral's ofifice in cases where the title to the vessel did not pass that looked rather in the opposite direction. It is enough to say that there has been no such clear and established construction as to cause us to yield our own view. On the other hand, the decision of some other courts has been in accord with the judgment be- low and with what we now decide. United States use of Tidewater Steel Co. V. Perth Amboy Shipbuilding & En- gineering Co., 137 Fed. 689, 693; American Surety Co. v. Lawrenceville Cement Co., 110 Fed. 717, 719; United States use of Standard Furniture Co. v. ^IJtna In- demnity Co., 40 Wash. 87, 82 Pac. 171." Title Guaranty, etc., Co. v. Crane Co., 219 U. S. 24, 55 L. Ed. 72, 31 S. Ct. 140. 1137-70d. Hardaway v. National Surety Co., 211 U. S. 552, 53 L. Ed. 321, 29 S Ct. 202. 1137-70e. Title Guaranty, etc.. Co. v. Crane Co., 219 U. S. 24. 55 L. Ed. 72. 31 S. Ct. 140. A vessel building for the United States, the title to which passes to the govern- ment as fast as paid for, is a "public work'' within the meaning of Act Auij- 13, 1894, c. 280, 28 Stat. 278 fU. S. Comp. St. 1901, p. 2523). as amended by Act Feb. 24, 1905, c. 778, ?.?, Stat. 811 fU. S. Comp. St. Supp. 1900, p. 948), requiring a bond from the contractor for the pro- tection of persons furnishing labor or materials for the construction of public works. Title Guaranty, etc., Co. v. Crane Co., 219 U. S. 24, 55 L. Ed. 72, 31 S. Ct. 140, affirming judgment in Same v. Puget Sound Engine Works (1908), 163 F. 168, 89 C. C. A. 618. United States v. Ansonia Brass, etc., Co., 218 U. S. 452, 54 L. Ed. 1107, 31 S. Ct. 49, establishes that as the title to the completed portion of the vessel passed, the laborers and materialmen could not have asserted a lien under the state law and shows that such claimants are within the policy of the statute. "It also contains a strong intimation that they are within the meaning of its words. For it refers to the statute, and says that it was in recognition of the inability of such persons to take liens upon the public property of the United States that congress passed the act, and adds that, in view of this purpose to pro- vide protection for those who could not protect themselves, the statute has been given liberal construction by this court. See, also. United States use of Hill t-. American Surety Co., 200 U. S. 197. 50 L. Ed. 435. 26 S. Ct. 168." Title Guar- antv. etc., Co. v. Crane Co., iv:< V. S. 2^. 55 L. Ed. 72, 31 S. Ct. 140. 1137-70f. Cartage and towage. — Claims for cartage and towage to the place where a vessel is building for the United States are within the obligation of a builder's bond; given conformably to the Act of August 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. Stat. 1901, p. 2523), as amended by Act of February 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. Stat. Supp. 1909, p. 748), for the protection of laborers and materialmen. Title Guaranty, etc., Co. v. Crane Co., 219 U. S. 24. 55 L. Ed. 72, 31 S. Ct. 140. 1137-70g. Patterns. — Claims for pat- terns furnished to the molding depart- ment of the builder of a vessel for the United States, are within the obligation of the latter's bond, given conform.ablv to the Act Aug. 13. 1894. c. 280, 28 Stat.' 278 (U. S. Comp. Stat. Supp. 1901, p. 948), for the protection of laborers and ma- terialmen. Title Guaranty, etc., Co. v. Crane Co.. 219 U. S. 24, 55 L. Ed. 72, 31 S. Ct. 140. 1137-70h. Subcontractors. — Hardaway f. National Surety Co.. 211 U. S. 552, 53 1256 » Vol. XI. WORKING CONTRACTS. 1137 subcontractors,''^" are entitled to the protection of such bond. Assignee or Transferee of Contractor.— A claim for labor and materials L. Ed. 321, 29 S. Ct. 202; Mankin z'. United States, 215 U. S. 533, 54 L. Hd. 315, 30 S. Ct. 174. Persons who are subcontractors.^ Persons who, in view of the financial ena- barrassment of a pul^lic contractor, un- dertake to superintend the completion of a public work and to furnish the neces- sary funds, tor which thej'' are to be paid by an assignment of the reserve ftinu in the hands of the government and by checks or payments tmder the original contract, are not subcontractors fur- nishing labor and materials tor tlie ful- fillment of such original contract, so as to be entitled to the protection of the bond executed pursuant to Act Aug. 13, 1894, c. 280, § 1, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523). Decree (1907), Hard- away & Prowell :•. National Suretj^ C:< 150 F. 465, 80 C. C. A. 283, affirmed. Hardaway v. National Surety Co., 211 U. S. 552, 53 L. Ed. 321, 29 S. Ct. 202, dis- tinguishing Hill z'. American Surety Co., 200 U. S. 197, 50 L Ed. 43fi, 2G S. Ct. ItS. 1137-70i. Mankin ?-. United States, 215 U. S. 533, 54 L. Ed. 315, 30 S. Ct. 174: Hardaway v. National Surety Co., 211 U. S. 552, 53 L. Ed. 321, 29 S. Ct. 202. Tn F^ill V. American Surety Co., 200 U. S. 197. 50 L. Ed. 436, 26 S. Ct. 168, the court of appeals held that one who fur- nished labor or materials in the carrying- out of a contract for public works, al- though such materials were furnished to a subcontractor, to whom a part of the work had been let, could recover upon a bond rriven under the Act of August 13, 1894 (28 Stat, at U 278, chap. 280, U. S Comp. Stat. 1901, p. 2523). Mankin z\ United States, 215 U. S. 533, 54 L. Ed. 315. 30 S. Ct. 174. In the case of United States use of Hill 7'. American Surety Co., 200 U. S. 197, 50 L. Ed. 436, 26 S. Ct. 168, it was held that the obligation of a public con- tractor's bond, when construed in the light of the statute requiring its execu- tion, and looking to the protection of these who supply labor and m_aterials provided for in the original contract, wa^ broad enough to include laborers whu had performed work for a subcontractor who furnished labor or material whicli the original contractor had obligated himself to furnish. Hardaway z^. Na- tional Surety Co., 211 U. S. 552, 53 L. Ed. 321. 29 S. Ct. 202. and see to the same effect Mankin v. United States, 215 U. S. 533, 54 L. Ed. 315, 30 S. Ct. 174. In Hill t: American Surety Co., 200 U. S. 197, 50 L. Ed. 436, 26 S. Ct. 168, it was held that the original contractor ydio em- ployed a subcontractor who b^, G, 2. 4. Parties — United States. — For jurisdictional purposes, the United States is the real party plaintiff in an action on a public contractor's bond executed under the Act of Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. Stat. 1901, p. 2523),''^^ but it is sufficient that suit was begun in the name of the United States to the real plaintiff's use.*^*^" 5. Copy oe Bond and Aeeidavit That Labor or Material Furnished. — The failure of plaintiff, in an action on the bond of a contractor for a public work, given conformablv to Act Aug. 13, 1894, c. 280, 28 Stat. 278 ( U. S. Comp. St. 1901, p. 2523'), as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), for the protection of laborers or materialmen, to apply, as provided in the statute, for a copy of the bond, and furnish an affidavit that labor or materials have been supplied by him for the prosecution of the work, is not fatal to the suit, where no action has been brought by the United States for more than six months from the completion of the work, and affidavits are made and copies filed by intervenors, since, under the circumstances, the omission is only a formal defect."*'"'' 6. Docket Fees. — Each successful claimant in an action on the bond of a public contractor, given conformablv to Act Aug. 13, 1894, c. 280, 28 Stat. 278 (U. S. Comp. St. 1901, p. 2523)', as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. Supp. 1909, p. 948), for the protection of laborers and materialmen, may be allowed the docket fee authorized by Rev. St. U. S. § 824 (U. S. Comp. St. 1901, p. 632), since the claims are several, and repre- sent distinct causes of action in different parties, although consolidated in a single suit.'"''' IX. Actions. D. Set-Off and Recoupment. — Set-Off t)f Expense of Completion. — See ante, "Deduction of Expense of Completion,'' Nl, C, 4. E. Evidence. — Parol Evidence. — Parol evidence is in order to translate at L. 278, chap. 280, U. S. Comp. Stat. v. United States, 213 U. S. 10, 53 L. Ed. 1901, p. 2523), for the protection of per- 675, 29 S. Ct. 324, following United States sons furnishing materials and labor for Fidelity, etc., Co. r. United States, 209 the construction of a public work, do not U. S. 306, 52 L. Ed. 804, 28 S. Ct. 537. apply v.-here the contract with, and the 1137-70t. Davidson Bros. Marble Co. r. bond to, the government, and the con- United States, 213 U. S. 10, 53 L. Ed. tiact under which the labor and materials 675, 29 S. Ct. 324, following United States, were furnished, all antedate the passage etc., Co. v. Kenyon, 204 U. S. 349, 51 L^ of the amandatory act. Davidson Bros. Ed. 516. 27 S. Ct. 381. Marble Co. v. United States, 213 U. S 1137-70u. The objection that the United 10, 53 L. Ed. 675, 29 S. Ct. 324, following States should have been made a party United States Fidelity, etc., Co. v. United can not avail to defeat the action on the States,_^209 U. S. 306, 52 L. Ed. 804. 28 S. bond of a contractor for a public work. Ct. 537. given conformably to Act Aug. 13, 1894, A suit brought in the name of the c. 280, 28 Stat. 278 (U. S. Comp. St. 1901. United States under the Act of August p. 2523), as amended by Act Feb. 24, 13, 1894. on the bond of a public con- 1905, c. 778, 33 Stat. 811 (U. S. Comp. St. tractor, for the beneht of a person fur- Supp. 1909. p. 948), for the protection of nishing materials and labor for the con- persons furnishing labor and materials, struction of a public work, is governed where the suit was begun in the name of by that part of the Act of March 3, 1887 the United States, to the real plaintiflf's (24 Stat, at L. 552, chap. 373), as cor- use. Title Guaranty, etc.. Co. v. Crane rected by the Act of August 13, 1888 (25 Co., 219 U. S. 24, 55 L. Ed. 72, 31 S. Ct. Stat, at L. 434, chap. 865, U. S. Com.p. 140. Stat. 1901, p. 508), which provides that 1137-70v. Title Guaranty, etc., Co. cV no Civil suit shall be brought before anv Crane Co.. 219 U. S. 24, 55 L. Ed. 72, 31 federal circuit court "against any person, S. Ct. 140. by original process or proceeding, in any 1137-70W. Title Guaranty, etc., Co. cV other district than that whoreof he is an Crane Co.. 219 U. S. 24, 55 L. Ed. 72, 31 inhabitant." Davidson Bros. ISIarble Co. S. Ct. 140. 1260 Vol. XI. WYANDOTTE CESSION. 1137-1139 the words and the implications of words into things. In the case of a contract to grind all the sugar cane raised by a lessee upon certain specified plantations leased to him for a certain number of grinding seasons, parol evidence is ad- missible to show what that season is; but the season, when ascertained, is the limit by the very meaning of the words used, when used in a business contract made with regard to one of the great industries of the world."^*^^ F. Subrogation of Surety in Building Contract. — See ante, "Subroga- tion of Sureties," VIII>4, F. G. Actions on Bond of Public Contractor. — See ante, "Enforcement," VIIIK'. G. H. Enforcement of Lien of Laborers and Materialmen Allowed by State Law. — See ante, "Recognition of Liens of Laborers and Materialmen," II, G, c. WORKS OF ART.— See ante, Revenuiv Laws, p. 1071. WOULD.— See note a. WRECKS. — See references under Wrecks, vol. 11, p. 1139. WRIT OF QUO WARRANTO.— See ante, Quo Warranto, p. 1044. WRIT OF RIGHT.— See the title Writ oe Right, vol. 11, p. 1140, and ref- erences there given. WRITS. — See references under Writs, vol. 11, p. 1141. WRITTEN CONTRACTS.— See ante, Frauds, Statute of, p. 600. WYANDOTTE CESSION.— See ante, Indians, p. 641. 1137-75a. Porto Rico Sugar Co. f. recover." The court gave the instruc- Lorenzo. 222 U. S. 481, 56 L. Ed. 277, 32 tion, but substituted the word would foi S. Ct. 133. "could."' It was held, not to constitute 1139-a. Substitution of "would'' for reversible error; that it would be going "could" in an instruction. — An instruc- very far to reverse the judgment op the tion asked was sulxsiantially as follows: supposition that the jury would have '"That plaintiff assumed the ordinary seen a different meaning in the word risks not only actually known to him, "could" than they saw in the word but so far as they could have been known would and in consequence would have to him by the exercise of ordinary care imputed a greater knowledge to the on his part, and that if he knew, or by plaintiff of the risks of his employment, the exercise of care and prudence could Standard Oil Co. v. Brown, 218 U. S. 78, have known, of the existence of the thing 87, 54 L. Ed. 939, 30 S. Ct. 669. See ante, that caused his injury, then he could not PIASTER AND SERVANT, p. 851. 1261 D 000 321 975 5 |ai!i||i|||,|i;|